### FILED JUNE 

### 18,2015 In the Office ofthe ClerkofCourt W A State CourtofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE SPOKANE COUNTY, a political ) subdivision ofthe State ofWashington, ) ) Appellant, ) )



### . v. ) ) EASTERNWASHINGTON GROWTH ) MANAGEMENTHEARINGS BOARD, a ) statutory entity, NEIGHBORHOOD ) ALLIANCE OF SPOKANE COUNTY, ) FUTUREWISE, FIVEMILEPRAIRIE ) NEIGHBORHOOD ASSOCIATION, ) SOUTHGATENEIGHBORHOOD ) COUNCIL, THE GLENROSE ) ASSOCIATION, PAUL KROPP, LARRY ) KUNZ, DANHENDERSON, STATE OF ) WASHINGTON DEPARTMENTOF ) COMMERCE, andWASHINGTON ) STATEDEPARTMENT OF ) TRANSPORTATION, ) ) Respondents. ) No. 32240-8-111

PUBLISHED OPINION

LAWRENCE-BERREY, 

### J.

- TheWashington State GrowthManagementAct (GMA), chapter 36.70ARCW, requires counties toprovide for early andcontinuous publicparticipationbefore a county orcity votes onany changeto a comprehensiveplanNo. 32240-8-III Spokane County v. E. Wash. Growth Mgmt. Hearings Bd.

or development regulation. Here, Spokane County (County) adopted Resolution 13-0689, which expanded the County's urban growth area (UGA) boundary by 4,125 acres and, without notice to the public, increased thepopulation growth projection from 113,541 to 121,112 to fit the expanded boundary. TheNeighborhood Alliance ofSpokane County, Futurewise, the FiveMile Prairie NeighborhoodAssociation, the Southgate Neighborhood Council, the Glenrose Association, Paul Kropp, Larry Kunz, Dan Henderson, the State ofWashington Department ofCommerce, and the Washington State Department ofTransportation (collectivelythe Neighborhood Alliance) petitioned the Eastern Washington Growth Management Hearings Board (Board) for review ofthe resolution, alleging that the County failed to comply with the public participation requirements ofthe GMA in adopting the increased population growthprojection. The Board found that the County's adoption ofthe increased populationprojection represented a significant change in the comprehensiveplanthatrequired public review and comment. Itremanded the resolution to the County for compliance with the GMA's public participation requirements. It also invalidated the resolution, finding its continued validity would substantiallyinterfere with the fulfillment ofGMA goals.



### 2No. 32240-8-III Spokane County v. E. Wash. Growth Mgmt. Hearings Ed.

On direct appeal from the Board's order, the County argues that the Board erred by concluding that a change in thepopulation growth projection is a change to an amendment to a comprehensiveplan under RCW 36.70A.035(2)(a). The County also asserts thatthe Board's order is not supported by substantial evidence and is theproduct ofunlawful procedure. We concludethat the County's failure to notity the public ofits increased population projection violates the GMA'spublicparticipation requirement. We also hold that the continuing validity ofthe resolution substantially interferes with the goals ofthe GMA. Accordingly, we affirm. FACTS In 2009, Spokane County adopted a population growth projection as the basis for planning regarding potential changes to its UGA. The Board ofCommissioners for Spokane County adopted Resolution 09-0531, "IN THE MATTEROF ALLOCATION OF THE 20 YEARPOPULATION FORECAST FOR2011 to 2031," which further provides "the Boardhereby adopts for planningpurposes regarding the review and revision ifnecessary ofthe urban growth area boundary the populationprojection and allocations for the 20 year period ending in 2031 as described herein and set forth in Attachment'A.'" Administrative Record CAR) at 963, 965. AttachmentA adopted a 2008 to 2031 total population projection of612,226 for 2031, with a projection ofurban

3No. 32240-8-III Spokane County v. E. Wash. Growth Mgmt. Hearings Bd. population growth of 114,919 persons between 2008 and 2031. In the process ofplanning for the UGA expansion, the County prepared two environmental impact statements (EISs). In 2011, the Countyprepared a draft and final EIS examining four alternatives for UGA expansion. In 2012, the Countyprepared another draft and final EIS adding a fifth alternative to the analysis. Both ofthe EISs used a 2011 to 2031 UGA population growth projection of 113,541, consistent with the projection adopted in Resolution 09-0531. The number was a little lower than the 2008 to 2031 UGA population growthprojection, apparently to adjust for the 2011 to 2031 shorter time horizon. Usingthis population growth projection, all five alternatives showed apopulation capacity surplus, meaning that there was no needto expand the UGA. On July 18,2013, the Spokane County Board ofCounty Commissioners adopted Resolution 13-0689, which added 4,125 acres oflandto Spokane County's UGA and increased the UGApopulation growth projection from 113,541 to 121,112. The County's unilateral increase ofthe populationprojection appears to have been a retrofit driven by the desire to increase the UGA. During the Board hearing, the Board asked how the County could change the population forecast after the commentperiod had been completed. The county attorney, DavidHubert, responded:

4No. 32240-8-III Spokane County v. 

