Opinion
No. 26615-0-III.
February 5, 2009.
Appeal from a judgment of the Superior Court for Douglas County, No. 07-2-00096-5, John Hotchkiss, J., entered November 5, 2007.
Reversed by unpublished opinion per Schultheis, C.J., concurred in by Brown and Korsmo, JJ.
The East Wenatchee Water District petitioned the Washington State Boundary Review Board for Douglas County for permission to annex more than 4,000 acres of property bordering its current boundary of service. The Board approved the request. The city of East Wenatchee (City) appealed, unsuccessfully, to the superior court. On appeal to this court, the City argues that the annexation is inconsistent with both the Growth Management Act, chapter 36.70A RCW, and the State Environmental Protection Act (SEPA), chapter 43.21C RCW. We agree and reverse.
FACTS
On March 28, 2006, Douglas County adopted the Greater East Wenatchee Area Comprehensive Plan, which included the City. An urban growth area was adopted in the plan. The goals of the comprehensive plan were adopted in large measure to reduce urban sprawl and leapfrogging development, and to protect agricultural and mineral resource lands.
The East Wenatchee Water District is a "Group A" community water system as defined in WAC 246-290-020 and authorized by chapter 57.04 RCW. On March 15, 2006, the District's board of commissioners approved the District's 2005 Comprehensive Water System Plan to comply with the planning requirements of WAC 246-290-100 . Douglas County approved the plan on December 20, 2005 and the City approved the plan on May 9, 2006. After revisions to the plan made in May 2006, the Department of Health approved the plan on June 7, 2006.
WAC 246-290-100(10) requires water system purveyors to prepare and adopt a comprehensive water system plan every six years and obtain the department's approval of the plan.
A manager of the District wrote to the City on June 14, 2006 to inform the City of the District's future expansion plans. That letter informed the City that "[t]he future service area has been expanded in response to three proposed annexation requests that the District has received." Clerk's Papers (CP) at 230.
Those annexation requests were consolidated in a petition for annexation filed with the District by CDL Development, L.L.C., and other developers and landowners. See RCW 57.24.070 (providing for a written petition for annexation signed by owners of not less than 60 percent of the area of land for which the annexation is petitioned). The petition sought the annexation of 4,057 acres of property bordering the District's current boundary of service. The proposed annexation territory includes 282 acres that are zoned rural resource lands and 2,919 acres that are zoned dry land agriculture as well as some commercial agricultural acreage. It is undisputed that all of the proposed annexed territory lies outside of the urban growth area. The annexation proponents also submitted a completed SEPA checklist for a nonproject proposal.
The petition for annexation is for 4,057 acres. The Board's findings of fact and conclusions of law reflect 4,470 total acres. It is unclear from the record whether the annexation area was expanded or the findings and conclusions are in error.
On September 6, 2006, the District commissioners enacted a resolution, finding the annexation petition to be proper, directing that a notice of hearing on the petition be filed, and making a threshold determination of nonsignificance (DNS) under SEPA. The District conducted a public hearing on the petition on September 27, at the District office in East Wenatchee. After hearing testimony from the public, the District approved a notice of intention to annex, which authorized the District to deliver the petition to the Board for review.
The Board held a public hearing on February 1, 2007. The City, the District, and one of the developers submitted briefing to the Board. After hearing comment from numerous parties and argument of counsel, the Board entered findings of fact and conclusions of law on March 12.
The Board found and concluded that the proposed annexation was consistent with the District's comprehensive plan and consistent with the Growth Management Act. It also found and concluded that SEPA requirements had been met, the SEPA checklist was complete, and the DNS was complete and adequate for the purposes of the annexation on a nonproject proposal.
The Board found that the objectives it must consider in RCW 36.93.180 were more advanced than harmed by the annexation. Finally, the Board found and concluded that the annexation is in the best interests of the public health, safety, and welfare of the citizens served by the District and the annexation area and approved the annexation.
The City appealed the Board's decision to superior court. The court initially ruled in favor of the City. On reconsideration, however, the superior court reversed its earlier decision and entered a judgment affirming the Board's decision. This timely appeal follows.
