February 8, 2015
Division II Court of Appeals Upholds County’s Denial of Proposed Amendment to Comprehensive Plan and Zoning
On February 3, 2015, Division II of the Washington Court of Appeals upheld Whatcom County’s denial of a proposed amendment to its comprehensive plan and zoning map. The case, Concrete Nor’West v. Western Wash. Growth Management Hearings Bd., involved gravel mine operator Concrete Nor’West’s application to amend Whatcom County’s comprehensive plan and zoning map to designate certain property mineral resource land (MRL), thus opening it to mining and related construction. Specifically, Concrete Nor’West sought to expand a MRL overlay onto a parcel adjacent to its mine and to re-designate that parcel from commercial forestry land to MRL. Staff at the County’s Planning and Development Services, as well as the County’s Planning Commission, recommended approval of the proposed amendment and forward it to the Whatcom County Council for approval. The amendment, however, failed to garner a majority of the Council (primarily due to concerns about water quality and the effects of future mining on nearby agricultural lands) and was not adopted despite the fact that the land met the County comprehensive plan’s criteria for designation as MRL.
Concrete Nor’West petitioned the Growth Management Hearings Board for review, arguing that because the Growth Management Act (GMA) required counties to act in conformity with their comprehensive plans and because the parcel met the comprehensive plan’s criteria for designation as MRL, the Council had a duty under the comprehensive plan and the GMA to pass the amendment and re-designate the land. The Board rejected this argument, the superior court affirmed, and Concrete Nor’West appealed to the Washington Court of Appeals.
The Court of Appeals affirmed. The court first discussed the GMA’s requirements and the County’s comprehensive plan, noting that the comprehensive plan permitted amendments only when five criteria were met. Most relevant to the issues before the court, the third criterion for amendment specified that the public interest must be served by approving the amendment. Factors for the County’s consideration of public interest include the anticipated impact on designated agricultural, forest, and MRLs and the anticipated effect on the conversion of land. The court also noted that nowhere did the goals and policies set forth in the comprehensive plan state that parcels satisfying the MRL designation criteria must be designated as MRL, or impose a duty to designate a certain amount of MRLs. Rather, the comprehensive plan recognized the importance of MRLs but also made clear that fostering them must be accomplished in a way compatible with the protection of other resources.
Similarly, the court found that the GMA required counties to designate land as MRL only “where appropriate,” leaving the County discretion to decide how to balance competing interests. Because nothing in the County’s comprehensive plan required designation of the property as MRL, the County did not violate the GMA by rejecting the proposed amendment.