### E. Wash. Growth Mgmt. Hearings Bd. Well, I don'tthink thatthe change itselfis de minimis. I don'tthink that the difference in the numbers is de minimis or insignificant in any sense. The fact that the analysis was made based on the initial population projection, the County's answer is thatthatwas always-itwas always anticipated thatthose numbers would bethe starting point. We would do our analysis. We would look at what that means, whatthatpopulation projection would require in terms ofa size ofa UGA and capital facilities and so on and so forth as a starting point so that we would know that ifwe choose one ofthe alternatives, then there's going to be a difference and that we're going to then have to adjust the land quantity analysis. We're going to have to adjustthe capital facilities plan and everything to accommodate the final UGAboundary that's actually adopted. CP at 127-28. A Board memberthen asked ifthepopulationprojection was driven by "the desired size ofthe UGA as opposed to a [real] population projection," observing, "We're fitting the populationprojection into the desired UGA size; isn'tthat true?" CP at 128. Mr. Hubert answered: Well, we are fitting the population into the UGA boundary that's adopted

.... [I]n developed areas that aren'tyet in the UGA, those need to be considered for being put in the UGA, ifpossible, and so forth. And so I agree with youthat, yes, we're saying that the UGA boundary is going to tell us what popUlation projection we have to adopt, but it wasn't simply a desire kind ofa decision. It was a complex decision that was made, we believe, under the requirements ofthe GMA. CP at 128-29. During oral argument before this court, Mr. Hubert conceded that

. the County drew its desired urban growth area map and then increased the



### 5No. 32240-8-III Spokane County 

### v. 

### E. Wash. GrowthMgmt. Hearings Ed. population growth projection to 121,270 to fit the chosen area. l The Countypublished the last public notice inviting public comment on the proposed changes to the UGA on February 3, 2013. The notice stated that the County

was considering "PROPOSED REVISIONS TO THE SPOKANE COUNTY URBAN GROWTHAREA BOUNDARY INCLUDING CONCURRENT COMPREHENSIVE PLAN MAP AND ZONING MAP AMENDMENTS." AR at 1041. Itprovided in part: The proposal examines the adequacy ofthe County's Urban Growth Area and its ability to provide for future growth. The action includes amendment to the Spokane County Comprehensive Plan and Zoning Code maps should modification ofthe UGA be deemed necessary. Five alternative land use scenarios are considered within the proposal. A final decision on the UGA update may include any combination ofstudy areas from the different alternatives. AR at 1041. The notice indicated that the Spokane County Planning Commission and the Steering Committee ofElected Officials for Spokane County had made recommendations and that a topic ofdiscussion at the meeting may include environmental documents that

I Although the record does not reflect this, the parties agree and, therefore, we clarify the following point: The increased population growth projection of 121,112 was within the range ofpopulation growthprojected by the office offinancial management (OFM). Nevertheless, in its 2009 resolution, the County chose 114,919, a number also within the OFMrange, as its population growth projection. As explained earlier in this opinion, the 114,919 growth projection numberwas the basis for the 113,541 growth projection number used in the County's 2011 and 2012 EISs. 6No. 32240-8-III Spokane County v. E. Wash. Growth Mgmt. Hearings Bd.

had been prepared with the proposal. The notice also referred to the 2011 and 2012 EISs. However, neitherthe notice northe recommendations suggested that the County was considering any changes to the UGA population growth projection. The NeighborhoodAlliance parties filed two petitions for review alleging that the County had not complied with thepublicparticipation requirements ofthe GMA in adopting the expanded UGA. They also asserted that the resolution should be declared invalid because it substantially interfered with GMA goals. The State Department of Commerce and State Department ofTransportation filed a supportingresponse arguing that "population numbers are a necessary precursor to decisions on designations ofthe UGA" and that the County's unilateral adjustment ofthese numbers violated the GMA. AR at 1096. The Board granted the respondents' motion and remanded the resolution to the County to address the publicparticipation flaws regarding the population projection of 121,112. The Board specifically found (1) the continued validity ofthe new population projection of 121,112, which had not been subjectedto adequate public participation processes, would substantially interfere with the fulfillment ofGMA goals; (2) there was

a significant risk ofvesting; and (3) the resolution was invalid in its entirety and required public participation. Itconcluded: "[b]ased onthe importance ofthe public participation

7No. 32240-8-III Spokane County v. E. Wash. Growth Mgmt. Hearings Bd requirements ofthe GMA, [and] thebasic significance ofthe County['s] adopted population growth target, ...the Board determines [that] Resolution No. 13-0689 would substantially interfere with the fulfillment ofGMAPlanning Goals 1,2,3, 11, and 12." AR at 1321. The Boardmeticulously outlined its reasoning. Starting with thepropositionthat "[t]he [UGA] population projection is the key starting point for determining the amount ofland that is needed and appropriate for future growth, notvice versa,"the Board noted that "[t]he GMArequires the size ofaUGA must be 'basedupon' the OFM 20-year population growthprojection and a County's UGA designation cannot exceedthe amount ofland necessary to accommodate the urban growthprojected by OFM,plus a reasonable land market supply factor." ARat 1313 (citing RCW 36.70A.1IO). TheBoardnotedthat

as population projections change,jurisdictions are required to adopt corresponding changes in their capital facilities, such as sewer systems, road/vehicle capacity, and school facilities. These considerations, according to the Board, "leadto the inevitable conclusion that the first step in adopting changesto the size ofurban growth areas is the populationprojection." AR at 1315. TheBoard elaborated as follows: Inthematter now before the Board, rather than updating its projected population targets through a clear cutpublic updateprocess, as it initially 

