IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

COMMON SENSE ALLIANCE,

P.J. TAGGARES COMPANY, and

FRIENDS OF THE SAN JUANS,

Appellants,

GROWTH MANAGEMENT HEARINGS

BOARD, WESTERN WASHINGTON

REGION,

Defendant,

and

SAN JUAN COUNTY,

Respondent.

No. 72235-2-1

(consolidated w/72236-1-1)

DIVISION ONE

UNPUBLISHED OPINION

FILED: August 10, 2015 fO S>Cj

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Becker, J.—This opinion affirms a superior court decision rejecting

challenges to San Juan County's critical area ordinances.

The Growth Management Act, chapter 36.70A RCW, directs local

governments to designate "critical areas" and adopt development regulations to

protect them. RCW 36.70A.130(1). "Critical areas" include wetlands, areas that

feed aquifers used for potable water, fish and wildlife habitat conservation areas,

floodplains, and geologically hazardous areas. RCW 36.70A.030(5).
No. 72235-2-1/2

San Juan County began updating its critical areas ordinances in 2006. In

2012 the county enacted the four ordinances at issue in this appeal.

A number of people and entities, including the parties in this appeal, filed

petitions for review of the ordinances with the Western Washington Growth

Management Hearings Board. Appellant Friends of the San Juans raised 52

issues for review by the Board, generally contending that the ordinances did not

go far enough to meet the Act's requirement that local governments protect

critical areas. Appellants Common Sense Alliance and P.J. Taggares Company

(collectively"the Alliance") together raised 27 issues for review, generally

contending that the ordinances went too far to protect critical areas. The Board

heard oral argument from June 24 to 26, 2013, in Friday Harbor. The Board

found in favor of the parties on some issues and affirmed on others.

On October 2, 2013, the Alliance filed a petition for review of the Board's

decision in San Juan County Superior Court, raising six issues. Friends filed its

petition the next day, raising seven issues. In a thorough memorandum, the

superior court upheld the Board's decision on each issue raised.

The Alliance and Friends have both appealed from the decision of the

superior court. The two appeals have been consolidated. The first four issues to

be addressed were raised by the Alliance. The remaining issues were raised by

Friends.
No. 72235-2-1/3

ALLIANCE APPEAL

First Issue: Nexus & proportionality

The Alliance mounts a facial challenge to the critical areas ordinances

adopted by the County. The Alliance argues that the ordinances are fatally

flawed because they do not provide for site-specific considerations of nexus,

proportionality, and reasonable necessity before a critical area buffer may be

imposed upon a project under review.

The County adopted four critical areas ordinances: San Juan County

Ordinance 26-2012 (General), Ordinance 27-2012 (Geologically Hazardous

Areas and Frequently Flooded Areas), Ordinance 28-2012 (Wetlands), and

Ordinance 29-2012 (Fish & Wildlife Habitat Conservation Areas). The arguments

in this case focus primarily on the habitat conservation ordinance.

The habitat ordinance lists "types offish and wildlife habitat conservation

areas." Ordinance 29-2012 at 9. These include areas with which endangered,

threatened, and sensitive species common to the San Juans have a primary

association; shellfish areas; nature preserves; and habitats of local importance.

Ordinance 29-2012 at 9-11. While recognizing that maps exist showing the

approximate location of habitat critical areas, the ordinance states that such

maps are "only a guide to the possible location of these critical areas, and

conditions in the field control." Ordinance 29-2012 at 12. Accordingly, the

ordinance does not specifically identify each habitat conservation area and map

out its boundaries. Rather, it states that all development activities requiring a
No. 72235-2-1/4

permit "must have a final inspection to verify compliance with approved plans and

the requirements of this section." Ordinance 29-2012 at 13.

The ordinance lays out specific protection standards—including a "sitespecific procedure for sizing buffers and tree protection zones." Ordinance 29-

2012 at 16 Figure 3.2. The site-specific procedure takes into account the

proposed land use intensity in addition to the type of water body. Ordinance 29-

2012 at 16.

The Alliance contends that notwithstanding the site-specific procedure, the

habitat buffers are designed to be imposed automatically on a one-size-fits-all

basis. The Alliance argues that the ordinances must be reworked to provide

flexibility so that the size of buffers can be modified according to the actual

impact that a proposed project is expected to have on a critical habitat.

There is no provision for the Department to modify or

eliminate the required buffer based on the nature impact (or lack

thereof) of the project undertaken, the needs of the critical area to

be protected, or the benefit the required buffer may provide to the

habitat giving rise to the condition. The water quality buffer is to be

imposed regardless of whether or not (I) the proposed development

increases, decreases, or makes no change to the water quantity

discharged to the shoreline, or (2) the buffer is "reasonably

necessary" to achieve "no net loss" of habitat function and value as

provided by RCW 36.70A.480(4).

Ifthe proposed development on a property is within 200 feet

from an area containing listed habitat, any tree on that property

within 110 feet of the shoreline is subject to the tree protection

requirements, regardless of whether or not (1) the tree on

surrounding area is modified (2) the development increases,

decreases, or has no effect on the functionality of the tree for

environmental purposes, or (3) the tree in that location is

considered a benefit to the habitat to be protected.