ANALYSIS
Judicial review by the superior court is limited to the evidence that was before the Board in rendering its decision. RCW 36.93.160(5). Upon appeal of a superior court decision reviewing a boundary review board decision, this court applies the standards contained in RCW 36.93.160(6) directly to the record before the Board rather than to the decision of the superior court. Like the superior court, this court may (1) affirm the decision of the board, (2) remand the case for further proceedings, or (3) reverse the decision if any substantial rights may have been prejudiced because the Board's findings, inferences, conclusions, or decisions are:
(a) In violation of constitutional provisions, or
(b) In excess of the statutory authority or jurisdiction of the board, or
(c) Made upon unlawful procedure, or
(d) Affected by other error of law, or
(e) Unsupported by material and substantial evidence in view of the entire record as submitted, or
(f) Clearly erroneous.
Under RCW 36.93.157, a boundary review board in a county that has a comprehensive plan like the one in this case must be consistent with the Growth Management Act and any applicable city and county planning goals and comprehensive plans. See RCW 36.70A.020, .110, .210. Here, the Board found and concluded that the proposed annexation area is consistent with the Growth Management Act as required by RCW 36.93.157. The Board also found that the lands designated by the City and Douglas County as agricultural were of "marginal productivity and minimal long-term agricultural use." CP at 3 (Finding of Fact 2.3). The City challenged these determinations, asserting that they were affected by legal error and/or unsupported by material and substantial evidence in the record. We agree.
The Growth Management Act directs that the City and Douglas County designate agricultural lands, which they did. RCW 36.70A.030(2). The Board has the statutory obligation to protect agricultural land so designated in a comprehensive plan. RCW 36.93.180(9); RCW 36.70A.110. It is not authorized to make land use decisions. Stewart v. Wash. State Boundary Review Bd., 100 Wn. App. 165, 169-70, 996 P.2d 1087 (2000); Spokane County Fire Prot. Dist. No. 9 v. Spokane County Boundary Review Bd., 97 Wn.2d 922, 924, 652 P.2d 1356 (1982). The Board therefore lacked the authority to ignore the land use classification or create a subordinate classification for the agricultural-designated land as it did in finding that the land had "marginal productivity and minimal long-term agricultural use." CP at 3 (Finding of Fact 2.3). Further, the finding is not supported by substantial evidence. One landowner testified that he would make more money by developing his land rather than planting wheat as he had in the past. This testimony does not lead to a reasonable finding that agriculture is not supportable; it merely identifies the landowner's preference.
The Growth Management Act further establishes it is not appropriate to extend or expand urban governmental services into rural areas. RCW 36.70A.110(4). A limited exception to the rule is permitted when it is "shown to be necessary to protect basic public health and safety and the environment and when such services are financially supportable at rural densities and do not permit urban development." Id. When this showing is made, "rural government services" "may include domestic water systems." RCW 36.70A.030(17). Otherwise, "urban government services" "specifically includ[e] . . . domestic water systems." RCW 36.70A.030(20).
The District argues that the expansion of the water system provides a rural government service. As the City points out, the Board did not consider the annexation for rural domestic water purposes or find that to be the purpose. Nor does the record support the District's claim that such rural services were intended to be provided. Instead, the annexation was clearly proposed to support the development of the rural area.
Further, the Board's findings would not support a conclusion that the limited exception applies. The Board found generally that the annexation is "in the best interests of the public health, safety and welfare of the citizens served by the District and of the citizens in the annexation areas seeking to be served by the District." CP at 6 (Finding of Fact 2.10). It also found
the annexation, as proposed, will not alter the zoning or density of the annexation area and that this objective, to the extent it is applicable, is met. The [Board] further finds that there is a benefit to the public health and safety for the District to establish itself as a provider of water services to the annexation areas as proposed.
CP at 5 (Finding of Fact 2.5(i)).
The Board did not address these findings in the context of RCW 36.70A.110(4). Even if it did, the record would not support a finding of necessity for the protection of the environment or public health and safety, that the water system would be supportable at rural densities, or that it would not permit urban development. RCW 36.70A.110(4).
