BEFORE THE WESTERN WASHINGTON GROWTH

MANAGEMENT HEARINGS BOARD

JOHN SERVAIS and C. TIP JOHNSON, No. 00-2-0020, Petitioners,

FINAL DECISION AND ORDER

CITY OF BELLINGHAM, WHATCOM COUNTY and

WESTERN WASHINGTON UNIVERSITY, Respondents,

Bold - added by Servais

Note: Text in color is comments by Servais or Johnson

John Servais and C. ìTipî Johnsonfiled a petition for review (PFR) against the City of Bellingham, WhatcomCounty, and Western Washington University (WWU) on May 30, 2000.Ý Three issues were established in the July18, 2000, prehearing order, all of which were challenged by WWUís subsequentdispositive motion.Ý After briefing anda hearing, we entered an order on August 31, 2000, granting the motion as totwo of the issues and denying the motion as to issue #3.Ý Our August 31, 2000, order provides moredetail of the procedural background, the reasons for the decisions on themotions, and is incorporated herein by reference.Ý As a result of that order, the parties stipulated to WhatcomCountyís removal from further participation.Ý

In accordance with the prehearingorder the parties filed briefing for the hearing on the merits which was heldSeptember 21, 2000.Ý In its responsebrief dated September 8, 2000, WWU requested that we reconsider our August 31,2000, holding that the March 31, 2000, memorandum of agreement (MOA) (Ex. 237)constituted a development regulation (DR) under the Growth Management Act (GMA,Act).Ý Petitionerís reply brief, filedSeptember 14, 2000, objected to such reconsideration, pointing out that WAC242-02-832 allows for motions for reconsideration ìonly after issuance of afinal decision.îÝ At the hearing on themerits we allowed the parties to present oral argument on the issue regardingthe MOA.Ý

Petitionersí objection is well founded.Ý Nonetheless, we have acceded to WWUís request by once again reviewing the record, the briefing, and the arguments, in particular once again reviewing the Central Puget Sound Growth Management Hearings Boardís (CPSGMHB) case of Burien, et al., v. SeaTac and Port of Seattle, #98-3-0010 (FDO 8-10-98) (Burien).Ý We did so as an accommodation to Respondents to be totally fair to them, to ensure that our decision is compatible, if possible, with the decision in Burien and because this issue is one of first impression.Ý After another thorough review ofÝ this record, the Burien case and the arguments of the parties, we still conclude that the March 31, 2000, MOA is a DR (development regulation)under the definition found in RCW 36.70A.030(7).Ý A recitation of the facts established by this record is foundational to understanding the reasons for that conclusion.

On September 19, 1998, Bellinghamapproved the WWU Neighborhood Plan (Plan) (Ex. 488).Ý The Plan consists of a review of the neighborhood/campusìcharacterî including historical planning activities. The Plan notes that as aresult of the GMA ìÖWWU is also required to comply with local comprehensiveplans and development regulations.îÝÝOther sections of the Plan deal with city/university/neighborhoodrelationships, traffic circulation, parking, transportation management, openspace, property acquisition areas, drainage and water quality, and the laterdevelopment of an ìinstitutional master planî (IMP) required by BellinghamMunicipal Code (BMC) 20.40.Ý A series ofrecommendations is contained throughout the Plan.Ý The Plan specifically authorizes the use of a MOA for ìcampusdevelopmentî until approval of an IMP.Ý

The Plan noted that in 1974 the City approved a WWU Facilities Development Plan (FDP) that was to be later updated to become a master plan for campus development.Ý WWU submitted a 1981 updated FDP and a 1987 ìSouth Campus Master Plan.î Bellingham never formally reviewed or adopted either document.Ý No WWU plan after the 1974 FDP was approved by Bellingham until the 1998 Neighborhood Plan.Ý

On March 27, 1998, six months before approval of the Neighborhood Plan,Ý Bellingham and WWU entered into their first MOA (Ex. 474).Ý By its terms the 1998 MOA expired within 18 months of signing or upon completion of the IMP, whichever first occurred.Ý It was anticipated the IMP would be completed prior to or at that 18-month deadline.Ý Two years later, WWU and the City entered into the 2000 MOA (Ex. 237) which recognized that the IMP had not yet been completed and that, although the new MOA was often referred to in this record as an ìextensionî, the 1998 MOA had expired.Ý The WWU brief chided Petitioners for not challenging the 1998 MOA. Since that agreement had expired there was nothing about the 1998 MOA for Petitioners to challenge.Ý Rather, the Petitioners challenged the execution of Ex. 237 as being without compliance with GMA public participation goals and requirements and without compliance with the State Environmental Policy Act (SEPA).Ý

Ex. 237 is similar to the expired1998 MOA.Ý The 2000 MOA provides a oneyear expiration or completion of the IMP, whichever comes first.Ý An IMP is required under BMC 20.40 as aprecondition to any development.Ý TheMOA provides that Bellingham will waive that requirement and the MOA willìÖclarify the manner in which the City will process the permits for those [WWU]projectsÖ.îÝ