Once a listed habitat is identified within 200 feet, the

ordinance as written eschews any notion of project related nexus

and proportionality as a condition of implementation of water

quality, buffer and tree protection zone. There is no burden on the
No. 72235-2-1/5

local government, nor any discretion authorized for the Department,

to make some rational link demonstrating nexus proportionality or

reasonable necessity under the specific circumstances between the

project and the condition to be imposed. The imposition of water

quality and tree protection buffers on a developing property do pose

significant limitations on the use and further development of the

affected properties.

Br. of Alliance at 17-18 (citations and footnote omitted). In an undeveloped

section of its brief entitled "other issues," the Alliance includes the wetland

buffers in the wetland ordinance in this argument. The Alliance argues that due

to the absence of consideration for nexus and proportionality, the ordinances

violate both RCW 82.02.020 and the takings clause of the United States

Constitution. U.S. Const, amend. V. The Alliance asks this court to reverse the

Board decision upholding the ordinances.

The Board did not rule on issues raised under RCW 82.02.020 or the

takings clause, recognizing it lacked authority to adjudicate issues other than

compliance with the Growth Management Act. RCW36.70A.280(1). The

superior court concluded that these issues were not ripe because the Alliance did

not challenge a specific decision about a specific parcel of land.

Facial challenges to land use ordinances have been reviewed under RCW

82.02.020 and under the takings clause. See, e.g.. Citizens' All, for Prop. Rights

v. Sims. 145 Wn. App. 649, 656, 187 P.3d 786 (2008). review denied. 165Wn.2d

1030 (2009); Guggenheim v. City of Goleta. 638 F.3d 1111, 1116-17 (9th Cir.

2010), cert denied, 131 S. Ct. 2455 (2011). We will address the facial challenge

on the merits.
No. 72235-2-1/6

1. RCW 82.02.020

The Alliance first argues that the ordinances violate RCW 82.02.020. The

meaning of RCW 82.02.020 is a question of law reviewed de novo. Isla Verde

Int'l Holdings. Inc. v. City of Camas. 146 Wn.2d 740, 757, 49 P.3d 867 (2002).

In the late 1970s, several counties authorized the imposition of fees on

new development to pay for, among other things, parks, schools, roads, police,

and fire services. Developers and homeowners who paid the fees sued,

challenging the counties' authority to impose the fees. The Supreme Court held

that the fees were really taxes and that no statute granted local governments the

authority to impose taxes. Hillis Homes. Inc. v. Snohomish County. 97 Wn.2d

804, 808, 650 P.2d 193(1982).

In response to Hillis Homes, the legislature amended RCW 82.02.020,

adding the language at issue here. R/L Assocs.. Inc. v. City of Seattle. 113

Wn.2d 402, 408-10, 780 P.2d 838 (1989), citing Laws of 1982, 1st Ex. Sess., ch.

49, § 5. As amended, RCW 82.02.020 prohibits local governments from

imposing direct or indirect taxes, fees, or charges on the development,

subdivision, classification, or reclassification of land.

No county, city, town, or other municipal corporation shall impose

any tax, fee, or charge, either direct or indirect, on the construction

or reconstruction of residential buildings, commercial buildings,

industrial buildings, or on any other building or building space or

appurtenance thereto, or on the development, subdivision,

classification, or reclassification of land. However, this section

does not preclude dedications of land or easements within the

proposed development or plat which the county, city, town, or other

municipal corporation can demonstrate are reasonably necessary

as a direct result of the proposed development or plat to which the

dedication of land or easement is to apply.
No. 72235-2-1/7

This section does not prohibit voluntary agreements with

counties, cities, towns, or other municipal corporations that allow a

payment in lieu of a dedication of land or to mitigate a direct impact

that has been identified as a consequence of a proposed

development, subdivision, or plat.

RCW 82.02.020. RCW 82.02.020 requires strict compliance with its terms.

Trimen Dev. Co. v. King County. 124 Wn.2d 261, 270, 877 P.2d 187 (1994); R/L

Associates, 113 Wn.2d at 409.

The Alliance views the habitat ordinance as an exaction or dedication of

the land that must be devoted to the buffer areas. According to the Alliance, the

ordinance is flawed because it lacks a procedure to determine if, in a particular

development proposal, the buffers are "reasonably necessary as a direct result"

of the proposed development. The "reasonably necessary" requirement of RCW

82.02.020 incorporates the nexus and rough proportionality test articulated in

Nollan v. California Coastal Commission. 483 U.S. 825, 107 S. Ct. 3141, 97 L.

Ed. 2d 677 (1987), and Dolan v. City of Tigard. 512 U.S. 374, 114 S. Ct. 2309,

129 L. Ed. 2d 304 (1994).

The Alliance contends the habitat ordinance is like the King County landclearing ordinance in Sims. That ordinance was invalidated because it failed "to

relate the clearing limit to the nature and extent of the proposed development on

the lot." Sims. 145 Wn. App. at 668. Because the clearing limits were not

"impact specific," the ordinance did not satisfy the requirement for proportionality.

Sims, 145 Wn. App. at 668.

The County persuasively distinguishes Sims. The ordinance at issue in

Sims required all property owners in the rural residential zone to limit land
No. 72235-2-1/8

clearing to a maximum of 50 percent, without any mechanism for relating the

extent of the restriction to specific features of the property. That is not the case

with the San Juan County habitat ordinance. As the Board concluded, the

amount of land to be devoted to buffers will depend on a number of factors

specific to a site proposed for development.

