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UNPUBLISHED OPINION FILED: August 10, 2015 fO S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 cr? —\c CJ-l --<"Z^: <2 Pi.-'. C= o rn

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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 ManagementAct, chapter 36.70A RCW, directs local 

### governments to designate "critical areas" and adopt development regulations to protectthem. 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 in2006. In 2012 the county enacted the four ordinances at issue in this appeal. A number ofpeople and entities, including the parties inthis appeal, filed 

### petitions for review ofthe ordinances withthe Western Washington Growth Management Hearings Board. Appellant Friends ofthe San Juans raised 52 issues for review bythe Board, generally contending thatthe ordinances did not go far enough to meetthe Act's requirementthat local governments protect critical areas. Appellants Common SenseAlliance and P.J. Taggares Company 

### (collectively"theAlliance") together raised 27 issues for review, generally 

### contending that the ordinances went too far to protect critical areas. The Board heard oralargumentfrom June 24 to 26, 2013, in Friday Harbor. The Board found in favor ofthe parties on some issues and affirmed on others. On October2, 2013, the Alliance filed a petition for review ofthe Board's 

### decision inSan Juan County SuperiorCourt, raising six issues. Friends filed its 

### petition the next day, raising seven issues. In a thorough memorandum, the superiorcourt upheld the Board's decision on each issue raised. The Alliance and Friends have both appealed from the decision ofthe 

### superior court. The twoappeals have been consolidated. Thefirstfourissues to be addressed were raised bythe Alliance. The remaining issues were raised by
Friends.No. 72235-2-1/3

ALLIANCE APPEAL FirstIssue: Nexus & proportionality The Alliance mounts a facial challenge to the critical areas ordinances 

### adopted bythe County. The Alliance argues thatthe ordinances are fatally flawed because they do not provide for site-specific considerations ofnexus, 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 & WildlifeHabitat Conservation Areas). The arguments inthis 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 ofthese 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, itstates that all development activities requiring aNo. 72235-2-1/4 permit "must have a final inspection to verify compliance with approved plans and the requirements ofthis 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 accountthe proposed land use intensity inaddition to the type ofwater 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 thatthe ordinances must be reworked to provide 

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

### impact that a proposed project isexpected to have on a critical habitat. There is no provision for the Departmentto modify or 

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

### thereof) ofthe projectundertaken, the needs ofthe criticalarea to 

### be protected, or the benefit the required buffer may provide to the habitat giving rise to the condition. The waterquality buffer is to be 

### imposed regardless ofwhetheror not(I) the proposed development increases, decreases, or makes no change to the waterquantity 

### discharged to the shoreline, or (2)the buffer is "reasonably necessary" to achieve "no net loss" ofhabitatfunction and value as provided by RCW 36.70A.480(4). 

### Ifthe proposed development on a property iswithin 200 feet from an area containing listed habitat, any tree on that property within 110feet ofthe shoreline is subjectto the tree protection 

### requirements, regardless ofwhetheror not (1)the tree on surrounding area is modified (2) the development increases, decreases, or has no effect on the functionality ofthe tree for environmental purposes, or (3) the tree inthat location is considered a benefitto the habitatto be protected. Once a listed habitat is identified within 200 feet, the ordinance as written eschews any notion ofproject related nexus 