The MOA provides that the ìplanneddevelopment processî provided in BMC 20.38.040 will be used for ìsignificantîprojects listed in Attachment A.Ý The2000 MOA includes a different ìsignificantî projects list than the listcontained in the 1998 MOA.Ý The ratherconfusing provisions of the 2000 MOA provides that BMC 20.38.050A willgenerally apply to permit requests, except that BMC 20.42.050D will apply,except for certain exceptions, instead of BMC 20.38.Ý The MOA also provides that BMC 20.12.010A and B will not apply,BMC 20.12.010C(4) and (9) will not apply, BMC 20.12.010E(1) may or may notapply, and BMC 20.12.010E(8) will not apply.ÝThe MOA further provides that the parties (not involving the public)would negotiate as to which new projects are ìsignificantî and which arenot.Ý The nonsignificant projects willnot use the ìplanned development processîÝbut would use the normal permitting requirements of BMC 20.40.Ý

Thus, we are left with a recordthat reveals the adoption of a Plan specifically referencing a MOA, which byits terms directs and amends the adopted zoning code of the City ofBellingham, specifying the permit application and approval process fordevelopment projects on the WWU campus within the city limits ofBellingham.Ý The MOA implementsthe Plan through a variety of zoning code applications and exceptions from BMC20.12, 20.38, 20.40, and 20.42.Ý It ishard to envision how this agreement does not fall within RCW 36.70A.030(7)which defines DRs as ìÖthe controls placed on development or land useactivities by a county or cityÖîÝ

Special counsel for WWU was also counsel in the Burien case. ÝHe adamantly contended that the MOA was not intended to be a GMA document and that it was exactly the same as the interlocal agreement (ILA) that was found by CPSGMHB not to be a GMA action.Ý WWU contended that the sole intent of the MOA was to ìresolve a jurisdictional disputeî between Bellingham and WWU.

While there is some serious question as to what this ìjurisdictional disputeî would be in light of RCW 36.70A.103 requiring state agencies to comply with local CPs and DRs, as well as the recognition in the 1998 Plan that such a requirement exists under the GMA, we look to the contention that the parties intent was not to establish a DR and to the CPSGMHBís reasoning in the Burien case.

Nowhere in the GMA definition of aDR has the Legislature incorporated the concept of intent of the parties todetermine whether an action is or is not a DR.ÝNor is the holding in Burien inconsistent with our conclusionhere.Ý

The significant facts of the Buriencase involved a dispute between the City of SeaTac and the Port of Seattle asto the third runway issues at SeaTac Airport.ÝThe ILA was an agreement between the parties to avoid future litigationas to jurisdiction over the third runway issues.Ý As part of that agreement, the City of SeaTac proposed amendmentsto its CP and DRs.Ý Prior to executionof the ILA, a period of almost one year of public hearings discussing the termsof the ILA and the proposed amendments occurred.Ý As noted at p. 11 of the FDO, the public was provided aìreasonable opportunity to comment.îÝAlthough the CPSGMHB gratuitously noted the ILA was ìnot a GMA action,îat p. 10 it stated the key question was whether the ILA dictated the amendmentsto the cityís CP and/or DRs.Ý Burienspecifically held that ìthe ILA did influence but did not dictate theform, substance, and timing of some of the proposedÖ.amendments.îÝ (Emphasis supplied).Ý A finding at p. 12 and a conclusion at p. 13of the FDO both held the ILA did not amend either the plan or the zoningcode.Ý

An entirely different situationexists under the record in this case.ÝThe MOA directs not only the application of the zoning code to differentareas of the WWU campus, but modifies the provisions of BMC 20.40 and exemptsprovisions of BMC 20.12 and 20.38.ÝDifferent projects and different areas of the campus have differentmodifications of the zoning code.Ý Thelegal effect of those modifications is an amendment to the zoning code withinthe confines of the WWU campus.Ý

We turn then to the issues ofpublic participation and SEPA compliance.

Respondents somewhat vaguely arguethat, at least as to ìsignificantî projects, a public process and hearing isallowed under the zoning code conglomeration found in the MOA.Ý It is clear that providing a later publichearing does not comply with the GMA.ÝThe Legislature specifically excluded suchÝ ìpermit approvalî from the definition of a DR found in RCW36.70A.030(7).Ý GMA focuses on theprocess under which a permit application is processed and the previouslyadopted standards used for approval or denial decisions.Ý

The City and WWU contended compliance with GMA public participation goals and requirements was achieved because a notice for a worksession (Ex. 229) was widely distributed and specifically sent to Petitioners here.Ý The notice provided that in the ìafternoonî of February 28, 2000, the City Council would hold a ìworksessionî to discuss the proposed MOA.Ý That worksession apparently occurred between 2:10 p.m. and 3:30 p.m. (Ex. 236).Ý A transcript of that worksession (Ex. 558) revealed that the Council and Senior Planner Greg Aucutt, but not the public, discussed the new MOA.Ý Mr. Aucutt noted that the Plan ìsuggestedî that ìcampus developmentî was to be governed by an IMP.Ý He noted that the ìmain campus area is zoned institutional,îÝ and that the development of the IMP was ìlikely to take some time; maybe months, perhaps years.îÝ A motion to authorize execution of the MOA was approved 6 to 0.Ý The minutes of the regular meeting of the Council (Ex. 236) is unclear whether the original or another worksession took place after 7:00 p.m. on February 28, 2000, or whether any further discussion and/or vote occurred during the regular Council meeting.Ý In any event, the mere noting of and holding a worksession does not comply with GMA public participation goals and requirements.