The requirement for buffers satisfies the "reasonably necessary" test

under RCW 82.02.020 for the additional reason that it is supported by the best

available science. The Act requires local governments to "include the best

available science in developing policies and development regulations to protect

the functions and values of critical areas." RCW 36.70A. 172(1). The record

must contain evidence that the county "considered the best available science

substantively in its development of the critical areas ordinance." Yakima County

v. E. Wash. Growth Mgmt. Hr'gs Bd.. 168 Wn. App. 680, 704, 279 P.3d 434

(2012). A county or city departing from science-based recommendations should:

(i) Identify the information in the record that supports its

decision to depart from science-based recommendations;

(ii) Explain its rationale for departing from science-based

recommendations; and

(iii) Identify potential risks to the functions and values of the

critical area or areas at issue and any additional measures chosen

to limit such risks. State Environmental Policy Act (SEPA) review

often provides an opportunity to establish and publish the record of

this assessment.

WAC 365-195-915(c).

San Juan County identified the best available science as the first step in

updating the critical area ordinances. The County's best available science is

found in a 530-page synthesis prepared by a team of scientists and natural

8
No. 72235-2-1/9

resource planners for the San Juan County Planning Commission. It is a

summary of the available scientific studies on each of the topics it addresses,

including habitat conservation areas. It identifies "management options the

County might employ to better protect these areas." Administrative Record (AR)

at 3479. At the end of each chapter, the document lists the scientific literature

relied on to support the conclusions reached. After this document was prepared,

the County received recommendations for amendments to the existing

regulations and considered the public input before adopting the final ordinances.

The County argues that the buffer requirements in the habitat ordinance

satisfy the nexus and proportionality test incorporated into RCW 82.02.020

because they are supported by the best available science. This argument is

supported by Kitsap Alliance of Property Owners (KAPO) v. Central Puget Sound

Growth Management Hearings Board. 160 Wn. App. 250, 255 P.3d 696, review

denied. 171 Wn.2d 1030 (2011). cert, denied. 132 S. Ct. 1792 (2012). KAPO

arose out of Kitsap County's efforts to update its critical areas ordinances. The

County adopted an ordinance, approved by the Growth Management Board,

providing for a marine shorelines buffer of 50 feet in urban areas and 100 feet in

rural and semi-rural areas. Because the county had "considered the best

available science and employed a reasoned process in adopting its shoreline

critical areas ordinance, including the buffers for urban, semirural, and rural

shorelines," the court concluded that the permit decisions the County based on

those regulations would satisfy the nexus and rough proportionality tests. KAPO.

160 Wn. App. at 273-74, citing Honesty in EnvtI. Analysis & Legislation (HEAL) v.
No. 72235-2-1/10

Cent. Puget Sound Growth Mgmt. Hrgs. Bd.. 96 Wn. App. 522, 534, 979 P.2d

864 (1999); see also Olympic Stewardship Found, v. W. Wash. Growth Mgmt.

Hr'gs Bd.. 166 Wn. App. 172, 274 P.3d 1040, review denied. 174 Wn.2d 1007

(2012).

The County's position is also supported by Trimen. Trimen arose out of a

dispute about King County's authority to enact and enforce a park fee ordinance.

The ordinance made final approval of subdivisions contingent on reservation or

dedication of land for the open space and recreational needs of the subdivision's

residents, or payment of a fee-in-lieu thereof. A development company filed an

action challenging the park fee ordinance under RCW 82.02.020, seeking

restitution of the fees it had paid in lieu of dedicating land. Relevant here is the

Supreme Court's rejection of the developer's argument that the county had failed

to identify a direct impact or result of its development requiring mitigation. The

court determined that the county's previous comprehensive assessment of its

park needs, even though itwas not a site-specific study, showed that the park

fees were reasonably necessary as a direct result of Trimen's development:

Although Trimen is correct that King County did not conduct a sitespecific study, the record indicates that the ordinance's

requirement—to either dedicate land for open space or pay a fee in

lieu of dedication—was reasonably necessary as a direct result of

Trimen's development. See View Ridge Park Assocs. v. Mountlake

Terrace. 67 Wn. App. 588, 599, 839 P.2d 343 (1992) (ordinance

adopted prior to the filing of a plat application can be construed as

a measure taken to mitigate a direct impact that has been identified

as a consequence of a proposed development), review denied. 121

Wn.2d 1016 (1993).

King County conducted a comprehensive assessment of

park needs in a 1985 report titled, Interim Assessment of King

County Park Needs. The report indicated that there was a deficit of

approximately 107 park acres in the Northshore area serving the

10
No. 72235-2-1/11

Winchester Hills I and II subdivisions. Based on adopted county

standards, the report stated that over 300 acres of additional park

land will be required in this area by the year 2000 to provide for the

projected increase in population. Trimen's proposed subdivisions,

with an expected occupancy average of three people per each of

112 potential residential units, created a need for an additional 2.52

acres of park land. The dedication or reservation of open space

requirement of KCC 19.38, calculated at a reduced, negotiated

figure of 5 percent, would have resulted in 2.096 acres of park and

open space land. We conclude therefore that the fees imposed in

lieu of dedication were reasonably necessary as a direct result of

Trimen's proposed development. See Dolan v. Tigard. 62 U.S.L.W.

4576 (U.S. June 24, 1994) ("rough proportionality" between

required dedication and impact of proposed development).

