AGO 1992 No. 23 - Oct 13 1992
GROWTH MANAGEMENT ACT--GROWTH PLANNING HEARINGS BOARDS--PROPERTY--ADMINISTRATIVE LAW--Appeal to Growth Planning Hearings Boards Based on Claim That Regulation has Negative Impact on Property
1. RCW 36.70A.280 authorizes the Growth Planning Hearings Boards to hear petitions which allege that governments planning under the Growth Management Act are not in compliance with the requirements of the Act as it relates to plans and regulations adopted pursuant to RCW 36.70A.040. One requirement of the Act is that governments adopting plans and regulations consider the goal of protecting private property rights. The Boards have jurisdiction over petitions that allege that private property rights have not been considered or have been considered in an arbitrary or discriminatory manner.
2. The Growth Management Act does not contain any provision prohibiting the adoption of plans and regulations that may negatively affect a particular private property interest. Therefore, RCW 36.70A.280 does not authorize the Growth Planning Hearings Boards to grant relief to a specific property owner if plans and regulations do have a negative impact on the owner's specific property and a property owner cannot challenge plans or regulations based solely on a claim that the plans or regulations result in a negative impact on the owner's property.
3. A city or county that adopts plans or regulations pursuant to RCW 36.70A.040 is not required to give individual notice to each property owner whose property value may be negatively impacted as a result of the plans or regulations.
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October 13, 1992
Honorable Elmira Forner
417 John L. O'Brien Building
Post Office Box 40694
Olympia, Washington 98504-0694
Cite as: AGO 1992 No. 23
Dear Representative Forner:
By letter previously acknowledged, you asked our opinion on several questions related to the Growth Management Act, chapter 36.70A RCW as it relates to the protection of private property rights. RCW 36.70A.040 requires certain counties and cities to adopt a comprehensive land use plan and development regulations. RCW 36.70A.280 provides that the Growth Planning Hearings Boards, established pursuant to RCW 36.70A.250, can hear and determine certain petitions challenging the plans and regulations adopted pursuant to RCW 36.70A.040. Your questions relate to this appeal process. This opinion does not involve a property owner's ability to seek relief in court for an alleged unconstitutional taking of private property by the government. The appeal process before the Growth Planning Hearings Boards does not limit the relief available to a property owner in such a judicial action.
We paraphrase your questions as follows:
1. Do the Growth Planning Hearings Boards have the statutorily conferred jurisdiction to hear a claim which alleges that a city or county failed to properly consider the impact of its comprehensive plans or regulations on private property rights?
2. Do the Growth Planning Hearings Boards have the statutorily conferred jurisdiction to determine whether a comprehensive plan or regulation negatively impacts an individual owner's specific property?
3. If the answer to Question 2 is yes, what criteria should the Growth Planning Hearings Board use in determining whether the plans or regulations result in a negative impact on the owner's property?
4. Is a county or city that adopts comprehensive plans or regulations pursuant to RCW 36.70A.040, required to give individual notice to each private property owner whose property value may be negatively impacted as a result of the plans or regulations?
The answer to Question 1 is yes. The answers to Questions 2 and 4 are no. Since the answer to Question 2 is no, we do not reach Question 3.
Before addressing the specific questions, some background discussion of the relevant law is necessary. Your inquiries relate mainly to the Growth Management Act (GMA), originally enacted in 1990. Laws of 1990, 1st Ex. Sess., ch. 17. This legislation was intended to govern certain counties and cities in planning urban growth.
The GMA requires some government entities to formulate and enact comprehensive land use plans and development regulations. RCW 36.70A.040. Each plan must include the following mandatory items:
1. A land use element
2. A housing element
3. A capital facilities element
4. A utilities element
5. A rural element (for counties only)
6. A transportation element
RCW 36.70A.070. Those counties which must act are to designate an urban growth area within which urban growth may occur but outside of which only nonurban growth is permitted. RCW 36.70A.110. Those counties and cities must enact development regulations to implement the comprehensive plan. RCW 36.70A.120. The GMA also specifies that government entities must designate and adopt development regulations addressing natural resource lands and critical areas. RCW 36.70A.060, .170.
In developing and implementing the comprehensive plan and development regulations, government entities are required to establish procedures for public participation. RCW 36.70A.140. That provision further states: "Errors in exact compliance with the established procedures shall not render the comprehensive land use plan or development regulations invalid if the spirit of the procedures is observed." Id.
In addition to the requirements set forth above, the GMA also sets forth a list of goals which are to be considered in enacting plans and regulations. The statute provides:
Planning goals. The following goals are adopted to guide the development and adoption of comprehensive plans and development regulations of those counties and cities that are required or choose to plan under RCW 36.70A.040. The following goals are not listed in order of priority and shall be used exclusively for the purpose of guiding the development of comprehensive plans and development regulations [.]