### 8No. 32240-8-III Spokane County v. 

### E. Wash. Growth Mgmt. Hearings Bd.

had done, the County changed its population projection and allocations for its UGA at the conclusion, that is, within challenged Resolution No. 13­ 0689 itself. There is no evidence in the record the County considered a change in the population projection or allocations until after the comment and review period. In fact, there is noevidence in the record ofthe actually adopted population allocation of 121,112 at any date prior to the date of adoption ofResolution No. 13-0689. ARat 1315. The Boardrejected the County's argument that it was a logical inference that some ofthe five alternatives under consideration would require an increase in the projected population growth, finding that it was an equally valid inference that the alternatives that resulted in excess urban population capacity would lead the County to reject the expansion ofthe UGA. The Boardreasoned: [A]s previously addressed, the County's Notice ofHearing fails to reference the possibility ofa change in the populationprojection. Rather, that is left to possible inference. One could infer an upward adjustmentwouldbe required tojustity adoption ofone ofthe alternatives which would otherwise result in an excessivepopulation capacity. In essence, that is the position ofthe County. On the other hand, one could also infer that the extensive EIS analysis, including popUlation studies, would lead the decision makers to reject any expansion resulting in excess population capacity. For example, all ofthe four alternatives the County studied showed that they exceeded the County's 2009 populationprojection for 2031 by 4,259 to 17,803 people. Eventhe no-action alternative, without any change in the existing UGAboundaries, exceeded the County's population projection by 4,259 people. A logical conclusion from this mightbe that the previous UGA boundaries were adequate, without any enlargement, to accommodate the projected growth for the County's population. 9No. 32240-8-III Spokane County v. E. Wash. Growth Mgmt. Hearings Bd

The County's argument also ignores the fact that several years of consideration ofthe UGA update hadbeen based on the population projection of 113,541. While the County may be correct that all ofthe alternative study areas included different UGApopulation targets which were shown to the public, it was not disclosed to the public that a change would be made in the original populationprojection. The Notice of Hearing makes no mention whatsoever ofthepossibility ofa change in the populationprojection. AR at 1316-17 (footnotes omitted). The Boardthen addressed the County's argument that the County was exempt from the GMA'spublicparticipationrequirementbecause all ofthe proposals had been subject to extensive environmental impact studies. The Board concluded the exception did not apply because the population projection of 121,112 was not within the range of alternatives considered in the environmental impact statements. Based on its finding that the resolution violated the GMA, the Board invalidated the resolution in its entirety. In addition to finding that the increased population projection had not been subjectedto adequate public participationprocesses, the Board also found that the resolutionviolated other goals ofthe acts, including the reduction of urban sprawl andproviding for adequate planning for public services and facilities. The Board stated: The currently approved Resolution 13-0689 can also affect Goal 1, which encourages growth in urban areas, and Goal 2, reducing sprawl and the inappropriate development ofundeveloped land, because it allows for 

### 10No. 32240-8-III Spokane County 

### v. E. Wash. Growth Mgmt. Hearings Bd. vesting in the currently expanded urban growth areas before the Resolution can bereviewed and decided upon by the Growth Board. The Countyhas held pre-application conferences for subdivisions on 87.5 acres ofland in the urban growth area expansions and on the day the expansions were approved another application for a subdivision was filed for 33.5 acres. Even ifthe Petitioners prevail in their challenge to the County, it is likely thatthese and other applications for subdivisions will vest before this case is decided and remanded tothe County. The importance ofthe proper sizing ofurban areas is a key component ofreducing sprawl and limiting the inappropriate conversion ofundeveloped land. ARat 1320-21 (footnote omitted). This court granted the parties'jointpetition for discretionary review. ANALYSIS 

### I. AdministrativeProcedureAct (AP A) Review Standard Growth management hearings boards are chargedwith determining whether a comprehensiveplan or developmentregulation is compliantwith the GMA. RCW 36.70A.302. The Administrative ProcedureAct (APA), chapter 34.05 RCW, governs ourreview ofthe Board's order. PT Air Watchers v. Dep 't of Ecology, 179 Wn.2d 919,925,319 P.3d 23 (2014). Our Supreme Court has set forth the standard of review as follows: The Board is charged with adjudicating GMA compliance and invalidating noncompliantplans and development regulations. RCW 36.70A.280, .302. The Board "shall find compliance" unless it determines that a county action "is clearly erroneous in view ofthe entire record before the board and in light ofthe goals and requirements" ofthe 11

### No. 32240-8-III Spokane County v. E. Wash. Growth Mgmt. Hearings Bd.



### GMA. RCW 36.70A.320(3). To find an action "clearly erroneous," the Boardmust have a "firm and definite conviction that a mistake has been committed." The legislature intends for the Board "to grant deference to counties and cities in how they plan for growth, consistentwith the requirements and goals of'the GMA. RCW 36.70A.3201. Butwhile the Board must deferto the Lewis County's choices that are consistent with the GMA, the Board itselfis entitled to deference in determining what the GMA requires. This court gives "substantial weight" to the Board's interpretation ofthe GMA. Lewis County 

### v. W Wash. Growth Mgmt. Hearings Bd., 

### 157 Wn.2d 488,497-98, 139 P.3d 1096 (2006). While growth management hearings boards defer to local planning processes, such deference "is neither unlimited nor does it approximate a rubber stamp." Swinomish Indian Tribal Cmty. 