Trimen. 124 Wn.2d at 274. Cf, Isia Verde. 146 Wn.2d 740 (open space set aside

ordinance invalidated under RCW 82.02.020 because unlike in Trimen. there was

no comprehensive study backing up the city's claimed need for open space to

serve projected development).

Here, as in Trimen, the challenged ordinances impose limits on

development near critical areas and require buffers based on a comprehensive

study of the effect of development near critical areas. The county's "best

available science" document was prepared as the first step in updating the

ordinances, and it demonstrates that buffers are reasonably necessary to protect

critical fish and wildlife habitat. We reject, as the Supreme Court did in Trimen,

the argument that a comprehensive study cannot support the imposition of

development regulations unless it looks at a specific development proposed.

Trimen. 124 Wn.2d at 274.

We conclude the critical area ordinances do not violate RCW 82.02.020.

11
No. 72235-2-1/12

2. Constitutional argument—Nollan and Dolan

The Alliance, supported by the Pacific Legal Foundation as amicus, also

argues that the buffers required by the habitat ordinance constitute

unconstitutional conditions in violation of Nollan and Dolan. Again, the argument

is that the ordinance impermissibly imposes inflexible blanket rules, like requiring

a water quality buffer or protection of all trees within 110 feet of aquatic critical

areas.

Both Nollan and Dolan involved permits. The landowner in Nollan

was given a permit to build a house on the beach in California on the condition

that he dedicate a public easement across his property to permit physical access

by the public to the public beach near Nollan's property. This was necessary

according to the government because the development would block the public's

view of the beach. The United States Supreme Court invalidated this condition,

finding there was no nexus between the impact of Nollan's proposed

development (blocking the public's w'ewof the beach) and the condition imposed

(granting public, physical access to the beach across Nollan's property). The

landowner in Dolan was given a permit to double the size of her hardware store

and add a paved parking lot. Because part of the lot was in the adjacent creek's

100-year floodplain and a study had shown flooding would be exacerbated by

increased development, the city conditioned her permit on the dedication of a

portion of her property for improvement of a storm drainage system. The

Supreme Court found no problem with this condition because it had an obvious

nexus with the impact of the particular development. Because the cityfound that

12
No. 72235-2-1/13

new development would also worsen traffic congestion in the area, the city also

required her to dedicate a strip of land as a public greenway for pedestrians and

bicyclists. The Supreme Court found this condition lacked proportionality. "It is

difficult to see why recreational visitors trampling along petitioner's floodplain

easement are sufficiently related to the city's legitimate interest in reducing

flooding problems along Fanno Creek, and the city has not attempted to make

any individualized determination to support this part of its request." Dolan. 512

U.S. at 393. Further, the court noted that while the traffic study concluded that a

pedestrian lane could alleviate some of the congestion caused by increased

development in the area, nowhere did anyone find that it would. "No precise

mathematical calculation is required, but the city must make some effort to

quantify its findings in support of the dedication for the pedestrian/bicycle

pathway beyond the conclusory statement that it could offset some of the traffic

demand generated." Dolan. 512 U.S. at 395-96.

The Nollan/Dolan test is a special application of the unconstitutional

conditions doctrine that protects the Fifth Amendment right to just compensation

for property the government takes when owners apply for land-use permits.

Dolan. 512 U.S. at 385; Koontz v. St. Johns River Water Mgmt. Dist.. U.S.

,133 S. Ct. 2586, 2594, 186 L. Ed. 2d 697 (2013). Under the unconstitutional

conditions doctrine, the government may not deny a benefit to a person because

he exercises a constitutional right. This principle "vindicates the Constitution's

enumerated rights by preventing the government from coercing people into giving

them up." Koontz. 133 S. Ct. at 2594.

13
No. 72235-2-1/14

The Nollan/Dolan test reflects two realities of the land use permitting

process. First, land use permit applicants are especially vulnerable to coercion

because the government often has broad authority to deny a permit that is worth

far more than the property it would take. And second, many proposed land uses

threaten to impose costs on the public that dedications of property can offset.

Koontz. 133 S. Ct. at 2594-95. A local government may choose whether and

how a permit applicant is required to mitigate the impacts of a proposed

development, but it may not leverage its legitimate interest in mitigation to pursue

governmental ends that lack an essential nexus and rough proportionality to

those impacts. Koontz. 133 S. Ct. at 2595.

Certainly, a land use ordinance can be facially challenged as a regulatory

taking. But the Alliance has not cited a case where the constitutional

Nollan/Dolan test has been applied to invalidate land use ordinances of general

application, as the Alliance seeks to do here. Indeed, it appears that the courts

have confined Nollan/Dolan analysis to land use decisions that condition

approval of a specific project on a dedication of property to public use:

We have not extended the rough-proportionality test of Dolan

beyond the special context of exactions—land-use decisions

conditioning approval of development on the dedication of property

to public use.

City of Monterey v. Del Monte Dunes at Monterey. Ltd.. 526 U.S. 687, 702, 119

S. Ct. 1624, 143 L. Ed. 2d 882 (1999); see also Koontz. 133 S. Ct. at 2594-96.

This makes sense. An ordinance requiring a buffer zone is a legislative act, not a

land use decision. Legislative determinations do not present the same risk of

coercion as adjudicative decisions. See Koontz. 133 S. Ct. at 2594-95. The

14
No. 72235-2-1/15

briefing here provides inadequate authority for an extension of the Nollan/Dolan

test to a facial challenge of a critical areas ordinance.