ÝUnder RCW 36.70A.140 a city is required to provide a process ìfor early and continuous public participation in the development and amendment of comprehensive land use plans and development regulations implementing such plans.îÝ (Emphasis supplied).Ý While Bellingham contended that worksessions would always allow public comment, that argument is mere bootstrapping.Ý There was no requirement for the Council to accept comments from the public, in fact a worksession is most often not for public input.Ý The City did not provide for or encourage early and continuous public participation for this DR.Ý Again, the record in this case is substantially different than the facts set forth in Burien.Ý

Even with the presumption of validity found in RCW 36.70A.320(1) and the increased deference afforded to local governments under RCW 36.70A.3201, we find under the clearly erroneous standard that Petitioners have sustained their burden of proving that the 2000 MOA did not comply with GMA public participation goals and requirements. - this is the finding.

We further find that Petitionershave not sustained their burden with regard to the claim of failure to complywith SEPA requirements.Ý In 1993 WWUissued a draft environmental impact statement (Ex. 30) and a finalenvironmental impact statement (Ex. 33) for its campus master plan (which wasnever reviewed or adopted by the City).ÝIn 1996 WWU issued an addendum to these documents (Ex. 77) as an updateto proposed campus projects.Ý Theexhibits show that an environmental evaluation on all of the projects listedunder Attachment A at a non-project level was made.Ý More specific environmental review was reserved for the laterpermit application process.Ý This phasedenvironmental review process complied with the requirements of WAC197-11-060(5)(b).Ý As noted in WAC197-11-600(4)(a), agencies which act on the same proposal for whichenvironmental documents have already been prepared are not required to readoptsuch documents.Ý While Petitionersclaimed that the environmental review was ìdated,î they did not presentsufficient evidence that further and more current environmental review wasnecessary to comply with the Act.

Petitioners also failed to showthat the public participation noncompliance substantially interferes with thegoals of the Act.Ý No finding ofinvalidity is appropriate in this case.

Petitionersí other contentions withregard to essential public facilities requirements were dealt with in theAugust 31, 2000, dispositive motion order.

Parenthetically, we note that the planning process for the IMP has taken on a excruciating life of its own, dating back as far as 1974.Ý While we do not ascribe any ìevil motivesî to either the City or WWU in entering the MOA and not recognizing that it was a DR, we certainly encourage the parties to complete the IMP process with a greater vigor and a higher priority than has been shown thus far.Ý

We find that Bellingham hascomplied with SEPA requirements, but has not complied with GMA publicparticipation goals and requirements in the adoption of the March 31, 2000,MOA.Ý

IN ORDER TO COMPLY with the Act, the City must provide a public participation process for adoption of the MOA within 120 days of the date of this order.

Findingsof Fact pursuant to RCW 36.70A.270(6) are adopted and attached as Appendix Iand incorporated herein by reference.

Thisis a Final Order under RCW 36.70A.300(5) for purposes of appeal.

Pursuantto WAC 242-02-832(1), a motion for reconsideration may be filed within ten daysof issuance of this final decision.Ý

So ORDERED this 26^th day of October,2000.

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Findings of Fact

AppendixÝ I

1. On September 19, 1998, the City of Bellingham approved the WWU Neighborhood Plan (Ex. 488).Ý The Plan involved a series of recommendations and recognized that an IMP was required but would take some period of time to complete.Ý
2. The Plan specifically authorized use of an MOA for ìcampus developmentî until completion and approval of an IMP.
3. The first MOA (Ex. 474) was entered into between Bellingham and WWU on March 27, 1998 prior to adoption of the Plan (Ex. 488).Ý The MOA expired 18 months thereafter.
4. A second MOA (Ex. 237) was executed March 31, 2000.Ý
5. Prior to execution of Ex. 237, Bellingham sent a notice of a worksession to the public and particularly to Petitioners.Ý A worksession does not provide for public comments.
6. Ex. 237 provides for use and exclusions of various sections of BMC Chapter 20.Ý The agreement also provides that WWU and Bellingham will negotiate (without public involvement) as to which projects become significant or nonsignificant.
7. The MOA implements the WWU Plan through a variety of zoning code uses and exemptions, both as to location on the WWU campus and the type of development proposed.
8. Ex. 237 constitutes a DR under the definition contained in RCW 36.70A.030(7).Ý
9. The intent of the parties in executing the MOA is not relevant to determining whether it is a DR.
10. The MOA was adopted without compliance with GMA goals and requirements for public participation.
11. The MOA was adopted in compliance with SEPA requirements.
12. Petitioners have not sustained their burden of showing substantial interference with the goals of the Act.