### v. W Wash. Growth Mgmt. Hearings Bd., 

### 161 Wn.2d 415, 435 n.8, 166 P.3d 1198 (2007). A county's discretion is limited by the 13 planning objectives and statutory constraints ofthe GMA. King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 

### 142 Wn.2d 543,561,14P.3d 133 (2000). One ofthese goals is to "encouragethe involvement ofcitizens in theplanningprocess and ensure coordination between communities andjurisdictionsto reconcile conflicts." RCW 36.70A.020(l1). Moreover, "when it comes to interpreting the GMA, the same deference to counties does not adhere, and we give substantial weightto a board's interpretation." Kittitas County

### v. E. Wash. Growth Mgmt. Hearings Bd., 

### 172 Wn.2d 144,156,256 PJd 1193 (2011).

12No. 32240-8-III Spokane County 

### v. E. Wash. Growth Mgmt. Hearings Ed.

Theparty challenging the hearings board decisionbears the burden ofproving it is invalid. RCW 34.05.570(1)(a). RCW 34.05.570(3) sets out nine grounds for invalidating

an administrative order. The County asserts three. First, 

### it argues that the Board erroneously interpreted or applied the law under RCW 34.05.570(3)(d). The County also argues that the Boardfailed to follow prescribedprocedure and thatthe order is not supported by substantial evidence under RCW 34.05.570(3)(c) and (e). "Ourreview is de novo under RCW 34.05.570(3)(b)through (d), determining whether the order contains a legal error." Spokane County v. E. Wash. Growth Mgmt. Hearings Ed., 176 Wn. App. 555, 565, 309 P.3d 673 (2013). The Board's interpretation ofthe GMA is notbinding on the courts. Thurston County 

### v. W. Wash. Growth Mgmt. Hearings Ed., 164 Wn.2d 329,341,189 P.3d 38 (2008). A challenge to the evidence is a mixed question oflaw and fact. City of Arlington

v. Cent. PugetSoundGrowth Mgmt. Hearings Ed., 164 Wn.2d 768, 779-80, 193 P.3d 1077 (2008) (quotingLewis County, 157 Wn.2d at 498). In reviewing that question, we determine the law independently and apply it to the facts found by the Board. Id. (quoting Lewis County, 157 Wn.2d at 498). We review challenged findings offact for substantial evidence: i.e., evidence sufficientto persuade a fair-minded person ofthe finding's truth

or correctness. City of Redmondv. Cent. PugetSound Growth Mgmt. Hearings Ed., 136

13No. 32240-8-II1 Spokane County v. 

### E. Wash. Growth Mgmt. Hearings Bd.

Wn.2d 38, 46,959 P.2d 1091 (1998) (quoting Callecodv. State Patrol, 84 Wn. App. 663, 673,929 P.2d 510 (1997)), "Weview the evidence in the light most favorable to the party who prevailed in the highest forum that exercised fact-finding authority." Miotke v. Spokane County, 181 Wn. App. 369, 376,325 PJd434 (2014). II. County GMA Compliance The County first assigns error to the Board's conclusion that the County violated the public participation requirements ofthe GMA in adopting an increasedpopulation growth prediction without notice to the pUblic. Specifically, the County asserts that the Board erred in concluding that the population growth projection of 121,112 constituted a significant change in the proposed amendment to the comprehensiveplan. Itargues, "[t]he fatal error in the Neighborhood Alliance's and in the Growth Management Hearings Board's logic is that the alleged change in the population growth projection, that Neighborhood Alliance complains of, is not a change to any ofthe 5 proposed alternative amendments to the UGA boundary." Appellant's Br. at 11. The County argues thatthe increasedpopulationprojection couldbe inferred from four ofthe five alternatives being considered by the County, all ofwhich were fully disclosed to the public, fully evaluated in environmental impact statements, and subject to extensivepublic participation.

14No. 32240-8-II1 Spokane County v. 

### E. Wash. Growth Mgmt. Hearings Bd. Neighborhood Alliance disputes the County's interpretation ofthe GMA, arguing that RCW 36.70A.035(2)(a) applies to any change to the amendment ofa comprehensive plan. Noting that the change in the projected population growth resulted in a significant expansion ofthe UGAby 4,125 acres, Neighborhood Alliance argues that the change "had a significant effect ofSpokane County's plan for the future and was done without any public involvement." Br. ofResp'ts at 18. It also disputes the County's argument that it was a logical inference that the alternatives being considered for the UGA boundary update would require an increase in the projected population growth, countering, "[r]atherthan assume that the County might increase the population projection, a reasonable person would believe that the County would reject the proposed expansion ofthe UGA or even reduce the size ofthe UGA to make the capacity consistent with population growth projections." Bf. ofResp'ts at 23. The issue before us is a question oflaw: whetherthe County's adoption of Resolution 13-0689, which unilaterally increased the OFM'spopulation growth prediction from 113,541 to 121,112, without notice to the public, constitutes a change to

an amendment ofacomprehensiveplan under RCW 36.70A.035(2)(a), thus requiring publicparticipation.

