Judicial review of land use decisions and actions is fraught with traps for the unwary. In Stafne v. Snohomish County, __ Wn.2d __, __ P.3d __ (March 8, 2012), a unanimous State Supreme Court provided guidance on how to avoid one of those traps, but the decision may create another, and it leaves a fundamental question unresolved. The case is yet another reminder of the extreme precautions that must be taken in land use litigation.
Mr. Stafne asked the County to amend its Comprehensive Plan (Plan) by redesignating a section of land from forest resource land to rural residential. The County Council decided not to place Stafne’s proposed amendment on the annual docket of Plan amendments, and Stafne appealed this decision to Superior Court under multiple causes of action, including the Land Use Petition Act (LUPA). Stafne did not appeal to the Growth Management Hearings Board, apparently because it had held in a number of decisions that it did not have “jurisdiction” to review a local decision not to amend a comprehensive plan.
The Court of Appeals agreed with Stafne that in this situation an appeal to the Growth Board would be futile, and appeal under LUPA therefore available, but the Court dismissed Stafne’s LUPA petition as untimely. The Supreme Court upheld the dismissal but disagreed that LUPA was an appropriate cause of action, and rejected the argument that appeal to the Growth Board would have been futile. The Court reasoned that even though Plan amendments are usually discretionary and not required by the GMA, the Growth Board’s explanation of why a proposed amendment was not required by the GMA would be helpful to reviewing courts.
The Court acknowledged that the futility exception to the exhaustion requirement may, in some cases (but not this case), excuse failure to appeal a denial of a proposed Plan amendment to the Growth Board, explaining that “skipping review before the board [in such a case] simply would have allowed Stafne to appeal directly to the superior court under the procedures provided for in the GMA and APA.” The APA allows judicial review only of state agency actions, however, and without an appeal to the Growth Board, there would be no state agency action to review. Thus, the Court’s observation on this hypothetical issue may set another trap for the unwary.
Apparently, Stafne did not directly raise the issue of whether the GMA authorizes local governments to decline to “docket” and, therefore, refrain from considering proposed Plan amendments. While this is a common practice among local governments, RCW 36.70A.130 and .470 support an argument that local governments are obligated to legislatively consider all proposed comprehensive plan amendments each year and may not use the docketing process to defer or deny actual consideration and legislative action.
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