| The Washington Supreme Court recently handed BIAW and the Olympia Master Builders (OMB) a major victory when it overturned a Court of Appeals decision involving significant Growth Management Act (GMA) issues.
In a 9-0 opinion, the Supreme Court in Thurston County, OMB, and BIAW v. Futurewise reversed the Court of Appeals which had upheld an adverse Western Washington Growth Management Hearings Board decision. The Court of Appeals and Growth Board ruled that Thurston County’s urban growth areas were too large. The Supreme Court also reversed the Court of Appeals and Growth Board which had ruled that Thurston County violated the GMA by allowing rural development at densities greater than one home per five acres. In addition, the Supreme Court upheld a portion of the Court of Appeals decision that ruled Thurston County complied with the GMA by providing a “variety of rural densities” through the use of cluster zoning and other innovative techniques.
The case began in 2004 when the environmental group, Futurewise, sued Thurston County over its comprehensive plan and development regulations. OMB and BIAW intervened in the lawsuit on behalf of the County. Futurewise argued Thurston County violated the GMA by allowing roughly 38 percent more land within its urban growth areas than projected development over the next 25 years. In addition, Futurewise challenged the County’s rural comprehensive plan element, claiming it violated the GMA by allowing densities greater than one home per five acres. As a result of the Growth Board’s decision in 2004, Thurston County imposed a building moratorium in much of the rural areas, shutting down development.
Many jurisdictions, when setting the size of their urban growth areas, allow more land than projected population. The excess land that is unlikely to be developed is called a “market factor.” The reason for allowing the excess land within urban growth areas is to ensure that there is sufficient developable land to meet housing needs. Futurewise argued Thurston County’s market factor was more than the 25 percent threshold the Growth Boards established in previous decisions. The Supreme Court struck down this argument stating that Growth Boards cannot create such a rule because the Boards “do not have authority to make public policy…let alone statewide policy.”
The Court further ruled there is no clearly defined rule when it comes to rural zoning. Numerous Growth Board decisions have held that any rural density greater than one home per five acres is a violation of the GMA. However, as the Supreme Court once again noted, the Growth Boards lack “the power to make bright-line rules regarding maximum rural densities.” The Supreme Court further explained the Legislature never specifically defined what constitutes a proper rural density, thus the Growth Boards are not free to make up their own definition.
In addition, the Supreme Court upheld a portion of the Court of Appeals decision that ruled Thurston County complied with the GMA by providing a “variety of rural densities” through the use of cluster zoning and other innovative techniques.
The opinion was authored by Justice Mary Fairhurst, with all of the other eight justices joining the decision.
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