Even assuming the Nollan/Dolan test can be applied to determine whether

a land use ordinance constitutes a taking, the Alliance has not shown that a

taking occurred by the enactment of the San Juan County critical areas

ordinances.

Because the Nollan/Dolan test is a special application of the

unconstitutional conditions doctrine, every United States Supreme Court decision

applying it has asked first whether the government demands an exaction that

would be an unconstitutional taking outside the permitting process. Nollan. 483

U.S. at 834; Dolan. 512 U.S. at 384; Koontz. 133 U.S. at 2598-99. If the exaction

does not constitute a taking, the condition is not unconstitutional and the inquiry

ends.

First, we are unpersuaded that the requirement for buffers is an exaction

or a dedication. No interest in land will be transferred or conveyed by the

operation ofthe San Juan County ordinances. The property owner can use the

buffer for all authorized uses and can exclude others. In this respect, the buffers

are like setbacks in zoning regulations.

Second, the United States Supreme Court has recognized three types of

regulatory takings underthe Fifth Amendment to the United States Constitution:

(1) appropriation ofland through physical occupation, (2) the deprivation ofall

economically viable uses, and (3) those that fail the three-part test of Penn

Central Transportation Co. v. Citv of New York. 438 U.S. 104, 124, 98 S. Ct.

15
No. 72235-2-1/16

2646, 57 L. Ed. 2d 631 (1978). Lingle v. Chevron U.S.A.. Inc.. 544 U.S. 528,

538-41, 125 S. Ct. 2074, 161 L. Ed. 2d 876 (2005). The Alliance does not allege

that the ordinances are any of these three types of takings. The buffers required

by the San Juan County ordinances do not constitute a physical occupation. Cf.

Loretto v. Teleprompter Manhattan CATV Corp.. 458 U.S. 419, 426, 102 S. Ct.

3164, 73 L. Ed. 2d 868 (1982) (physical occupation by installation of

telecommunications equipment). The ordinances are not like the regulation in

Lucas v. S.C. Coastal Council. 505 U.S. 1003, 1033, 112 S. Ct. 2886, 120 L Ed.

2d 798 (1992), which was considered a taking because it left the plaintiff's land

"valueless." San Juan County included a "reasonable use exception" to ensure

that some development could be allowed where strict application of the

ordinances would deprive an owner of all economically viable use of their land

(e.g., where the entire parcel constitutes a critical area). Under Lucas, where a

regulation is not a "total taking," it is not a taking at all. Lucas, 505 U.S. at 1030.

Finally, the Penn Central test focuses on the precise impacts of particular

regulations on a particular claimant in light of a specific development proposal. It

does not provide an analysis that can be used to invalidate the critical areas

ordinances.

In summary, the Alliance's facial challenge fails. Site-specific flexibility

was built into the ordinances through exemptions, buffer averaging, and the

reasonable use exemption. The County's use of best available science

establishes the reasonable necessity of buffers to protect habitat and

demonstrates a proportional relationship between the impacts of development

16
No. 72235-2-1/17

and the measures adopted to mitigate it. The ordinances do not violate the

unconstitutional conditions doctrine.

Second Issue: Designation of critical areas

The Alliance next argues that the habitat ordinance violates the Growth

Management Act and its associated regulations and is not supported by

substantial evidence.

Comprehensive plans and development regulations passed to comply with

the Growth Management Act are presumed valid upon adoption. RCW

36.70A.320(1). Parties may file a petition for review of such regulations with the

Growth Management Board. RCW 36.70A.290.

To prevail before the Board, the challenger must demonstrate that the

challenged actions are not in compliance with the Growth Management Act.

RCW 36.70A.320(2). The Board is required to find compliance unless it

determines that the challenged regulation is clearly erroneous in view of the

entire record before it and in light of the goals and requirements of the Act. RCW

36.70A.320(3). In reviewing planning decisions by local governments, the

legislature has instructed the Board to recognize the broad range of discretion

that may be exercised by counties and cities and to grant deference to them in

how they plan for growth. RCW 36.70A.320(1). The Board must give the local

government's actions a critical review. This is a more intense standard of review

than the arbitrary and capricious standard. Swinomish Indian Tribal Cmtv. v. W.

Wash. Growth Mgmt. Hr'gs Bd.. 161 Wn.2d 415, 435 n.8, 166 P.3d 1198(2007).

17
No. 72235-2-1/18

Parties may file a petition for review of the Board's decision in superior

court within 30 days of the final order of the Board. RCW 36.70A.300(5).

Decisions of the Growth Management Hearings Board are reviewed under the

Administrative Procedure Act, chapter 34.05 RCW. RCW 36.70A.300(5), citing

RCW 34.05.514: Lewis County v. W. Wash. Growth Mgmt. Hr'gs Bd.. 157Wn.2d

488, 497, 139 P.3d 1096 (2006).

Under the Administrative Procedure Act, the burden of demonstrating

invalidity of an agency action is on the party asserting invalidity. RCW

34.05.570(1 )(a). A court may grant relief from a decision of the Board only under

certain, enumerated circumstances including (1) ifthe Board has erroneously

interpreted or applied the law or (2) if the order is not supported by evidence that

is substantial when viewed in light of the whole record before the court. RCW

34.05.570(3). "Substantial evidence" is evidence sufficient to persuade a fairminded person of the truth of a declared premise. King Countyv. Cent. Puget

Sound Growth Mgmt. Hr'gs Bd.. 142 Wn.2d 543, 553, 14 P.3d 133 (2000).