15No. 32240-8-II1 Spokane County 

### v. E. Wash. Growth Mgmt. Hearings Bd.

" 'Theprimary goal in statutory interpretation is to ascertain and give effect to the intent ofthe legislature." King County, 142 Wn.2d at 555 (quotingNat 'IElec. ContractorsAss'n v. Riveland, 138 Wn.2d 9,19,978 P.2d 481 (1999)). To discern the legislature's intent, we start with the plain language ofthe statute. Quadrant Corp. v. Cent. PugetSoundGrowth Mgmt. Hearings Bd, 154 Wn.2d 224,238-39, 110 P.3d 1132 (2005) (quotingKing County, 142 Wn.2d at 555). When theplain language is unambiguous, we construe theprovision as written. Bravo 

### v. Dolsen Cos., 125 Wn.2d 745,752,888 P.2d 147 (1995) (quotingKrystadv. Lau, 65 Wn.2d 827,844,400 P.2d 72 (1965)). We evaluatethe plain meaning ofa statutory provision from the ordinary meaning ofthe language in the statute, as well as from the context ofthe statute in which thatprovision is found, and the statutory scheme as a whole. Wash. Pub. PortsAss 'n v. Dep'tof Revenue, 148 Wn.2d 637,645,62 PJd462 (2003). We do not liberally construe statutory language in the GMA. Thurston County, 164 Wn.2d at 342 (quoting Woods 

### v. Kittitas County, 162 Wn.2d 597, 612 n.8, 174 PJd25 (2007)). A. Overview of the Growth ManagementAct The purpose ofthe GMA is to control urban sprawl by "[r]educ[ing] the inappropriate conversion ofundeveloped land into sprawling, low-density development" andto ensurethat "citizens, communities, local governments, and the private sector

16No. 32240-8-III Spokane County 

### v. E. Wash. Growth Mgmt. Hearings Bd. cooperate and coordinate with one another in comprehensive land use planning." RCW 36.70A.020(2); RCW 36.70A.OIO. "In a region like Washington State, where a rich tapestry ofdistinct rural and urban communities has long provided for a wide range ofdiverse lifestyles, maintaining the fundamental distinction between town and country is widely viewed as an essential function ofgrowth management law." Brent D. Lloyd, Accommodating Growth orEnablingSprawl? The Role of Population Growth Projections in Comprehensive Planning under the Washington State Growth ManagementAct, 36 GONZ. L.

### REv. 73, 76 (2001). The GMA requires that counties prepare a detailed comprehensive growth managementplan which, among other things, designates UGAs. RCW 36.70A.070. UGAs "areregions within which urban growth is encouraged and outside ofwhich growth can occur only ifitis not urban in nature." Miotke, 181 Wn. App. at 377. The comprehensive plan is the "coordinated land use policy statement ofthe governing body." RCW 36.70A.030(4). Each plan must include "population densities; building intensities, and estimates offuture population growth." RCW 36.70A.070(1). "A comprehensive plan shall be adopted and amended withpublicparticipation as provided in RCW 36.70A.l40." RCW 36.70A.070.

17No. 32240-8-II1 Spokane County 

### v. E. Wash. Growth Mgmt. Hearings Bd.

RCW 36.70A.140 provides: Each county and city that is required or chooses to plan under RCW 36.70A.040 shall establish and broadly disseminate to the public a public participationprogram identifYing procedures providing for early and continuous public participation in the development and amendment of comprehensive land use plans and development regulations implementing such plans. Theprocedures shall provide for broad dissemination of proposals and alternatives, opportunity for written comments, public meetings after effective notice, provision for open discussion, communication programs, information services, and consideration ofand responseto public comments. Comprehensiveplans must designate UGAs based onthe OFMpopulation growth predictions: (1) Each county that is required or chooses to plan under RCW 36.70A.040 shall designate an urban growth area or areas within which urban growth shall be encouraged and outside ofwhich growth can occur only ifit is not urban in nature. Each city that is located in such a county shall be included within an urban growth area. (2) Basedupon the growth managementpopulationprojection made for the county by the office of financial management, the county and each city within the county shall include areas and densities sufficient to permit the urban growththatis projected to occur in the county or city for the succeeding twenty-year period, except for those urban growth areas contained totally within a national historic reserve. As part ofthis planning process, each city within the county must include areas sufficient to accommodate thebroad range ofneeds and uses that will accompany the projectedurban growth including, as appropriate, medical, governmental, institutional, commercial, service, retail, and othernonresidential uses. RCW 36.70A.II0 (emphasis added).

18No. 32240-8-II1 Spokane County v. 