RCW 36.70A.020 (emphasis added). The GMA then lists the following 13 goals:
1. Urban growth
2. Reduced sprawl
5. Economic development
6. Property rights
8. Natural resource industries
9. Open space and recreation
11. Citizen participation and coordination
12. Public facilities and services
13. Historic preservation
In 1991, the GMA was modified and expanded. Laws of 1991 1st Sp. Sess., ch. 32. Additional requirements and considerations were mandated for planning. As relevant to the present questions, however, the most significant change to the GMA in 1991 was the creation of the Growth Planning Hearings Boards (Boards).
Three boards with regional jurisdictional boundaries were established. RCW 36.70A.250. The members of the Boards are appointed by the Governor. RCW 36.70A.260. The Boards are granted authority to hear only those petitions which allege either:
(a) That a state agency, county, or city is not in compliance with the requirements of this chapter, or chapter 43.21C RCW as it relates to plans, regulations, and amendments thereto, adopted under RCW 36.70A.040; or (b) that the twenty-year growth management planning population projections adopted by the office of financial management pursuant to RCW 43.62.035 should be adjusted.
RCW 36.70A.280(1). The Final Bill Report on the 1991 amendments states that the Boards were created to resolve disputes regarding the GMA. Final Bill Report, ESHB 1025, Laws of 1991, 1st Sp. Sess., ch. 32.
The GMA discusses the Boards' review of petitions:
Comprehensive plans and development regulations, and amendments thereto, adopted under this chapter are presumed valid upon adoption. In any petition under this chapter, the board, after full consideration of the petition, shall determine whether there is compliance with the requirements of this chapter. In making its determination, the board shall consider the criteria adopted by the department under RCW 36.70A.190(4). The board shall find compliance unless it finds by a preponderance of the evidence that the state agency, county, or city erroneously interpreted or applied this chapter.
RCW 36.70A.320 (emphasis added). In issuing a final order, the Boards must base their decisions exclusively on whether the city, county, or state agency is in compliance with the requirements of chapter 43.21 RCW. RCW 36.70A.300(1). The Boards must find either (1) that the government entity is in compliance with the GMA, or (2) that the government entity is not in compliance and remand to the effected entity for compliance. Id. Any party aggrieved by the Boards' final order may appeal to the Thurston County Superior Court. RCW 36.70A.300(2).
Do the growth planning hearings boards have the statutorily conferred jurisdiction to hear a claim which alleges that a city or county failed to properly consider the impact of its comprehensive plans or regulations on private property rights?
The first question addresses whether the Boards may hear petitions alleging that the government entities failed to properly consider the impact of their actions upon private property. This question relates to the Boards' authority to review petitions. As discussed above, the Boards may hear only those petitions which (a) allege noncompliance with the requirements of the GMA (or SEPA as it relates to plans or regulations adopted pursuant to RCW 36.70A.040), or (b) challenge the planning population projections. Thus, for purposes of the first question, in order to bring a petition before the Boards the challenge must be to government entities' compliance with the requirements of the GMA.
The GMA contains a list of goals which must be considered in developing comprehensive plans and regulations. RCW 36.70A.020. One of the 13 designated goals provides: "Property rights. Private property shall not be taken for public use without just compensation having been made. The property rights of landowners shall be protected from arbitrary and discriminatory actions." RCW 36.70A.020(6).
The concept that private property shall not be taken for public use has its origins in the Fifth Amendment of the United States Constitution which provides in part that "[n]or shall private property be taken for public use, without just compensation." This restriction is applied to the states through the Fourteenth Amendment to the United States Constitution. Article 1, section 16 (amendment 9) of the Washington Constitution provides the same right. Sintra, Inc. v. Seattle, 119 Wn.2d 1, 13, 829 P.2d 765 (1992).
In addition to outright physical appropriation of property, a taking can be accomplished by over-regulation. A taking by regulation is often called an inverse condemnation, because the condemnation is found by the court after it has already been implemented by the regulation.
Id.; seeLucas v. South Carolina Coastal Coun., ____ U.S. ____, 119 L. Ed. 2d 561, 112 S. Ct. 2886 (1992).
The GMA lists the protection of private property rights as a goal in the development of plans and regulations. That goal has two distinct component parts. First, is the constitutional requirement of compensation for a taking of property, and second is the protection of property rights from arbitrary and discriminatory actions even when there is no constitutional taking. RCW 36.70A.020 provides that the goals (including property rights) "shall be used exclusively for the purpose of guiding the development of comprehensive plans and development regulations". Accordingly, government entities are required to consider the impact of their actions upon private property rights. The failure to do so constitutes noncompliance with the requirements of the GMA giving the Boards jurisdiction over such claims.