### and proportionalityas a condition of implementation ofwater 

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

### local government, nor any discretion authorized forthe Department, to make some rational linkdemonstrating nexus proportionality or reasonable necessity underthe specific circumstances between the project and the condition to be imposed. The imposition ofwater quality and tree protection buffers on a developing property do pose significant limitations on the use and further development ofthe affected properties. Br. ofAlliance at 17-18 (citations and footnote omitted). Inan undeveloped section ofits briefentitled "other issues," the Alliance includes the wetland buffers inthe wetland ordinance inthis argument. The Alliance argues that due to the absence ofconsideration for nexus and proportionality, the ordinances violate both RCW 82.02.020 and the takings clause ofthe 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 itlacked authority to adjudicate issues otherthan compliance with the Growth ManagementAct. RCW36.70A.280(1). The superior court concluded thatthese 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 underthe 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 thatthe ordinances violate RCW 82.02.020. The meaning of RCW 82.02.020 is a question of law reviewed de novo. Isla Verde Int'lHoldings. Inc. v. City ofCamas. 146 Wn.2d 740, 757, 49 P.3d 867 (2002). Inthe late 1970s, several counties authorized the imposition offees on
new developmentto pay for, among otherthings, 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 thatthe 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/LAssocs.. 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 ofland. No county, city, town, or other municipal corporation shall impose any tax, fee, or charge, eitherdirect 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 ofland. 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 ofthe proposed development or platto 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. 124Wn.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 itlacks a procedure to determine if, in a particular development proposal, the buffers are "reasonably necessary as a direct result" ofthe 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 ofTigard. 512 U.S. 374, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994). The Alliance contends the habitat ordinance is likethe King County land

### clearing ordinance inSims. That ordinance was invalidated because it failed "to relate the clearing limit to the nature and extent ofthe proposed development on the lot." Sims. 145 Wn. App. at 668. Because the clearing limitswere not "impact specific," the ordinance did not satisfy the requirementfor proportionality. Sims, 145 Wn. App. at 668. The County persuasively distinguishes Sims. The ordinance at issue in Sims required all property owners inthe rural residential zone to limit landNo. 72235-2-1/8 

### clearing to a maximum of 50 percent, without any mechanism for relating the extent ofthe restriction to specific features ofthe 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 willdepend on a number offactors specific to a site proposed for development. The requirementfor 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 thatthe county "considered the best available science 

### substantively in its development ofthe criticalareas ordinance." Yakima County

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

### (2012). Acounty or citydeparting from science-based recommendations should: (i) Identify the information inthe record that supports its decision to departfrom science-based recommendations; (ii) Explain its rationale for departing from science-based recommendations; and 

### (iii) Identifypotential risks to the functions and values ofthe critical area or areas at issue and any additional measures chosen to limitsuch risks. State Environmental PolicyAct (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 ofscientists and natural

8No. 72235-2-1/9



### resource planners forthe San Juan County Planning Commission. It is a summary ofthe available scientific studies on each ofthe topics itaddresses, 

### including habitat conservation areas. It identifies "managementoptions the County might employ to betterprotectthese areas." Administrative Record (AR) at 3479. Atthe end of each chapter, the document lists the scientific literature 

### relied on to supportthe conclusions reached. After this documentwas 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 inthe 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 KingCounty's authority to enact and enforce a park fee ordinance. The ordinance made final approval ofsubdivisions contingent on reservation or dedication of land forthe open space and recreational needs ofthe subdivision's 

### residents, or paymentof a fee-in-lieu thereof. Adevelopment companyfiled an 

### action challenging the park fee ordinance under RCW82.02.020, seeking restitution ofthe fees ithad paid in lieu ofdedicating land. Relevant here is the 

### Supreme Court's rejection of the developer's argumentthat the county had failed to identify a direct impact or result of itsdevelopment requiring mitigation. The courtdetermined thatthe county's previous comprehensive assessmentof its 

### parkneeds, even though itwas not a site-specific study, showed that the park fees were reasonably necessary as a direct result ofTrimen's development: Although Trimen is correctthat King County did notconduct a sitespecific study, the record indicates thatthe ordinance's 

### requirement—to either dedicate land for open space or pay a fee in lieu ofdedication—was reasonably necessary as a direct result of 

### Trimen's development. SeeView Ridge ParkAssocs. 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 impactthat has been identified as a consequence of a proposed development), review denied. 121 Wn.2d 1016 (1993). 

