City Of Olympia, V. Wwgmhb, Olympians For Smart Development

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CITY OF OLYMPIA, No. 85048-2-I

Respondent, DIVISION ONE

v. PUBLISHED OPINION

WESTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD, a State Agency, and OLYMPIANS FOR SMART DEVELOPMENT & LIVABLE NEIGHBORHOODS,

Appellants.

FELDMAN, J. — The Olympians for Smart Development and Livable

Neighborhoods (OSDLN) appeal from a superior court order reversing a Western

Washington Growth Management Hearings Board (Board) order invalidating a

city ordinance that increased the permitted types of housing in residential

districts. While the matter was pending before the Board, the Washington

legislature enacted RCW 36.70A.600(3) and (4), which preclude administrative

and judicial review of certain actions taken by a city to increase its residential

building capacity. The City of Olympia (City) moved to dismiss the administrative

appeal pursuant to RCW 36.70A.600(3) and (4), and the Board denied its motion.

Because the Board erred in denying the motion, we reverse.

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FACTS

The City passed Ordinance 7160 (the Ordinance), also known as the

“Missing Middle Housing Proposal,” on November 13, 2018. The Ordinance

amended numerous sections of the Olympia Municipal Code related to permitted

types of housing. The City Council’s findings state that one of the Ordinance’s

purposes is “to implement [the] policy direction in the City of Olympia[‘s]

Comprehensive Plan to adopt zoning that allows a wide variety of housing types

and densities so that housing can be available in a broad range of costs.”

Before it passed the Ordinance, the City prepared an environmental

checklist to comply with the State Environmental Policy Act (SEPA). The City

determined that the Ordinance would not have a significant impact on the

environment and issued a determination of non-significance (DNS). Members of

OSDLN submitted comments on the Ordinance expressing concerns about its

environmental impacts and subsequently filed an administrative appeal

challenging the DNS. The hearings examiner dismissed the administrative

appeal, reasoning that OSDLN did not meet the requirements to have standing

under SEPA.

On January 11, 2019, OSDLN petitioned for review of the hearing

examiner’s decision before the Board. While that administrative appeal was

pending, the Washington legislature enacted RCW 36.70A.600(3) and (4), which,

as noted previously, preclude administrative and judicial review of certain actions

taken by a city to increase its residential building capacity. LAWS OF 2019, ch.

348, § 1 (SHB 1923). The City promptly moved to dismiss the administrative

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appeal based on this enactment. The Board denied the City’s motion as well as

its renewed motion to dismiss the proceeding, reasoning that “it is not clear that

[SHB] 1923 was intended to apply to this pending case. . . . The Legislature did

not clearly express an intent to apply [SHB] 1923 retroactively.”

On September 10, 2019, the City filed a petition for review in Thurston

County Superior Court. Relevant here, the trial court ruled that the Board erred

in denying the City’s motion and renewed motion to dismiss. OSDLN appeals.

We agree with the superior court and hold that the Board should have dismissed

OSDLN’s administrative appeal under RCW 36.70A.600(3) and (4).

ANALYSIS

The Administrative Procedure Act, RCW 34.05, governs our review in this

matter and requires that we review the decision of the Board in the same manner

as did the superior court. King County v. Cent. Puget Sound Growth Mgmt.

Hr’gs Bd., 142 Wn.2d 543, 553, 14 P.3d 133 (2000). We review the Board’s

legal conclusions de novo. Id.

RCW 34.05.570(3)(b) states that “[t]he court shall grant relief from an

agency order in an adjudicative proceeding . . . if it determines that . . . [t]he order

is outside the statutory authority or jurisdiction of the agency . . . .” The City

argues, as it did before the Board and superior court, that the Board order is

outside the statutory authority or jurisdiction of the agency under RCW

36.70A.600, which was enacted during the pendency of the administrative

proceedings. In relevant part, RCW 36.70A.600(3) and (4) provide as follows:

(3) The adoption of ordinances, development regulations and amendments to regulations, and other nonproject actions taken

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by a city to implement the actions specified in subsection (1) of this section, with the exception of the action specified in subsection (1)(f) of this section, are not subject to administrative or judicial appeal under chapter 43.21C RCW.

(4) Any action taken by a city prior to April 1, 2023, to amend its comprehensive plan or adopt or amend ordinances or development regulations, solely to enact provisions under subsection (1) of this section is not subject to legal challenge under this chapter.

The statutory language is clear. If RCW 36.70A.600(3) and (4) apply here, then

the Ordinance is “not subject to” administrative appeal or legal challenge under

SEPA or the Growth Management Act (GMA), and the Board should have

dismissed OSDLN’s administrative appeal without reaching the merits of its

substantive arguments.