In our judgment, therefore, the Boards have jurisdiction over a petition which alleges that private property rights have not been properly considered, or have been considered in an arbitrary or discriminatory manner. We do not speculate about what type of fact situation would be sufficient to warrant a finding of noncompliance with the GMA. That is clearly the province of the Boards.
RCW 36A.70.320 provides that the Boards are to uphold the plan or regulation unless they find "by a preponderance of the evidence that the state agency, county, or city erroneously interpreted or applied this chapter." As it relates to Question 1, the GMA requires that private property rights shall be considered. If the Boards find by a preponderance of the evidence that government entities failed to consider the impact of their actions on private property rights, such entities would have erroneously applied the provisions of the GMA.
Additionally, RCW 36.70A.020(6) provides that such rights are to be free from "arbitrary and discriminatory actions". Thus, if the Boards find by a preponderance of the evidence that government entities considered private property rights but did so in an arbitrary or discriminatory manner, noncompliance with the GMA also would be established. Upon a determination of noncompliance for whatever reason, the matter is remanded to the relevant government entity for compliance. RCW 36.70A.300(1).
It is important to note that the Boards' jurisdiction relates to the process a local government follows in adopting its plans and regulations. RCW 36.70A.020(6) requires that local governments consider the goal of protecting private property. However, once this goal is considered, the GMA does not require that local governments reach a particular conclusion.
The GMA lists 12 other goals which must also be considered in developing comprehensive plans and regulations. These goals cover a number of areas ranging from reducing sprawl to promoting economic development to protecting natural resources. RCW 36.70A.020(2), (5), (8). The GMA does not dictate any particular goal, such as the protection of property interests should dominate over other goals. Rather, there is an inherent tension in seeking to accommodate by comprehensive action all of these goals, some of which are in conflict. Government entities must weigh these goals and exercise discretion in determining how to address them in enacting their plans and regulations.
Thus, with regard to property rights, a government entity is not in compliance with the GMA if it fails to consider property rights in developing its plans and regulations, or if it considers property rights in an arbitrary and discriminatory manner. The Boards have jurisdiction to consider these issues.
Do the growth planning hearings boards have the statutorily conferred jurisdiction to determine whether a comprehensive plan or regulation negatively impacts an individual owner's specific property?
The thrust of this question appears to relate to which forum is available to consider concerns about the protection of specific private properties. Not every negative impact on private property implicates the constitutional protection of property but some negative impacts do raise the issue of the taking of private property. Although your question is phrased in broader terms, it essentially addresses whether a private landowner, with reference to his or her own specific property, can seek redress for an alleged unconstitutional taking by an appeal through the Growth Planning Hearings Boards process established in the GMA.
The focus of this question changes from the general validity of the comprehensive plan or regulation to the impact of the plan or regulation upon a particular individual. Essentially, your question is whether allegations of negative impact upon a specific piece of private property are claims of noncompliance with the GMA, such that the Boards have authority to review such petitions and grant relief for the specific property owner. We could answer that question in the affirmative only if the GMA requires government planning action to be free of negative impacts on any private property interests. We find no such requirement in the GMA.
The GMA specifies the mandatory elements to be included in the comprehensive plan. RCW 36.70A.070. Nothing in this section, however, indicates that government planning action must be neutral with respect to private property interests. Accordingly, no relevant requirement is found in that section.
As discussed above, however, the GMA contains a goal providing that private property shall neither be taken without compensation nor be subject to arbitrary or discriminatory action. RCW 36.70A.020(6). This goal does not prohibit government entities from adopting comprehensive plans or regulations that result in an inverse condemnation of property that could be considered a taking under the constitution. (Of course, if the government takes private property, it will be liable for just compensation. See, e.g., Sintra,, 119 Wn.2d 1.)
Rather, this goal requires that government entities consider the impact of their plans and regulations upon property rights and that they not do so in an arbitrary or discriminatory manner. In this respect, the property rights goal provides statutory protection for property rights in addition to the protection provided by the constitution. The constitution prohibits taking private property without just compensation. The constitution does not require that government entities consider the impact of their plans and regulations on property rights prior to adoption, but the Legislature has required such consideration under the GMA.
The Boards were created to resolve questions about whether government entities have complied with the requirements of the GMA. These include the 13 goals to guide the adoption of plans and regulations. Property rights is but one of 13 goals. RCW 36.70A.020. No goal in the GMA takes precedence over the others. The goals are not listed in order of priority and some of the goals are in conflict. The challenge for government entities is to weigh these goals and decide which goals are most important in their local communities when formulating plans and regulations.
