Washington State

Office of the Attorney General

Attorney General

Bob Ferguson

In the last week, the Washington State Supreme Court issued opinions on three cases argued by assistant attorneys general. In all three cases is was their first time arguing before the Supreme Court, and in each case they were successful. Here's to the beginning of three great case records!

Feil v. Eastern Washington Growth Management Hearings Bd.:   The State Parks Commission obtained county approval and a permit to develop a trail along the Columbia River, on public utility district property, on which the Department of Transportation (DOT) has a right-of-way.  Orchardists who lease land from DOT opposed the project, which will require the removal of some of their trees.  The orchardists filed suit with the Eastern Washington Growth Management Hearings Board (Board) arguing that the permit process was actually an invalid amendment to the local Growth Management Act (GMA) plan regarding Agricultural lands.   The Court upheld the Board’s conclusion that it lacked jurisdiction to consider whether the permit complies with the GMA because the permit was a site-specific land use decision that could only be challenged under the Land Use Petition Act.  The Court also rejected the orchardists’ contention that the regulations permitting the development of agricultural land violate article XI, sec. 11 of the state constitution, by conflicting with a general state policy of protecting agricultural land.  The Court concluded that any challenge to the consistency of the rules with the GMA had to have been made within 60 days of the enactment of the rules.  Finally, the Court affirmed the award of attorney fees to the county and to Parks, since they had prevailed in the judicial proceedings.  The Court stated that such an award is not based on an inquiry into whether the county and Parks prevailed at every stage of the entire history of the trail project.  Congratulations to Jim Schwartz on his success in his first Supreme Court argument!

Citizens for Rational Shoreline Planning (CRSP) v. Building Industry Association of Whatcom County:  Whatcom County adopted a local shoreline master program (SMP), as required by the state Shoreline Management Act.  The SMP contained revisions mandated by the Department of Ecology.  CRSP alleged that the SMP violates RCW 82.02.020, which restricts the imposition of taxes by local political subdivisions on development.  The Court held that the SMP was developed by the County under the shadow of Ecology’s control.  The SMP did not become final until it was approved by Ecology, and contained the provisions mandated by Ecology.  Given Ecology’s pervasive control, RCW 82.02.020 is inapplicable.  Congratulations to Kelly Wood on his successful first argument in the Supreme Court!

Flight Options v. Department of Revenue:  Flight Options sells fractional ownership interests in airplanes that come into Washington.   The State assessed property tax on Flight Options’ fleet, based on the percentage of the fleet’s takeoffs and landings that occurred in Washington.   Due process requires “some minimum connection” between the State and the property being taxed.  In a 9-0 decision, the Court held that Flight Options’ property had acquired a tax situs in Washington, even though the airplanes were not operated on fixed routes and regular schedules.  Fixed routes and regular schedules can establish a tax situs, but are not necessary.  Flight Options’ average of two visits a day to Washington was sufficiently habitual to put it on notice that it was subject to Washington tax.  The Court further found that the tax was properly apportioned to limit the tax to the proportion of time the property spent in Washington.  Finally, the Court concluded that chapter 84.12 RCW provides statutory authority for the tax assessment.  Congratulations to Brett Durbin on a successful first flight in the state Supreme Court!

-Sarah Lane-