### King County conducted a comprehensive assessment of 

### parkneeds in a 1985 reporttitled, InterimAssessmentofKing 

### CountyParkNeeds. The report indicated that there was a deficitof approximately 107 park acres in the Northshore area serving the

10No. 72235-2-1/11 

### Winchester Hills Iand II subdivisions. Based on adopted county standards, the report stated that over 300 acres ofadditional park land will be required in this area bythe year 2000 to provide forthe projected increase in population. Trimen's proposed subdivisions, with an expected occupancy average ofthree people pereach of 112 potential residential units, created a need for an additional 2.52 acres ofpark land. The dedication or reservation ofopen space 

### requirement of KCC 19.38, calculated at a reduced, negotiated figure of 5 percent, would have resulted in2.096 acres ofpark and open space land. We conclude therefore that the fees imposed in lieu ofdedication 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 inTrimen, the challenged ordinances impose limits on development near critical areas and require buffers based on a comprehensive study ofthe effect ofdevelopment near critical areas. The county's "best available science" documentwas prepared as the first step in updating the ordinances, and itdemonstrates that buffers are reasonably necessary to protect critical fish and wildlife habitat. We reject, as the Supreme Court did inTrimen, the argumentthat a comprehensive study cannot supportthe imposition of development regulations unless itlooks at a specific development proposed. Trimen. 124 Wn.2d at 274. We conclude the critical area ordinances do not violate RCW 82.02.020.

11No. 72235-2-1/12

2. Constitutional argument—Nollan and Dolan The Alliance, supported by the Pacific Legal Foundation as amicus, also argues thatthe buffers required by the habitat ordinance constitute unconstitutional conditions inviolation of Nollan and Dolan. Again, the argument is thatthe ordinance impermissibly imposes inflexible blanket rules, like requiring



### a waterquality buffer or protection of alltrees within 110 feet ofaquatic 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 

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

### according to the government becausethe developmentwould block the public's view ofthe 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'ewofthe beach) and the condition imposed 

### (grantingpublic, physicalaccessto 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 lotwas in the adjacentcreek's 

### 100-yearfloodplain and a study had shown flooding would be exacerbated by increased development, the cityconditioned her permit on the dedication of a 

### portion of her property for improvement of a storm drainage system. The Supreme Court found no problemwith this conditionbecause it had an obvious
nexus with the impact of the particulardevelopment. Becausethe cityfound that

12No. 72235-2-1/13



### newdevelopmentwould also worsen traffic congestion in the area, the city also required herto dedicate a strip of land as a public greenway for pedestrians and 

### bicyclists. The Supreme Court found this condition lacked proportionality. "It is difficultto see why recreational visitors trampling along petitioner's floodplain 

### easement are sufficientlyrelated to the city's legitimate interest in reducing flooding problems along Fanno Creek, and the cityhas not attempted to make any individualized determination to supportthis part of its request." Dolan. 512 U.S. at 393. Further, the court noted that while the traffic study concluded that a pedestrian lane couldalleviate some ofthe congestion caused by increased development inthe area, nowhere did anyone find that itwould. "No precise mathematical calculation is required, butthe city must make some effortto quantify its findings in support ofthe dedication for the pedestrian/bicycle pathway beyond the conclusory statementthat itcould offset some ofthe traffic demand generated." Dolan. 512 U.S. at 395-96. The Nollan/Dolan test is a special application ofthe unconstitutional conditions doctrine that protects the Fifth Amendment right to just compensation for property the governmenttakes when owners apply for land-use permits. Dolan. 512 U.S. at 385; Koontz v. St. Johns RiverWater Mgmt. Dist.. U.S. ,133 S. Ct. 2586, 2594, 186 L. Ed. 2d 697 (2013). Underthe unconstitutional conditions doctrine, the government may not deny a benefitto a person because he exercises a constitutional right. This principle "vindicates the Constitution's enumerated rights by preventing the governmentfrom coercing people into giving them up." Koontz. 133 S. Ct. at 2594.

