County, builders in limbo after ruling - Appeals court calls for more evidence for growth lines

Keri Brenner
The Olympian

Thurston County, WA - 4/4/07 - Zoning rules designed to limit sprawl in rural Thurston County are in limbo after both sides claimed victory in the county’s appeal in an important growth-management case.

After almost two years of uncertainty, the state Court of Appeals ruled Tuesday that Thurston County must present more evidence to justify the size of the county’s urban growth area or else shrink it.

At the same time, the court said the county’s use of “innovative techniques,” such as cluster zoning to preserve open space, does comply with a state requirement to provide a variety of rural zoning districts.

The split decision gave no clear message for landowners worried that their land could be “downzoned” to a lesser density or otherwise affected by government mandates.

“The county feels it was successful in several parts of the appeal,” Thurston County Deputy Prosecuting Attorney Jeff Fancher said Tuesday.

“We’re happy with the part of the decision that went our way, and the county is confident it be found in compliance with the (state) Growth Management Act after we provide more information,” Fancher said.

But Tim Trohimovich, planning director of Seattle-based land-use watchdog group Futurewise, said his group interprets the appeals court decision as an overwhelming victory for his group’s position.

“We think it’s a resounding win,” Trohimovich said. “We won on all the important issues: The county needs to stop wasting its money on appeals and start meeting its deadlines to protect water quality and preserve rural character in Thurston County.”

Fancher, meanwhile, has scheduled a public presentation on the county’s position for about 3 p.m. Thursday, following a private session at 2 p.m. with the Thurston County Commission. Both meetings are at the county courthouse in Olympia.

“The county’s still trying to digest the court’s decision and decide where to go from here,” Fancher said. “At this point, I’m still evaluating the decision.”

The split decision was on the county’s appeal to a July 2005 ruling by the Western Washington Growth Management Hearings Board. The hearings board action was triggered by a complaint filed by Futurewise, formerly 1,000 Friends of Washington.

Futurewise had complained that the county’s comprehensive plan didn’t do enough to protect rural lands from being overwhelmed by housing developments and was not strong enough to preserve water and other natural resources.

The hearing board agreed and ruled the county’s comprehensive plan was out of compliance with the state’s 1990 Growth Management Act in several areas. Those were:

• Too large an urban growth area.

• Not enough variety in zoning in the rural lands. “Lack of variety” refers to the fact that most rural lands in the county are zoned for one home per five acres; some rezoning plans discussed over the past year were for one home per 10 acres or one home per 20 acres.

• Inadequate criteria for designating lands for long-term agricultural use.

• Too many pockets of high-density development in the rural lands.

The county disagreed and appealed. In Tuesday’s decision, the appeals court:

• Upheld the growth hearing board decision on the size of the urban growth area — a win for Futurewise.

• Reversed or upheld — depending on which side you talk to — the growth hearings board on whether the county had not provided enough variety in rural zoning.

• Reversed the growth hearing board decision that parcel size was not a valid criterion for designating agricultural land — a win for the county.

• Upheld the growth hearing board ruling that the county’s “current use” criterion for designating agricultural land was invalid — a win for Futurewise. This means land capable of supporting commercial agriculture should be set aside for future long-term agricultural use, not just the land currently in farming.

The appeals court agreed with the county’s contention that “innovative techniques” could be used to meet that requirement, Fancher said.

“The court said the burden of proof was on the petitioner (Futurewise),” Fancher said. “The court said Futurewise did not meet its burden of proof.”

Trohimovich said he interpreted the issue of “innovative techniques” as a minor point. He said the appeals court affirmed the need for more lower-density zoning in the rural lands.

“These (wins for the county) are not significant issues, in our opinion,” Trohimovich said.

While the appeal has been in process, county planners have been working for almost two years to bring the county’s comprehensive plan into compliance with the growth hearing board ruling.

Last month, the county planning commission sent two proposals for rural rezoning to the county commission. Under the majority proposal, backed by five planning commissioners, 28.5 percent of rural lands would be rezoned, or 60,509 acres.

The majority proposal would rezone 59,392 acres of rural land to one home per 10 acres, and 1,117 acres to one home per 20 acres.

There was no word Tuesday on whether the county would adopt the Planning Commission’s recommendations.

Keri Brenner covers Thurston County and Tumwater for The Olympian. She can be reached at 360-754-5435 or kbrenner@theolympian.com.

RELATED STORY:

Groups appeal land-use plan

By Keri Brenner
The Olympian

Feb. 23, 2007

Two area land-use watchdog groups are appealing a Yelm-area section of Thurston County's comprehensive plan, saying its urban growth area is too large.

"If an urban growth area is bigger than it needs to be, it's costly to taxpayers," said Tim Trohimovich of Seattle-based Futurewise, one of the two appellants along with the Olympia-based Adams Cove Group. He added that it would lead to "paving over areas that are needed for groundwater recharge and paved surfaces that will cause discharge of polluted water into surface-water supplies."

The appeal, if approved by the Western Washington Growth Management Hearings Board, could result in the second time in two years that Thurston County has been ordered to rework parts of its comprehensive plan. The county is in the process of complying with the hearing board's first such ruling, issued in 2005.

Trohimovich and Adams Cove Group spokeswoman Gayle Broadbent said they filed the appeal Feb. 16 with the hearings board because the Yelm urban growth area is bigger than it needs to be to accommodate growth.

The hearing board's role is to make sure local governments comply with the state's 1990 Growth Management Act.

"Growth management is not just an abstract ideal," Broadbent said Thursday. "It's the future of our homes."

Jeff Fancher, a Thurston County deputy prosecuting attorney, said he received a copy of the appeal Tuesday and shared it this week with county staff.

John Sonnen, head of the county's long-range planning department, was out of the office this week and could not be reached for comment.

The Yelm-area section of the county's plan was approved by Thurston County commissioners Dec. 20.

Previous appeal

Futurewise, formerly known as 1,000 Friends of Washington, appealed various aspects of Thurston County's comprehensive plan update in July 2005, saying it did not comply with the Growth Management Act in several ways.

The hearing board agreed.

Thurston County planners spent the past year trying to bring the comprehensive plan into compliance, angering some rural landowners who objected to proposals to rezone their land to lesser densities. Earlier this month, the county Planning Commission presented Thurston County commissioners with three options for rezoning. The commission decided it wanted only one option and sent the three proposals back to the Planning Commission.

Thurston County has appealed the Western Washington Growth Management Hearings Board decision to the state Court of Appeals in Tacoma. Fancher said he was hopeful that there would be a ruling on the county's appeal by the end of this month but had no word one as of Thursday.

Keri Brenner covers Thurston County and Tumwater for the Olympian. She can be reached at 360-754-5435 or kbrenner@theolympian.com.

What's next

The Western Washington Growth Management Hearings Board has 180 days to issue a ruling on the appeal filed this month by Futurewise and the Adams Cove Group against the Yelm-area section of the Thurston County comprehensive plan. If the board rules that the Yelm's urban growth area is too large, county planners could have to rework their map.