The question of whether RCW 36.70A.600(3) and (4) apply to the

Ordinance is controlled by Washington Education Association v. Washington

State Department of Retirement Systems, 21 Wn. App. 2d736, 743-44, 507 P.3d

1 (2022), which holds that a newly enacted statute generally applies to all cases

pending on direct appeal that are not yet final. Further, Fischer Studio Building

Condominium Owners Association v. City of Seattle, __ Wn. App. 2d __, 524

P.3d 708, 712 (2023), holds that a cause of action is extinguished where, as

here, it is abolished prior to a final decision on appeal. Based on these and other

similar authorities, the Board erred in concluding that RCW 36.70A.600(3) and

(4) do not apply to the Ordinance. For the same reasons, subsequent

amendments to RCW 36.70A.600 also apply to the Ordinance because the

petition is still pending on appeal. LAWS OF 2020, ch. 173, § 1 (SHB 2343

(2020)); LAWS OF 2022, ch. 246, § 1 (SSB 5818 (2022)).

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Having concluded that RCW 36.70A.600(3) and (4) apply to this

proceeding, we must next decide whether the specific requirements set out in

these provisions are satisfied. The first requirement is that the Ordinance must

have been adopted by April 1, 2023. RCW 36.70A.600(3), (4). This requirement

is plainly satisfied, as the City passed the Ordinance on November 13, 2018, well

before the April 1, 2023 deadline specified in the statute.

The second requirement is that the Ordinance must have been adopted to

implement actions or enact provisions specified in RCW 36.70A.600(1). RCW

36.70A.600(3), (4). This requirement is also satisfied. As noted, the City

Council’s findings state that one of the Ordinance’s purposes is “to implement

[the] policy direction in the City of Olympia[’s] Comprehensive Plan to adopt

zoning that allows a wide variety of housing types and densities so that housing

can be available in a broad range of costs.” By way of example, the Ordinance

permits triplexes, fourplexes, and courtyard apartments where they were

previously not permitted. These types of provisions fall within RCW

36.70A.600(1)(c) and (d):

(1) A city planning pursuant to RCW 36.70A.040 is encouraged to take the following actions in order to increase its residential building capacity: .... (c) Authorize at least one duplex, triplex, quadplex, sixplex, stacked flat, townhouse, or courtyard apartment on each parcel in one or more zoning districts that permit single-family residences unless a city documents a specific infrastructure of physical constraint that would make this requirement unfeasible for a particular parcel;

(d) Authorize a duplex, triplex, quadplex, sixplex, stacked flat, townhouse, or courtyard apartment on one or more parcels for which they are not currently authorized[.]

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Because the Ordinance promotes residential density through the approved

means listed under RCW 36.70A.600(1) and otherwise implements actions or

enacts provisions specified in RCW 36.70A.600(1), RCW 36.70A.600(3) and (4)

apply here. The Ordinance is therefore “not subject to” administrative or judicial

review under SEPA or the GMA. RCW 36.70A.600(3), (4).

While RCW 36.70A.600(3) and (4) have not been interpreted or applied in

a published appellate court opinion, the Central Puget Sound Growth

Management Hearings Board’s decision in Hendrickson v. City of Kenmore, No.

23-3-0001 (Wash. Growth Mgmt. Hr’gs Bd. Apr. 4, 2023) (Hendrickson), is

instructive here. See Timberlake Christian Fellowship v. King County, 114 Wn.

App. 174, 184 n.3, 61 P.3d 332 (2002) (“Although administrative decisions are

not binding on this court, we find guidance in their interpretations of the law,

especially where, as here, the decision is made by the body primarily charged

with interpreting a given statute.”). In that case, the City of Kenmore passed

Ordinance 22-0558 to make changes to its comprehensive plan affecting land

use and housing. Hendrickson at 1. The Board, on its own motion, ruled that

because the ordinance’s purpose was to adopt provisions solely within the list of

protected provisions under RCW 36.70A.600(1), the petitioner lost its ability to

bring an administrative appeal under SEPA (RCW 36.70A.600(3)) and the GMA

(RCW 36.70A.600(4)). Id. at 6.

The same reasoning and result apply here as well. As in Hendrickson, a

city is attempting to increase the types of housing available in its residential

districts, and OSDLN is challenging it under SEPA and the GMA. But because

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our legislature has adopted laws that preclude such challenges in order to

encourage an increase in the type of permitted housing in residential districts,

OSDLN’s challenges must be dismissed. Just as the Board dismissed the

administrative appeal in Hendrickson, so too should the Board have done so

here.