13No. 72235-2-1/14 The Nollan/Dolan test reflects two realities ofthe land use permitting process. First, land use permit applicants are especially vulnerable to coercion 

### because the government often has broad authority to deny a permitthat is worth far more than the property it would take. And second, many proposed land uses 

### threaten to impose costs on the public thatdedications ofproperty 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 Alliancehas not cited a case where the constitutional Nollan/Dolan test has been applied to invalidate land use ordinances ofgeneral 

### application, as the Alliance seeks to do here. Indeed, itappears thatthe courts have confined Nollan/Dolan analysis to land use decisions thatcondition 

### 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 contextofexactions—land-use decisions conditioning approval ofdevelopment on the dedication of property to public use. City ofMonterey 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 presentthe same risk of 

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

14No. 72235-2-1/15 

### briefing here provides inadequate authority for an extension of the Nollan/Dolan testto a facial challenge of a critical areas ordinance. 

### Even assuming the Nollan/Dolantest can be applied to determine whether a land use ordinance constitutes a taking, the Alliance has not shown that a 

### taking occurred by the enactmentof the San Juan County criticalareas ordinances. Because the Nollan/Dolan test is a special application ofthe 

### unconstitutional conditions doctrine, every United States Supreme Court decision 

### applying it has asked first whether the governmentdemands 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. Ifthe exaction 

### does not constitute a taking, the condition is notunconstitutional and the inquiry
ends. 

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

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

### operation ofthe San JuanCounty ordinances. Theproperty ownercan use the bufferfor all authorized uses and can exclude others. Inthis respect, the buffers

are like setbacks inzoning regulations. 

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

### regulatorytakings undertheFifthAmendmentto theUnited States Constitution: (1) appropriation ofland through physical occupation, (2) thedeprivation ofall economicallyviable uses, and (3) those thatfail the three-part test of Penn Central Transportation Co. v. Citv of New York. 438 U.S. 104, 124, 98 S. Ct.

15No. 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 Alliancedoes not allege thatthe ordinances are any ofthese three types oftakings. 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 likethe 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 leftthe plaintiff's land "valueless." San Juan County included a "reasonable use exception" to ensure that some development could be allowed where strict application ofthe ordinances would deprive an owner of all economically viable use oftheir 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 testfocuses on the precise impacts ofparticular 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 ofbuffers to protect habitat and demonstrates a proportional relationship between the impacts of development

16No. 72235-2-1/17 and the measures adopted to mitigate it. The ordinances do not violate the unconstitutional conditions doctrine. SecondIssue: Designation ofcriticalareas The Alliance next argues thatthe habitat ordinance violates the Growth ManagementAct and its associated regulations and is not supported by substantial evidence. Comprehensive plans and development regulations passed to comply with the Growth ManagementAct are presumed valid upon adoption. RCW 

### 36.70A.320(1). Parties mayfile a petition for review ofsuch regulations withthe Growth Management Board. RCW 36.70A.290. 

### To prevail before the Board, the challengermust demonstrate thatthe challenged actions are not incompliance withthe Growth ManagementAct. RCW 36.70A.320(2). The Board is required to find compliance unless it determines thatthe challenged regulation is clearly erroneous in view ofthe 

### entire record before itand in light ofthe goals and requirements ofthe Act. RCW 36.70A.320(3). In reviewing planning decisions by local governments, the 

### legislature has instructed the Board to recognize the broad range ofdiscretion that may be exercised bycounties and cities and to grantdeference to them in howthey plan for growth. RCW 36.70A.320(1). The Board mustgivethe 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).

17No. 72235-2-1/18 

### Parties may file a petition for review ofthe Board's decision insuperior courtwithin 30 days ofthe final orderofthe Board. RCW 36.70A.300(5). Decisions ofthe Growth Management Hearings Board are reviewed underthe 

### 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). Underthe Administrative Procedure Act, the burden ofdemonstrating 

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

### interpreted or applied the law or (2)ifthe 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 evidencesufficientto persuade afairminded person of thetruth of a declared premise. King Countyv. Cent. Puget Sound Growth Mgmt. Hr'gs Bd.. 142 Wn.2d 543, 553, 14 P.3d 133 (2000). 