### E. Wash. Growth Mgmt. Hearings Ed. Thus, population growth predictions are the foundation ofeffective long-tenn comprehensive planning. Asjustdetailed, the legislature has entrusted the OFMto prepare countywide population growth projections and entrusted counties, in turn, to designate UGAs based on these projections. B. RCW36.70A.035: PublicParticipation under the GMA RCW 36.70A.035(2)(a) provides: Except as otherwiseprovided in (b) ofthis subsection, ifthe legislative body for a county or city chooses to consider a change to an amendment to a comprehensive plan or development regulation, and the change is proposed afterthe opportunity for review and commenthas passed under the county's or city's procedures, an opportunity for review and comment onthe proposed change shall be provided before the local legislative body votes on theproposed change. The County's interpretation ofthis requirement overlooks the central pointthat OFMprojections offuture population growth directly impact the designation ofa UGA because the size ofa UGA cannotbe calculated withoutknowing what population a county is planning to accommodate within the expanded UGA. RCW 36.70A.110(2); Thurston County, 164 Wn.2d at 351. Thus, OFM populationprojections "cap

...the amount ofland a county may allocate to UGAs." Diehl

### v. Mason County, 94 Wn. App. 645,654,972 P.2d 543 (1999). One commentatorhas noted, "[p]opulation growth is a fundamental consideration in making long-range land use planning decisions

.... 19No. 32240-8-III Spokane County v. 

### E. Wash. Growth Mgmt. Hearings Bd. Indeed, all key planning decisions-includingthose involving public facilities and services, residential and commercial zoning, road and highway design, and landfill placement, to name only a few-are contingent on the number ofpeople that must be accommodated during the planning cycle." Lloyd, supra, at 77. In Diehl, Division Two ofthis court held that the GMA requires that counties use OFM population projections in determining UGAs. Diehl, 94 Wn. App. at 653-54. In that case, Mason County challenged the Western Washington Growth Management Hearings Board's decision that Mason County had violated the GMA by failing to use OFM populationprojections in designating UGAs. Id. Mason County defended its position by arguing that its use ofindependently-generated populationprojections was justifiedbecause the OFMprojection was too low. Id. at 653. The court held that RCW 36.70A.II0(2) precludes counties from using their own projections in lieu ofthe OFM's, reasoning, "[i]fa county could enlarge UGAs to accommodate any popUlation maximum it chose, thenthe result would likely be the urban sprawl the GMA is trying to avoid." Id. Given the foundational role ofthe OFM'spopulationprojection in determining the size ofa UGA, the County's unilateral adoption ofan increased populationprojection, which was used tojustify a significant expansion ofthe UGA, constituted a significant

20No. 32240-8-III Spokane County v. 

### E. Wash. Growth Mgmt. Hearings Bd. change, mandating public review and comment as provided in RCW 36.70A.035(2)(a). While it is arguable, as the County contends, that an upward population adjustment could be inferred tojustify adoption ofone ofthe alternatives that would otherwise result in an excessivepopulation capacity, it is an equally logical inference that the County would reject expansion that would result in such excess population capacity. In fact, Spokane County's land quantity analysis showed that the existing UGA had more land than needed to accommodate the UGApopulation growthprojection of 113,541. This analysis documented: The County's populationprojection expects the addition of 113,541 people in the County's UGA between the years 2010 and 2031. The current UGA has the capacity to include 117,800 additional people. This result shows thatthe increase in population can be accommodated within the current UGA and thatthere is an additional excess ofcapacity equaling 4,259 people. ARat437. The resolution does not retlect why the Countyprovided nonotice that upward population adjustment was being considered. The resolution's finding offact 21 states that the Board had previously adopted a resolution adopting a total population project of 612,226, which corresponds with the prior adopted population projection ofan increase of 113,541 people. Moreover, the OFMpredicted slowerpopulation increases for Spokane County in its 2012 update. While the resolution attempts to characterize the 21No. 32240-8-III Spokane County v. 

### E. Wash. Growth Mgmt. Hearings Bd. 113,541 figure as "preliminary," there is no evidence in the record that the County had considered a change in the populationprojectionuntil after it expandedthe UGA boundary andthe period for comment and review had passed. By increasing the population forecast to fit the UGAboundary expansion desired by the County, the County effectively turned GMAplanningprocedures on their head, and deprived thepublic ofits opportunity for review and comment. Nevertheless, the County contends that the challenged notice ofhearing complies with the "spirit" ofthe public participation guidelines under RCW 36.70A.140, which allows for some deviance from "exactcompliance" with GMA procedures "ifthe spirit of the program and procedures is observed." To support its position, the County contends thatthe notice informedthepublicthatthe purpose ofthe hearing was to consider testimony related to the update ofthe County's UGA, directed the public to the related environmental documents, and identified the five alternativeproposals. The County argues, "[i]t is difficult to imaginethat after a process spanning 7 years ofdeveloping and publishing the 5 alternative proposed amendments to the UGA boundary that anyone did not have ample opportunity to reviewthe proposed amendments and comment onthem at

some forum orbefore the Board ofCounty Commissioners." Br. ofAppellant at 16. The County also argues that because an environmental impact statement regarding all five