The Alliance argues that the County's system for designating critical areas

violates RCW 36.70A.480 because it uses performance standards to identify the

critical areas during the permitting process rather than specifically identifying

them on a map. The Board rejected the argument that RCW 36.70A.480

requires counties to map and specifically identify shoreline critical areas, finding

there is no definition in the statute for the term "specific areas," and

these Petitioners cite no legal authority to support the argument.

To the contrary, Department of Commerce regulationsspecifically

anticipate the need to designate critical areas using "maps" and/or

"performance standards," with a preference for performance

18
No. 72235-2-1/19

standards when adopting land use regulations because maps are

less precise. WAC 365-190-040(5)(b).

Board decision at 90.

We agree with the Board and find the Alliance's construction of the statute

unpersuasive. RCW 36.70A.480(5) was passed by the legislature to clarify its

intent that all shorelines are not per se critical areas. Laws of 2003, ch. 321, §1.

The statute states that shorelines are not critical areas except to the extent that

they meet the definition of critical area provided by RCW 36.70A.030(5).

(5) Shorelines of the state shall not be considered critical

areas under this chapter except to the extent that specific areas

located within shorelines of the state qualify for critical area

designation based on the definition of critical areas provided by

RCW 36.70A.030(5) and have been designated as such by a local

government pursuant to RCW 36.70A.060(2).

RCW 36.70A.480. Because the County did not classify all shorelines as per se

critical areas, it did not violate RCW 36.70A.480(5).

As the Board recognized, WAC 365-190-040(5) explicitly contemplates

that counties will officially designate critical areas at the time of processing a

permit or a development authorization. WAC 365-190-040(5)(b). Counties

designating critical areas first engage in "classification"—defining categories to

which natural resource lands and critical areas will be assigned. WAC 365-190-

040(4). "Not all areas classified by state agencies must be designated, but such

areas may be likely candidates for designation." WAC 365-190-040(4)(b).

"Designation means, at a minimum, formal adoption of a policy statement, and

may include further legislative action. Designating inventoried lands for

comprehensive planning and policy definition may be less precise than

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No. 72235-2-1/20

subsequent regulation of specific parcels for conservation and protection." WAC

365-190-040(5)(c). The ordinances at issue here constitute a "formal adoption of

a policy statement" that can be used to identify critical areas "during the

processing of a permit or development authorization." WAC 365-190-

040(5)(b)(c).

The Alliance asserts that the Board's decision is inconsistent with another

decision of the Board, where it rejected a similar, site-by-site assessment

process. Br. of Alliance at 28, citing Tahoma Audubon Soc'v v. Pierce County.

No. 05-3-0004C, 2005 WL 2227915 (Wash. Cent. Puget Sound Growth Mgmt.

Hrgs. Bd. July 12, 2005) (Final Decision and Order). In Tahoma Audubon, the

Board did reject Pierce County's site-by-site assessment process to be

performed during the permit application process. But as the superior court

correctly noted, the Board did not reject Pierce County's assessment process

because it was site-by-site. Rather, Pierce County's assessment process was

rejected because it had deleted all marine shorelines from its list of critical areas.

Tahoma Audubon. 2005 WL 2227915, at *43.

We conclude that the Alliance has failed to establish that the County's

system for designating critical areas violates the Act. Mapping is not required.

Third Issue: WAC 365-190-030(6)

In what appears to be a variation of the second issue, the Alliance argues

that the fish and wildlife habitat conservation ordinance fails to comply with the

requirements definition provided in WAC 365-190-030(6).

"Fish and wildlife habitat conservation areas" are areas that serve a

critical role in sustaining needed habitats and species for the

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No. 72235-2-1/21

functional integrity of the ecosystem, and which, if altered, may

reduce the likelihood that the species will persist over the long term.

These areas may include, but are not limited to, rare or vulnerable

ecological systems, communities, and habitat or habitat elements

including seasonal ranges, breeding habitat, winter range, and

movement corridors; and areas with high relative population density

or species richness. Counties and cities may also designate locally

important habitats and species.

WAC 365-190-030(6)(a) (emphasis added).

The Alliance faults the County in conclusory fashion for failing to "even

pay lip service" to the above definition. Br. of Alliance at 31. This argument is

difficult to understand. The "if altered" clause does not mean that all potential

critical habitat areas must be specifically evaluated and mapped out in advance

of development activity. Again, the Act does not require that a critical areas

ordinance take a parcel-by-parcel approach.

The Alliance has failed to show that the habitat ordinance violates the Act

in the way it designates critical areas.

Fourth Issue: Best available science & buffers

The Alliance's last argument is that the necessity for universal application

of the requirements for water quality buffers and tree protection zones is not

supported by best available science. Once more, the concern is with an alleged

lack of proportionality. The Alliance uses the example that a property owner

might have to devote a significant amount of land as a buffer merely to protect an

offshore kelp bed or a single isolated tree. According to the Alliance, the

County's synthesis of best available science does no more than establish

generally that marine habitats are important, rather than demonstrating the

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No. 72235-2-1/22

precise circumstances under which buffers are reasonably necessary to mitigate

particular impacts that may occur as the result of a specific project.