### TheAlliance argues that the County's system for designating critical areas violates RCW36.70A.480 because ituses performance standards to identifythe 

### 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 countiesto map andspecificallyidentify shoreline critical areas, finding there is no definition inthe statute for the term "specific areas," and 

### these Petitioners cite no legal authority to supportthe argument. 

### To the contrary, Department of Commerce regulationsspecifically 

### anticipatethe need to designate critical areas using "maps" and/or "performance standards,"with a preferencefor performance

18No. 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 withthe Board and find the Alliance's construction of the statute unpersuasive. RCW 36.70A.480(5) was passed bythe legislature to clarify its intentthat all shorelines are not per se critical areas. Laws of2003, ch. 321, §1. The statute states that shorelines are not critical areas exceptto the extentthat 

### they meetthe definition of criticalarea provided by RCW 36.70A.030(5). (5) Shorelines ofthe state shall not be considered critical areas underthis chapterexceptto the extentthat specific areas located within shorelines ofthe state qualify for critical area 

### designation based on the definition of criticalareas provided by RCW 36.70A.030(5) and have been designated as such by a local government pursuantto RCW 36.70A.060(2). RCW 36.70A.480. Becausethe County did not classify all shorelines as per se critical areas, it did notviolate RCW 36.70A.480(5). 

### As the Board recognized, WAC365-190-040(5) explicitly contemplates that counties will officially designate criticalareas at the time ofprocessing a 

### permit or a development authorization. WAC 365-190-040(5)(b). Counties designating critical areas firstengage in"classification"—defining categories to which natural resource lands and critical areas will be assigned. WAC 365-190- 

### 040(4). "Not allareas classified bystate 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 furtherlegislative action. Designatinginventoried lands for comprehensive planning and policy definition may be less precisethan

19No. 72235-2-1/20 

### subsequent regulation of specific parcels forconservation and protection." WAC 365-190-040(5)(c). The ordinances at issue here constitute a "formal adoption of a policystatement" 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 ofthe Board, where itrejected a similar, site-by-site assessment process. Br. ofAlliance at 28, citing TahomaAudubon Soc'v v. Pierce County. 

### No. 05-3-0004C, 2005 WL2227915 (Wash. Cent. Puget Sound Growth Mgmt. Hrgs. Bd. July 12, 2005) (Final Decision and Order). InTahomaAudubon, the Board did reject Pierce County's site-by-site assessment process to be performed during the permit application process. But as the superiorcourt correctly noted, the Board did not reject Pierce County's assessment process because itwas site-by-site. Rather, Pierce County's assessment process was rejected because ithad deleted all marine shorelines from its list of critical areas. Tahoma Audubon. 2005 WL 2227915, at *43. We conclude thatthe Alliance has failed to establish thatthe County's system for designating critical areas violates the Act. Mapping is not required. ThirdIssue: WAC 365-190-030(6) Inwhat appears to be a variation ofthe second issue, the Alliance argues thatthe 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

20No. 72235-2-1/21 functional integrity ofthe ecosystem, and which, ifaltered, 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 habitatelements 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 inconclusory fashion for failing to "even 

### pay lip service" to the above definition. Br. of Alliance at 31. This argument is difficult to understand. The "ifaltered" clause does not mean that all potential 

### critical habitat areas must be specifically evaluated and mapped out inadvance 

### ofdevelopment activity. Again, the Actdoes 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 

### inthe way itdesignates critical areas. Fourth Issue: Bestavailable science & buffers 

### The Alliance's last argument is thatthe necessityfor universal application 

### of the requirementsforwaterquality buffers and tree protection zones is not 

### supported by best available science. Once more, the concern iswith an alleged lack of proportionality. The Allianceuses the example that a property owner 

### might have to devote a significant amount of landas a buffer merely to protect an offshore kelp bed or a single isolated tree. According to the Alliance, the 