22No. 32240-8-II1 Spokane County 

### v. E. Wash. Growth Mgmt. Hearings Bd. proposals had been prepared, the change in the resolution was exempt from the public review requirementunder RCW 36.70A.035(2)(b). RCW 36.70A.035(2)(b)(i) provides that an additionalperiod for public review and comment is not required under the GMA if"[a]n environmental impact statement has been prepared under chapter43.21C RCW for the pendingresolution or ordinance and the proposed change is within the range ofalternatives considered in the environmental statement." The County's argument overlooks the fact that the environmental impact statements did not include arange ofpopulation projections--only one was used: 1l3,541. Neither the EIS nor any other document in the record gave any indication that the County intended to change its populationprojection and allocations. In its reply brief, the County argues thatbecause the upward populationprojection could be inferred from the environmental impact statements, 

### itdid not need to include the 121,112 projection in the notice. It argues, "all five (5) ofthe alternatives from which the UGA boundary adopted by Spokane County was taken are clearly found within the [environmental impact statement] along with a clear indication ofthe projected population growth that would be accommodatedwithin the boundary area." Reply Br. of Appellant at 10. CitingBrinnon Group v. Jefferson County, 159 Wn. App. 446, 245 P.3d 789 (2011), the County argues that the notice ofhearing adequately informed the public

23No. 32240-8-III Spokane County v. E. Wash. Growth Mgmt. Hearings Bd.

ofthe proposed change and that the exactpopulation projection was not a necessary component ofsuch notice. Brinnon does not help the County. In that case, Jefferson County enacted an ordinance that amended its comprehensiveplan to permitthe development ofa 256 acre masterplannedresort (MPR) near Brinnon, Washington. Id. at 454,461. Brinnon Group challengedthe ordinance for failure to comply with the publicparticipation requirements ofthe GMA. The Western Washington Growth Management Hearings Board concluded the ordinance had complied with the GMA. Brinnon Group appealed, arguing that the ordinance included significant changes from the commission's recommendation and therefore the public should have been given the opportunity to comment on the changes. Id. at 466. The group specifically argued that the Board ofCounty Commissioners violated thepublic participation requirement when it added a MPRboundary map that made "'substantial changes" to the commission's recommended map. Id. at 472. Division Two ofthis courtrejected Brinnon Group's argument: Although Brinnon Group exhaustively details the minor differences between these maps, these differences do not support Brinnon's Group's contention that thepublic lacked effective notice ofthe overall MPR proposal. As we detailed above, the [Board ofCounty Commissioner's (BOCC's)] adopted boundary map is consistent with the maps that the public viewed in the draft EIS. Thus, the public had effective notice ofthe proposal that the BOCC adopted. Moreover, even assuming that the ordinance "'changed" the proposed amendment, the County was 24No. 32240-8-III Spokane County v. E. Wash. Growth Mgmt. Hearings Bd.

notrequired to provide an additional commentperiodunder RCW 36.70A.035(2)(b)(i) since the information in the draft EIS clearly reflected the BOCC's changes. Id. at476. In contrastto Brinnon, the public here was not given accurate information in the environmental impact statements. Both the 2011 and 2012 EISs relied on the OFM's population growth estimate of 113,541 persons, not 121,112. This is not the sort of "minor"difference contemplated in Brinnon. Id. The County's adoption ofthe 121,112 figure providedthejustification for expanding the UGA by 4,125 acres. By failing to inform the public ofthis increased population projection, the County's notice cannot be deemed to have complied with the "spirit" ofthe GMA. Citizen participation is a core goal ofthe GMA. RCW 36.70A.020(11). Spokane County's own public participation guidelines provide that "Spokane County must take steps to involve the public in a meaningful manner." CP at 1016. Here, given that the County's planning process revealed that the existing UGA contained an urban population surplus in excess ofprojected growth, it would nothave been unreasonable for aperson to believe that the County wouldrejecttheproposed expansion or even reduce the size of the UGA. Such action would be consistentwith our Supreme Court's directive that "a county's UGA designation cannot exceed the amount oflandnecessary to accommodate

25No. 32240-8-II1 Spokane County 

### v. E. Wash. Growth Mgmt. Hearings Bd.

the urban growth projected by OFM." Thurston County, 164 Wn.2d at 352. Here, not only has thepublic been excluded from a component ofthe decision making process, it has been excluded from the componentthat is the key to thejustification ofthe entire proposal to expand the UGA. Thus, the Board correctly concluded that the County's adoption ofthe increased population projection in Resolution 13-0689 violated the GMA'spublicparticipationrequirement. III. Invalidation of Resolution 13-0689 The final question before us is whether the Board's decision to invalidate the resolution exceeded its authority. The County argues that the Board's authority regarding the dispositive motion onpublicparticipation was limited to determining whether the County complied with the notice and public participation goals ofthe GMA. Itcontends that "[n]othing in the GMA supports an argument that after a finding ofnoncompliance

on any basis, the Growth Management Hearings Board is then free to consider any other basis for a determination ofinvalidity." Br. ofAppellant at 22. Itargues that none ofthe goals cited by the Board as a basis for its determination ofinvaliditypertain to public participation and therefore they cannot constitute a basis for invalidating the resolution. Finally, the County also asserts that the Board lackedjurisdictionto considerthe possibility ofvesting as a basis for invalidation ofthe ordinance.