As previously noted, the Board's decision must be consistent with city and county planning goals. RCW 36.93.157; RCW 36.70A.020. The City and Douglas County's comprehensive plan is expressly geared toward ensuring that growth outside the urban growth area is nonurban in nature; reducing conversion of undeveloped land into sprawling, low-density development; concentrating urban density and land uses within urban growth area; defining and developing resource lands necessary to support and sustain the long-term commercial production of cultural and mineral products; protecting agricultural lands and activities from conflicting nonfarm uses and influences; and supporting agricultural use in the event of a conflict between residential uses and agricultural uses. The decision is in direct conflict with these planning goals and an error of law.
Next, the City contends that the annexation improperly bypassed the SEPA process and should have required an environmental impact statement. The District asserts that, because the SEPA issue was not considered by the Board, the City may not raise it on appeal.
The record shows that the issue was raised by an opponent of the project, through a letter written by counsel. The Board indicated in its decision that it considered the letter. The City objected to the proposed finding and conclusion that the SEPA requirements had been met. Because the Board considered the issue, it is properly raised on appeal. E.g., King County v. Wash. State Boundary Review Bd., 122 Wn.2d 648, 672, 860 P.2d 1024 (1993).
The City challenges the Board's finding and conclusion that SEPA requirements were met and a DNS was complete and adequate. We conclude that the finding and conclusion is unsupported by the record, affected by error of law, and clearly erroneous.
The annexation was advanced as a nonproject proposal. The SEPA checklist and DNS were based on that premise. But that premise is faulty. The annexation is tied to what the District deems to be inevitable development by known persons and entities. Yet the development plans were not part of the proposal. Because the District is not the proper authority to make land use decisions, the District merely speculates as to growth that ultimately may or may not be approved by the proper entities. Indeed, the record shows that one of the developers applied for a rezone of his land, but he withdrew the application to await the outcome of the District's annexation. The way this annexation was proposed gave the developer good reason to believe that it would promote a rezone.
One of the purposes of SEPA is to provide consideration of environmental factors at the earliest possible stage to allow decisions to be based on complete disclosure of environmental consequences. WAC 197-11-055 . Likewise, the environmental impact statement preparation process must begin early enough so the statement can actually contribute to the decision-making process rather than be used to rationalize decisions already made. WAC 197-11-406 ; King, 122 Wn.2d at 666-67.
The Washington Supreme Court has noted:
Decisionmaking based on complete disclosure would be thwarted if full environmental review could be evaded simply because no land use changes would occur as a direct result of a proposed government action. Even a boundary change, like the one in this case, may begin a process of government action which can "snowball" and acquire virtually unstoppable administrative inertia.
King, 122 Wn.2d at 664.
Because the annexation of the territory was considered without reference to the specific project the developers had in mind, the annexation easily passed with a DNS. The development is the reason for the District's annexation and proposal to provide water services. The development plans should have been considered along with the annexation to address cumulative impacts. Boehm v. City of Vancouver, 111 Wn. App. 711, 720, 47 P.3d 137 (2002). For the same reason, an environmental protection statement should have been required. WAC 197-11-440(5)(c)(iii) (requiring an environmental impact statement to identify related proposals).
The City seeks attorney fees on appeal. But it cites only RAP 18.1. Rule 18.1(a) provides for attorney fees "[i]f applicable law grants to a party the right to recover reasonable attorney fees or expenses on review." The City fails to support its request with argument or citation to authority regarding the appropriate grounds for an award of fees. "Argument and citation to authority are required under the rule to advise us of the appropriate ground[] for an award." Wilson Court Ltd. P'ship v. Tony Maroni's, Inc., 134 Wn.2d 692, 710 n. 4, 952 P.2d 590 (1998). The request is denied. See also Interlake Sporting Ass'n v. Wash. State Boundary Review Bd., 158 Wn.2d 545, 560, 146 P.3d 904 (2006) (noting the absence of an attorney fee statute applicable to annexation). The District's request for attorney fees is also denied.
CONCLUSION
The Board's approval of the District's annexation is contrary to the Growth Management Act, the City/Douglas County comprehensive plan and planning goals, and SEPA. The Board's referenced findings of fact, conclusions of law and decision are affected by legal error, unsupported by material and substantial evidence in the record, and/or clearly erroneous. The requests for attorney fees are denied.
Reversed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
Brown, J. and Korsmo, J., Concur.