### County's synthesis ofbestavailable science does no more than establish 

### generally that marine habitats are important, rather than demonstrating the

21No. 72235-2-1/22 

### precise circumstances under which buffers are reasonably necessaryto mitigate particularimpacts that may occuras the result of a specific project. The Board rejected this argument. "The further argumentthatwetland 

### buffers have been imposed without regard to necessity is refuted byanalysis of the record and the methodology established by the ordinances." Board decision 

### at 27. We agree. The synthesis document shows thatwetland buffers stop pollution from disrupting the functions ofwetlands. Italso shows that buffers to habitat conservation areas protect wildlife from the effects ofpollution 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 ofsmall wetlands Friends argues thatthe 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 importance22No. 72235-2-1/23 sensitivity wetlands that are less than 2,500 square feet, unless the small wetland is part of a wetland mosaic greaterthan 2,500 square feet. The wetlands ordinance acknowledges that excluding small wetlands from 

### regulation potentially departs from the best available science. The County explains thatthe minimum size threshold is necessary to "allow for reasonable and costeffective application ofthe regulations." Ordinance 28-2012 at 9. The County also explained that itused lightdetection and radar (LiDAR) and aerial 

### imaging to survey the county's wetlands. Using thattechnology, wetlands smallerthan 1,000 square feet could not be detected. The Board noted thatthe County had incorporated restrictive language 

### suggested bythe Departmentof Ecology and concluded thatthe County had adequately limitedthe exemption for small wetlands. Board Decision at 72-73. Friends argues on appeal thatthe Board's inquiry into this issue was not sufficiently intense and thatthe 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 underWAC 365- 

### 195-915. Superiorcourt decision at 27. The record does not bearout Friends' 

### allegation thatthe Board was lax in itsenforcement. The County's synthesis of best available science explicitly contemplates the exclusion ofsmall wetlands 

### from regulation—one subsection is named "Establishing Minimum Wetland Size for Regulation." Excluding small, isolated wetlands is, perhaps, not ideal. Butas

23No. 72235-2-1/24 

### both the Board and the superiorcourt found, it is notnecessarily a violation of the
Act. View protection Ordinance 29-2012 provides for development buffers on shorelines near habitat conservation areas. Because the County deemed itimportantto protect residential views in San Juan County, the ordinance permits these buffers to be reduced where existing houses on adjacentwaterfront parcels are closerto the waterthan 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 ofthe houses on the adjoining parcels and (b) the average of the distances from the ordinary high water mark to the mostwaterward 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 thatthe Board failed to address the fact that the best available science "reveals the low likelihood ofreplacing lostfunctions" 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 oftheir primary focus on avoidance of adverse impacts. We find no error.

24No. 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 clusteroftrees. Ordinance 26-2012 at 38. Ordinance 29-2012 permits "averaging oftree protection zones" under certain circumstances. Averaging ofTree Protection Zones. Averaging ofTree Protection Zones allows reduction ofthe zone in specified locations on the property proposed for development, vegetation removal or other site modification, in conjunction with increases ofthe zone in other areas, so that the total area ofthe zone is unchanged. The applicant may average the Tree Protection Zone if all ofthe following criteria are met: a. Averaging is necessary to accomplish the purposes ofthe 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 priorto averaging; c. Only areas with trees located within 200 feet ofthe OHWM or bankfullwidth willbe counted toward the required area ofthe 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 oftrees. The Board concluded that Friends failed to carry its burden: Buffer averaging is also subjectto specific conditions. First of all, even with averaging, the total area ofthe 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 bufferor 70 feet, whichever is greater. Finally, averaging is allowed only to "accomplish the purposes ofthe proposal" and only then when no reasonable alternative is available. Consequently,