The Board rejected this argument. "The further argument that wetland

buffers have been imposed without regard to necessity is refuted by analysis of

the record and the methodology established by the ordinances." Board decision

at 27. We agree. The synthesis document shows that wetland buffers stop

pollution from disrupting the functions of wetlands. It also shows that buffers to

habitat conservation areas protect wildlife from the effects of pollution and runoff

from adjacent, developed areas. The ordinances provide step-by-step

instructions for determining whether buffers are necessary and ifso, how wide

they should be. Ordinance 28-2012 at 18-23; Ordinance 29-2012 at 16-17.

The Alliance's briefing on this issue consists of little more than conclusory

assertions. We conclude that the Alliance has failed to establish that the marine

buffers and tree protection zones are unsupported by the best available science.

FRIENDS APPEAL

Exclusion of small wetlands

Friends argues that the Board incorrectly upheld the County's decision to

exclude small, isolated wetlands from protective regulation. Friends frames this

argument, as itframes all its arguments, as both an erroneous interpretation or

application of law and a failure to rely on substantial evidence.

The wetlands ordinance exempts medium habitat importance-sensitivity

wetlands that are less than 1,000 square feet and low habitat importance22
No. 72235-2-1/23

sensitivity wetlands that are less than 2,500 square feet, unless the small

wetland is part of a wetland mosaic greater than 2,500 square feet.

The wetlands ordinance acknowledges that excluding small wetlands from

regulation potentially departs from the best available science. The County

explains that the minimum size threshold is necessary to "allow for reasonable

and cost effective application of the regulations." Ordinance 28-2012 at 9. The

County also explained that it used light detection and radar (LiDAR) and aerial

imaging to survey the county's wetlands. Using that technology, wetlands

smaller than 1,000 square feet could not be detected.

The Board noted that the County had incorporated restrictive language

suggested by the Department of Ecology and concluded that the County had

adequately limited the exemption for small wetlands. Board Decision at 72-73.

Friends argues on appeal that the Board's inquiry into this issue was not

sufficiently intense and that the decision departed from previous Board rulings

striking down similar provisions.

The superior court correctly distinguished the previous Board rulings on

the ground that, unlike in this case, exceptions had been adopted that departed

from the best available science without an adequate rationale under WAC 365-

195-915. Superior court decision at 27. The record does not bear out Friends'

allegation that the Board was lax in its enforcement. The County's synthesis of

best available science explicitly contemplates the exclusion of small wetlands

from regulation—one subsection is named "Establishing Minimum Wetland Size

for Regulation." Excluding small, isolated wetlands is, perhaps, not ideal. But as

23
No. 72235-2-1/24

both the Board and the superior court found, it is not necessarily a violation of the

Act.

View protection

Ordinance 29-2012 provides for development buffers on shorelines near

habitat conservation areas. Because the County deemed it important to protect

residential views in San Juan County, the ordinance permits these buffers to be

reduced where existing houses on adjacent waterfront parcels are closer to the

water than is permitted by the current code provision. Shoreline buffers may be

narrowed to accommodate views where (1) adverse impacts are identified by a

qualified professional, (2) adverse impacts are mitigated, and (3) the zone

remains the larger of (a) the waterward side of a line drawn between the most

waterward points of the houses on the adjoining parcels and (b) the average of

the distances from the ordinary high water mark to the most waterward points of

the houses on the adjoining parcels. Ordinance 29-2012 at 23-24.

The Board concluded that the view exception is sufficiently limited.

Friends argues that the Board failed to address the fact that the best available

science "reveals the low likelihood of replacing lost functions" through marine

mitigation attempts. But the Board did address this concern. The Board found

that mitigation of impacts is an accepted practice even though it is not always

effective. The Board approved the ordinances because of their primary focus on

avoidance of adverse impacts. We find no error.

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No. 72235-2-1/25

Tree protection zone averaging

Friends argues that the Board erred in upholding the County's decision to

permit "tree zone averaging."

A "tree protection zone" is a protective area established around a tree or

cluster of trees. Ordinance 26-2012 at 38. Ordinance 29-2012 permits

"averaging of tree protection zones" under certain circumstances.

Averaging of Tree Protection Zones. Averaging of Tree

Protection Zones allows reduction of the zone in specified locations

on the property proposed for development, vegetation removal or

other site modification, in conjunction with increases of the zone in

other areas, so that the total area of the zone is unchanged. The

applicant may average the Tree Protection Zone if all of the

following criteria are met:

a. Averaging is necessary to accomplish the purposes of the

proposal, and no reasonable alternative is available;

b. The total area contained within Tree Protection Zones

after averaging is no less than that contained within the

Zones prior to averaging;

c. Only areas with trees located within 200 feet of the

OHWM or bank full width will be counted toward the required

area of the Tree Protection Zones; and

d. In no case shall the Tree Protection Zones be reduced to

less than the water quality buffer or 70 feet, whichever is

greater.

Ordinance 29-2012 at 18.

Friends argued that the ordinance impermissibly uses tree zone averaging

as a means to reduce the protection of trees. The Board concluded that Friends

failed to carry its burden:

Buffer averaging is also subject to specific conditions. First

of all, even with averaging, the total area of the tree protection zone

may not be decreased. Secondly, the [tree protection zone] may

not be reduced through averaging to a width less than the water

quality buffer or 70 feet, whichever is greater. Finally, averaging is

allowed only to "accomplish the purposes of the proposal" and only

then when no reasonable alternative is available. Consequently,

25
No. 72235-2-1/26

the Board concludes buffer averaging may be appropriate with the

caveat that the minimum water quality buffer width needs to reflect

consideration of [the best available science].