In response to these arguments, OSDLN argues, and the Board ruled, that

RCW 36.70A.600(3) and (4) do not apply to Ordinance 7160 because there is no

clear legislative intent for the law to apply retroactively. As previously addressed,

a newly enacted statute generally applies to all cases pending on direct appeal

that are not yet final. Wash. Educ. Ass’n, 21 Wn. App. 2d at 744-45. And a

cause of action is extinguished where, as here, it is abolished prior to a final

decision on appeal. Fischer Studio Bldg. Condo. Owners Ass’n, 524 P.3d at 712.

OSDLN’s non-retroactivity argument thus fails.

Next, OSDLN argues that even if RCW 36.70A.600(3) and (4) apply to the

Ordinance, the Ordinance’s amendments to the municipal code fall outside of the

scope of the protected actions listed in RCW 36.70A.600(1). We disagree:

• • OSDLN points to provisions in the Ordinance that authorize single

room occupancies. Single room occupancies are encompassed in

RCW 36.70A.600(1)(v), which states: “Update use matrices and

allowable use tables that eliminate conditional use permits and

administrative conditional use permits for all housing types, including

single-family homes, townhomes, multifamily housing, low-income

housing, and senior housing . . . .”

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• • OSDLN also points to provisions in the Ordinance that increase the

allowed density for triplex, quadplex, and courtyard apartments in small

lots. These are encompassed in RCW 36.70A.600(1)(d), which states:

“Authorize a duplex, triplex, quadplex, sixplex, stacked flat, townhouse,

or courtyard apartment on one or more parcels for which they are not

currently authorized . . . . ”

• • Next, OSDLN points to provisions increasing the density limits of

cottage housing. These provisions are encompassed by RCW

36.70A.600(1)(l), which states: “Authorize a minimum net density of

six dwelling units per acre in all residential zones, where the residential

development capacity will increase within the city….”

• • Lastly, OSDLN points to provisions in the Ordinance that maintain

minimum density limits in residential zones. Because OSDLN did not

challenge these provisions in the administrative proceeding, we decline

to consider them here. See Alpha Kappa Lambda Fraternity v. Wash.

State Univ., 152 Wn. App. 401, 420, 216 P.3d 451 (2009) (“‘[i]ssues

not raised before the agency may not be raised on appeal,’” quoting

RCW 34.05.554(1)). Additionally, OSDLN has not cited any authority,

nor are we aware of any, that would permit a legal challenge to an

ordinance that merely maintains the status quo. Donner v. Blue, 187

Wn. App. 51, 61, 347 P.3d 881 (2015) (“Where no authorities are cited

in support of a proposition, the court is not required to search out

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authorities, but may assume that counsel, after diligent search, has

found none.” (Internal quotation marks omitted)).

Thus, contrary to OSDLN’s arguments, the Ordinance is exempted from legal

challenges and administrative and judicial review under both SEPA (RCW

36.70A.600(3)) and the GMA (RCW 36.70A.600(4)).

Our analysis is also consistent with the legislative intent of RCW

36.70A.600. State v. Hughes, 166 Wn.2d 675, 684, 212 P.3d 558 (2009)

(“Legislative intent may be determined by legislative history, the structure of the

statutes, their purpose, or other sources.”). When looking at the recent

amendments to the GMA (SHB 1923 (2019), SHB 2343 (2020), and SSB 5181

(2022)), our legislature’s intent is clear. It has decided to shield ordinances that

increase residential building capacity and has continued to add actions to RCW

36.70A.600(1) to establish additional actions that are not subject to legal

challenge or administrative appeals. The Ordinance increases residential

building capacity and is therefore protected by both the plain language and

purpose of RCW 36.70A.600.

Lastly, OSDLN argues that because the City did not assign error to the

Board’s findings that the Ordinance violated the GMA, those findings are verities

on appeal. OSDLN’s argument ignores the legal and practical significance of

RCW 36.70A.600(3) and (4). Because the Ordinance is “not subject to”

administrative appeal or legal challenge under SEPA or the GMA (as RCW

36.70A.600(3)-(4) provide), the Board was required to dismiss OSDLN’s

administrative appeal without reaching the merits of its substantive arguments

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and without making any findings. As such, the Board’s findings must be set

aside even though, as OSDLN argues, they were not challenged by the City.

We reverse the Board’s order denying the City’s motion to dismiss

OSDLN’s petition for review and, accordingly, affirm the trial court’s Order on

Judicial Review. We remand the matter to the Board to dismiss OSDLN’s

petition for review.

WE CONCUR:

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