The Boards were not created to consider or resolve questions regarding the specific impact of plans or regulations on individual property. Nor were they intended to be a forum for resolution of specific takings questions involving individual property. The purpose of the Boards is to ensure that government entities comply with the planning goals and requirements of the GMA. Accordingly, a claim of negative impact upon specific private property does not constitute a challenge to compliance with the property rights goal of the GMA.
The GMA also contains a provision directing that the Attorney General's Office develop a process for the consideration of the constitutional protection of property being taken without compensation. RCW 36.70A.370 provides in part:
(1) The state attorney general shall establish by October 1, 1991, an orderly, consistent process, including a checklist if appropriate, that better enables state agencies and local governments to evaluate proposed regulatory or administrative actions to assure that such actions do not result in an unconstitutional taking of private property. It is not the purpose of this section to expand or reduce the scope of private property protections provided in the state and federal Constitutions. The attorney general shall review and update the process at least on an annual basis to maintain consistency with changes in case law.
An analysis of that section shows that it also does not provide the basis for concluding that a negative impact on a specific private property right constitutes noncompliance with the planning requirements of the GMA. RCW 36.70A.370 relates only to the question of an unconstitutional taking of property. To the extent your question addresses impacts upon specific property that do not rise to the level of an unconstitutional taking, that statute does not apply.
For possible constitutional taking claims, RCW 36.70A.370 is designed to assist government entities in the evaluation of proposed comprehensive plans and regulations. While the Legislature provided a process to alert government entities to the potential costs of a "taking", it further provided that the review process is protected as an attorney client privilege. RCW 36.70A.370(4). This statute is directed to the process for evaluating impact, not the resultant decision.
The GMA is directed at comprehensive decisions. The requirements deal with the necessary elements and considerations on a broad basis. RCW 36.70A.370 must be evaluated in terms of the overall intent of the GMA. With this view, the process is established to ensure that government entities consider the overall issue of the possible constitutional compensation requirement for the taking of property. It is not intended as a mechanism for addressing whether there is in fact a taking and, if so, what is the compensation that is required to be paid for a particular piece of property.
For these specific situations, judicial review is available. Private property rights are protected by both the United States and Washington Constitutions. SeeSintra, 119 Wn.2d at 13; Robinson v. Seattle, 119 Wn.2d 34, 49, 830 P.2d 318 (1992); Lucas v. South Carolina Coastal Coun., ____ U.S. ____, 119 L. Ed. 2d 561, 112 S. Ct. 2886 (1992). The courts may award monetary damages for constitutional takings. SeeSintra, at 24. Thus, while the courts are available as forums to address such property rights claims, the Legislature has not given the Boards authority to provide relief for the "taking" of a specific property. We emphasize that the Boards' lack of jurisdiction over these individual claims in no way limits the relief available in court. Indeed, the Legislature appears to have made the judgment that the courts remain the proper forum to resolve an individual property owner's takings claim.
In summary, the GMA does not contain any provision prohibiting the adoption of comprehensive plans or development regulations based solely on the fact that such plans or regulations may negatively affect a particular private property interest. Nor does the GMA authorize the Boards to grant relief to specific property owners if the comprehensive plans and regulations do have a negative impact upon those specific properties. Accordingly, we conclude that a private property owner cannot seek relief from a negative impact on that owner's specific property by appealing to the Boards.
If the answer to Question 2 is yes, what criteria should the growth planning hearings board use in determining whether plans or regulations result in a negative impact on the owner's property?
Since the answer to Question 2 is no, we do not reach Question 3.
Is a county or city that adopts plans or regulations pursuant to RCW 36.70A.040 required to give individual notice to each private property owner whose property may be negatively impacted as a result of the plans or regulations?
Your final inquiry is whether government entities must provide individual notice to property owners whose property may sustain a negative impact from government action relating to comprehensive plans and development regulations. You specifically reference RCW 36.70A.140 and .290. RCW 36.70A.140 requires government entities planning under the GMA to establish a procedure for public input during planning and implementation. This section does not specifically require individual notice.