Board decision at 64-65 (footnote and emphasis omitted).

On appeal, Friends argues that (1) the Board failed to determine whether

the impacts authorized by the averaging provision protect critical areas or include

the best available science, (2) permitting averaging is inconsistent with the

Board's own decision in Resources. Inc. v. City of Blaine. No. 09-2-0015, 2010

WL 3950500 (W. Wash. Growth Mgmt. Hr'gs Bd. Mar. 29, 2010) (Final Decision

and Order), and (3) averaging is inconsistent with the Department of Ecology's

recommendations. The County responds that Friends is not arguing that the

regulations chosen by the County fail to comply with the Act, "but rather that, in

Friends' opinion, the County could have done better. This is not the standard

and does not meet Friends' burden." Br. of County at 42.

The County is correct. We are not here to determine whether or not the

Board failed to determine the impacts of tree zone averaging. Our issue is

whether the Board erroneously concluded that Friends had failed to meet its

burden of proof. We find no error.

Devegetation in tree protection zones

Friends argues that the Board erred in upholding the County's decision to

permit devegetation in tree zones.

To allow for a view or fire hazard reduction, the habitat conservation

ordinance permits "minor trimming and pruning of the foliage of trees" in tree

zones provided that the health of the trees is maintained, trees are not topped,

26
No. 72235-2-1/27

and all branches and foliage overhanging aquatic fish and wildlife habitat

conservation areas is retained. Ordinance 29-2012 at 19. "In no case shall more

than 20% of the foliage of a tree be removed during one 12-month period."

Ordinance 29-2012 at 19. No tree removal is allowed within the first 35 feet.

Within the rest of the tree zone, construction of one primary structure or limited

tree removal to allow for a filtered view from the primary structure is allowed

where a number of very specific conditions are met. Ordinance 29-2012 at 19.

The Board concluded that Friends had failed to come forward with

scientific information showing that the devegetation provisions violate the Act.

Board decision at 79-80. The superior court agreed and noted that Friends was

relying on general data concerning the adverse impacts that can follow from the

removal oftrees or vegetation located in buffers, rather than specific studies that

suggest a different specific limit on removal ofvegetation. "As noted several

times above, regulations that limit, but do not absolutely prohibit, a use or activity

do not necessarily fail to comply" with the Growth Management Act requirement

to protect critical areas. Superiorcourt decision at 28-29. Friends' argument on

appeal has the same problem of lack ofspecificity as noted bythe trial court.

Friends essentially asserts that any removal of vegetation renders the buffer

inadequate. The record does not bear out this assertion. In fact, as the Board

recognized, the County relied on best available science suggesting that many

wetland animals benefit from minor pruning because it leads to more sunshine

and warmer temperatures.

27
No. 72235-2-1/28

Gardens & orchards in buffers

Friends argues that the Board erred in upholding the County's decision to

permit landowners to develop orchards and gardens in wetland and habitat

buffers. Orchards and gardens are permitted in buffers to low or medium habitat

importance-sensitivity wetlands and water quality buffers of aquatic habitat

conservation areas. This exception is subject to specific conditions of size,

location, protection of trees, a ban on structures or impervious surfaces other

than fences, and a variety of performance standards.

As a general matter, the best available science holds that agricultural

practices, like the use of synthetic chemicals, can disturb critical area functions.

Allowing orchards and gardens in buffers was a departure from the best available

science. The County explained that the exception responded to public testimony

"regarding the importance ofwetlands and surrounding areas for food production

in a community that is isolated from the mainland and has dry summers and

limited supplies of fresh water." Ordinance 28-2012 at 9. The ordinance states

that with the conditions imposed, "it is anticipated that the soils in gardens and

orchards will, in most cases, maintain high levels of organic material, and as a

result will remain permeable and able to absorb runoff from upland areas."

Ordinance 28-2012 at 9. The Board concluded that Friends had failed to meet its

burden to establish that these provisions permitting orchards and gardens

violated the Act.

28
No. 72235-2-1/29

Friends fails to show how the development of orchards and gardens in

critical area buffers violates the Act. The County adequately complied with WAC

365-195-915 by explaining its departure from the best available science.

Reasonable use exception

Friends last argues that the Board erred when it upheld the County's

reasonable use exception.

The reasonable use exception allows some development of a parcel

where strict adherence to the critical areas ordinances would deprive a

landowner of all economic and beneficial use of her property. Under this

exception, landowners may choose between two options for development: (1)

low impact development of up to 2,500 square feet of the parcel with no

mitigation or (2) the minimum area necessary to allow for the reasonable use of

the property if adverse impacts are mitigated. Ordinance 26-2012 at 43-44.

The Board concluded that Friends' arguments consist of "mere assertions"

that fail to establish violations of the Act because they are not related to specific

results. Board decision at 33. We agree. The Growth Management Act

explicitly states legislative intent that regulations not work a taking of private

property without just compensation. RCW 36.70A.020(6).

In summary, Friends fails to show that the Board erred, either legally or by

failing to rely on substantial evidence, in its rulings upholding the challenged

portions of the San Juan County critical areas ordinances.

The decision of the superior court is affirmed.

29
No. 72235-2-1/30

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WE CONCUR: <J

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30