Two of Today's Opinions: Rural land use and DSHS
Gold Star Resorts v. Futurewise and Whatcom County, No. 80810-4. Pursuant to the Growth Management Act (GMA), Whatcom County adopted a "comprehensive plan" in 1997. Two months after the plan was adopted, the legislature amended the GMA to include "limited areas of more intensive rural development" (LAMIRDs). The County revised its plan seven years later as required by the GMA. On March 25, 2005, the anti-growth organization Futurewise commenced this litigation by appealing the County's plan and related ordinances to the Western Washington Growth Management Hearings Board.
Futurewise challenged that the plan violated the GMA by protecting the rights of certain rural private property owners to develop their land.
[Futurewise] argued that the County failed to update its comprehensive plan to bring it into conformity with the GMA's LAMIRD amendments in three ways: (1) the County adopted comprehensive plan policies that allow and encourage expansion of areas of more intensive growth in rural areas; (2) the plan contains descriptors for areas of more intensive rural development that do not comply with the GMA; and (3) the County established zoning designations ... that improperly apply beyond the logical boundaries of valid LAMIRDs.
Gold Star Resorts intervened because Futurewise's challenge might diminish Gold Star's property rights on a parcel Gold Star owns in Whatcom County adjacent to Interstate 5. The Hearings Board upheld five of the County's policies, but overturned a sixth because it allowed designating town boundaries "based on 'existing development'" in 2004 rather than being "restricted to the built environment as of July 1990." The 
Hearings Board also found that the County's criteria and analysis for determining the boundaries of LAMIRDs failed to satisfy the mandates of the GMA.
Gold Star petitioned for review and prevailed in superior court. The court determined that the Hearings Board had "improperly used a bright line rule of one residence per five acres" and that some of the issues had been litigated in a 1998 case. Futurewise appealed. The Court of Appeals overturned the lower court, holding that neither res judicata nor collateral estoppel applied and that the Hearings Board had not used an impermissible "bright line rule."
Today, the Supreme Court in an opinion by Justice Madsen unanimously reaffirms its earlier decision in Thurston County v. Western Washington Growth Management Hearings Board (2008).
First.... Futurewise could challenge the portions of the County's comprehensive plan affected by the GMA amendments pertaining to LAMIRDs but, contrary to Futurewise's argument, could not challenge any and all aspects of the plan alleged to be noncompliant with the GMA.
The second holding in Thurston County that applies here is that when differentiating between urban and rural densities, the Board cannot employ bright line rules. Thus, the Board improperly relied in this case on a "one residence per five acre" rule.
The Court remands the case to the Hearings Board to reconsider Futurewise's claims without applying a bright line rule. The Court also requires Whatcom County to update its rural development criteria based on the LAMIRD provisions of GMA and to revise its comprehensive plan. Congratulations to the Pacific Legal Foundation, which filed an amicus brief in this case against the Hearings Board's use of a bright line rule. (argument and briefs)
After the jump: Ducote v. DSHS, No. 81714-6.
Ducote v. DSHS, No. 81714-6. Kent Ducote was accused by his 14-year-old stepdaughter of sexual misconduct, resulting in an investigation by the Department of Social and Health Services (DSHS) and court orders preventing Ducote from access to his home and family. About six months later, the trial court determined that the accusations were not supported by the evidence and lifted the orders. Ducote sued DSHS for negligent investigation. The State answered that stepparents are not owed a duty of care under the statute and that such claims are "limited to children, parents, guardians, and custodians." The trial court granted summary judgment and the Court of Appeals affirmed.
Today, the Court notes that negligent investigation is not a common law cause of action, but one created by inference from RCW 26.44.050. Because the statute references specific categories of persons and does not include stepparents, the Court affirms the lower courts. Justice Mary Fairhurst wrote the opinion, joined by four other justices and by Justice Pro Tem. Karen Seinfeld. Justice Chambers, joined by Justices Sanders and Stephens, dissents. The Chief Justice did not participate. (argument and briefs)