26No. 32240-8-111 

### Spokane County v. 

### E. Wash Growth Mgmt. Hearings Bd.

RCW 36.70A.280 authorizes growth managementhearings boards to hear challenges to whether state agencies or local governments are in compliance with the GMA. Ifthe Board finds that a plan orregulation is not in compliance, it may enter a finding ofnoncompliance or a finding ofinvalidity. 

### Town o/Woodwayv. 

### Snohomish County, 180 Wn.2d 165, 175-76,322 P.3d 1219 (2014). Ifthe Board finds only noncompliance, the GMA directs the Boardto remand the matter for compliance. RCW 36.70A.300(3)(b). The GMA also provides that "[u]nless the board makes a finding ofinvalidity underRCW 36.70A.302, a finding ofnoncompliance and an order of remand shall not affect the validity ofcomprehensive plans and developmentregulations during the period ofremand." RCW 36.70A.300(4)(a). The County's argument fails to recognize that invalidity is a remedy to address a finding ofnoncompliance. Any time the Board finds noncompliance, it may then proceed to determine whether a motion for a determination for invalidity should be granted under RCW 36.70A.302(1). RCW 36.70A.302(1)(b)provides that ifthe Board also determines that the "continuedvalidity ofpart orparts ofthe plan or regulation would substantially interfere with the fulfillment ofthe goals ofthis chapter," the Board may invalidate the offending parts ofthe plan orregulation. "Upon a finding ofinvalidity, the underlying provision would be rendered void." 

### King County v. 

### Cent. PugetSound Growth Mgmt.

27No. 32240-8-III Spokane County 

### v. 

### E. Wash. Growth Mgmt. Hearings Bd. Hearings Bd., 138 Wn.2d 161, 181,979P.2d 374 (1999). The legislature has authorized the Boardto adopt procedural rules for "expeditious and summary disposition ofappeals." RCW 36.70A.270(7). Under that authority the Board adopted WAC 242-03-560, allowing challenges to the "compliance with the notice and public participation requirements ofthe act." Contrary to the County's contentions, the Board followed properprocedure and did not base the determination ofinvalidity on findings ofnoncompliance beyond the scope ofissues raised in the respondents' motion. Neighborhood Alliance asked for a determination ofinvalidity because the ongoing validity ofthe resolution would substantially interfere with certain GMAplanning goals. In line with RCW 36.70A.302, the Board considered whether continued validity ofthe resolution would substantially interfere with the goals ofthe GMA. We rejectthe County's assertion that none ofthe GMA's goals relate to public participation. Instead, we agree with the Board that failure to allow publicparticipation

on decisions about future population size will adversely impact "awhole host ofplanning functions, including planning for increased housing, commercial facilities, transportation, potable water, wastewatertreatment, and otherpublic infrastructure to serve the significantly increased population." ARat 1318. Noncompliant expansion ofaUGA undercuts the central goal ofthe GMA of

28No. 32240-8-III Spokane County 

### v. 

### E. Wash. Growth Mgmt. Hearings Bd. encouraging urban growth in areas with adequate public services and the goal ofreducing urban sprawl. RCW 36.70A.020(1), (2). Here, in view ofa UGA expansion of4,125 acres, the Board correctly emphasized that "[t]he importance ofthe proper sizing ofurban

areas is a key component ofreducing sprawl and limiting the inappropriate conversion of undeveloped land." ARat 1320-21. This is consistent with Thurston County, where our Supreme Court noted, '" [0]versized UGAs are perhaps the most egregious affront to the fundamental GMApolicy against urban sprawl, and it is this policy that the UGA requirements, more than any other substantive GMA mandate, are intended to further.'" Thurston County, 164 Wn.2d at 351 n.3 (quoting Lloyd, supra, at 105). Finally, contrary to the County's position, the Boardproperly considered the potential ofvesting ofdevelopment in invalidating the resolution. Neighborhood Alliance argues, "[vJesting ofdevelopmentpermits in an improperly expanded UGA substantially interferes with the goals ofthe GMA to direct urban growth to urban areas and to reduce sprawl, so [it] is properly within the scope ofthe issues that the Board may considerwhen deciding whetherto make a determination ofinvalidity." Br. ofResp'ts at 38. Ifa resolution were found noncompliant but allowed to remain valid, development proposals could vestwithin the expanded UGA while the resolution wallows on remand. The Miotke court addressed this problem, holding that a County cannotuse the vested


### 29No. 32240-8-III Spokane County v. E. Wash. GrowthMgmt. Hearings Ed. rights doctrine to shield itselffrom its failures in the planningprocess: The vested rights doctrine and the provisions ofthe GMA are often intertwined, but nothing in our vested rights cases or in the language ofthe corresponding statutes indicates that the vesting ofdevelopers' rights somehow relieves a [c]ounty from its obligation to comply with planning goals underthe GMA. Miotke, 181 Wn. App. at 379. Here, the record shows that projectproponents attempted to vest in the expanded UGA before the Board issued its order. Ifthe Board was to only find that the expansion ofthe UGA was noncompliant, that remedy would be futile ifthe County could allow developmentwithin the noncompliant UGA and then later argue that these areas mustbe included in future UGA expansions because they have been urbanized. We concludethat the Board followed properprocedures in invalidating the resolution. Affirmed. Lawrence-Berrey WE CONCUR:

Fearing, J. \

30