RCW 36.70A.290 establishes the filing date for petitions before the Boards. Such petitions must be filed within 60 days of the date cities and counties publish notice of the adoption of comprehensive plans or development regulations. This section does not specify the form of the publication. Thus, the general city and county procedures for publication of ordinances and resolutions would govern. Cities are required to publish ordinances, or summaries thereof, in their official newspapers. RCW 35.21.180, 35.22.288, 35.23.310, 35.24.220, 35.27.300, 35.30.018, 35A.12.160. Similarly, counties are required to publish notices in their official newspapers. RCW 36.32.120(7). These statutes do not require that individual notice be given. We have found no provision in the GMA requiring notice directly to individuals who may be affected by actions taken under its provisions. Absent a specific statutory statement, there is no basis for imposing an individual notice standard with respect to planning actions.
You also ask whether any other state law relating to comprehensive planning or development regulations requires individual notice. Chapter 36.70 RCW, which grants authority for county and regional planning, requires notice of public hearings on comprehensive plans to be given through publication in a newspaper of general circulation in the county and in the official gazette of the county if one exists. RCW 36.70.390. Similarly, the planning commission statute, authorizing municipalities to adopt comprehensive plans, requires notice of proposed adoption to be given by publication in a newspaper and official gazette. RCW 35.63.100. See also 35A.63.070 (requiring the same for code cities). Again, neither of these sections mandates individual notice and thus no such requirement can be implied.
Because of the broad nature of this inquiry and the numerous statutes which arguably relate to comprehensive planning and development regulations, we cannot categorically state that no provisions exist which require individual notice. As discussed above, however, we reviewed the statutes specifically addressing the area of comprehensive planning by cities and counties and found no section requiring individual notice.
We trust this opinion will be of assistance to you.
Very truly yours,
KENNETH O. EIKENBERRY
STACIA E. REYNOLDS
Assistant Attorney General
WILLIAM B. COLLINS
Senior Assistant Attorney General
 For ease of reference those cities and counties either required to plan or choosing to plan, under RCW 36.70A.040, and thus subject to the requirements of the GMA, will be referred to in this opinion as "government entities".
 Chapter 43.21C RCW is the codification of the State Environmental Policy Act (SEPA). That act requires that environmental impact be considered in authorizing government actions. SeeCougar Mountain Assoc. v. King Cy., 111 Wn.2d 742, 765 P.2d 264 (1988). In the context of the GMA, SEPA requires that government entities consider environmental impacts in adopting comprehensive plans and development regulations.
 That section requires the Department of Community Development to adopt "procedural criteria to assist counties and cities in adopting comprehensive plans and development regulations that meet the goals and requirements of this chapter." These rules were filed with the Code Reviser, pursuant to the Administrative Procedure Act, on September 2, 1992.
Such final order shall be based exclusively on whether or not a state agency, county, or city is in compliance with the requirements of this chapter, or chapter 43.21C RCW as it relates to plans, regulations, and amendments thereto, adopted under RCW 36.70A.040.
 If the matter is remanded on the Boards' own motion or that of the petitioner, the Boards may hold a second hearing to determine compliance. RCW 36.70A.330(1), (2). If the Boards find the entity not to be in compliance, they transmit the finding to the Governor. RCW 36.70A.330(3). The Governor may take action including the withholding of funds. RCW 36.70A.340.
 The requirement in RCW 36.70A.020(6), that local governments consider the goal of property rights, should not be confused with the requirement in RCW 36.70A.370, that local governments utilize the process established by the Attorney General to evaluate proposed regulatory or administrative actions to assure that such actions do not result in an unconstitutional taking of private property. RCW 36.70A.370(4) provides that the "process used by government agencies shall be protected by attorney client privilege." A copy of the process issued by the Attorney General in February 1992 is attached to this opinion. It contains an express statement that "[a] private party, however, does not have a cause of action against an agency for failure to utilize the recommended process."
The date of publication for a city shall be the date the city publishes the ordinance, or summary of the ordinance, adopting the comprehensive plan or development regulations, or amendment thereto, as is required to be published. Promptly after adoption, a county shall publish a notice that it has adopted the comprehensive plan or development regulations, or amendment thereto. The date of publication for a county shall be the date the county publishes the notice that it has adopted the comprehensive plan or development regulations, or amendment thereto.
 We note that the Boards have filed proposed regulations with the Code Reviser governing petitions for review filed with the Boards. See WAC 242-02-230, State Register 92-15-134 (Aug. 1992). However, this regulation does not impose a requirement upon local governments to give individual notice to each private property owner whose property nay be negatively impacted as a result of the plans or regulations.
 Although chapter 36.70 RCW, entitled the Planning Enabling Act, authorizes counties and regions to plan, it does not require such action of specified government entities as does the GMA, chapter 36.70A RCW.
 We note that SEPA requires that notice of government action under its provisions requires notice be given to individuals by mailing notice of a particular project to the latest recorded real property owners who share a common boundary line with the property upon which the project is proposed. RCW 43.21C.080.