25No. 72235-2-1/26 

### the Board concludes buffer averaging may be appropriate withthe caveatthatthe minimum waterquality bufferwidth 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 inconsistentwiththe 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 inconsistentwith the Departmentof Ecology's recommendations. The County responds that Friends is not arguing thatthe regulations chosen by the Countyfail to comply with the Act, "but ratherthat, in Friends' opinion, the County could have done better. This is not the standard and does not meet Friends' burden." Br. ofCounty at42. The County is correct. We are not here to determine whether or not the Board failed to determine the impacts oftree zone averaging. Our issue is whetherthe Board erroneously concluded that Friends had failed to meet its burden of proof. We find no error. Devegetation in tree protection zones Friends argues thatthe Board erred in upholding the County's decision to permitdevegetation intree zones. To allow for a view orfire hazard reduction, the habitat conservation ordinance permits "minor trimming and pruning ofthe foliage oftrees" intree

zones provided thatthe health ofthe trees is maintained, trees are not topped,

26No. 72235-2-1/27 

### and allbranches and foliage overhanging aquaticfish and wildlife habitat conservation areas is retained. Ordinance 29-2012 at 19. "In no case shall more 

### than 20% ofthe 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 ofthe tree zone, construction ofone 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 superiorcourt agreed and noted that Friends was 

### relying on general data concerning the adverse impacts that canfollowfrom the removal oftrees or vegetation located in buffers, rather than specific studies that 

### suggest a differentspecific limitonremoval ofvegetation. "As noted several times above, regulations thatlimit, but do notabsolutely prohibit, a use oractivity do not necessarily fail tocomply" with the Growth ManagementAct requirement 

### to protectcritical areas. Superiorcourtdecision at28-29. Friends' argument on appeal has the same problem oflackofspecificity as noted bythetrial court. Friends essentiallyasserts that anyremoval of vegetation renders the buffer 

### inadequate. Therecord does not bear out this assertion. Infact, as the Board recognized, the County relied on best available science suggesting that many wetland animals benefit from minor pruning because itleads to more sunshine and warmer temperatures.

27No. 72235-2-1/28

Gardens & orchards in buffers 

### Friends argues thatthe Board erred in upholding the County's decision to permit landowners to develop orchards and gardens inwetland and habitat 

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

### importance-sensitivitywetlands and waterquality buffers ofaquatic habitat conservation areas. This exception is subjectto specific conditions ofsize, 

### location, protection oftrees, a ban on structures or impervious surfaces other than fences, and a variety ofperformance standards. 

### As a general matter, the bestavailable science holds that agricultural practices, like the use of synthetic chemicals, can disturb critical areafunctions. 

### Allowing orchards and gardens in buffers was a departurefrom the best available science. The County explained that the exception responded to public testimony 

### "regarding the importance ofwetlands and surrounding areas forfood production in a communitythat is isolatedfrom the mainland and has drysummers and limited supplies of fresh water." Ordinance 28-2012 at 9. The ordinance states that with the conditions imposed, "itis anticipated that the soils ingardens and orchards will, inmost cases, maintain high levels oforganic material, and as a 

### resultwill remainpermeable and able to absorb runofffrom upland areas." Ordinance 28-2012 at 9. The Board concluded that Friends had failed to meet its 

### burden to establish that these provisions permittingorchards and gardens violated the Act.

28No. 72235-2-1/29 

### Friends fails to show how the development oforchards 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 itupheld 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. Underthis exception, landowners may choose between two options for development: (1) low impact development of up to 2,500 square feet ofthe parcel with no 

### mitigation or (2) the minimum area necessary to allow forthe reasonable use of the property ifadverse impacts are mitigated. Ordinance 26-2012 at43-44. The Board concluded that Friends' arguments consist of "mere assertions" thatfail to establish violations ofthe Act because they are not related to specific results. Board decision at 33. We agree. The Growth ManagementAct 

### explicitlystates legislative intentthat regulations not work a taking of private propertywithoutjustcompensation. RCW 36.70A.020(6). Insummary, Friends fails to showthatthe Board erred, either legally or by failing to rely on substantial evidence, in its rulings upholding the challenged portions ofthe San Juan County critical areas ordinances. The decision ofthe superior court is affirmed.

29No. 72235-2-1/30



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