Just in from the Washington State Court of Appeals, Division One:
When is an ordinance void, and a subsequent ordinance invalid?
The Growth Management Act (GMA), chapter 36.70A RCW, empowers the Boards with the authority to invalidate a jurisdiction's comprehensive plan or development regulations under particular circumstances.
The appellants herein contend that a Board is required to invalidate an ordinance whenever that Board finds that the challenged ordinance was adopted in violation of the State Environmental Policy Act (SEPA), chapter 43.21C RCW.
We disagree. Because the Boards' power to fashion a remedy is strictly constrained by the GMA and the GMA does not provide that the Boards are required, as a matter of law, to invalidate such ordinances, the appellants' contention fails. Accordingly, we affirm the decision of the Central Puget Sound Growth Management Hearings Board.
Touchstone Corporation and Touchstone KPP Development, LLC (collectively Touchstone) own an 11.5 acre site in downtown Kirkland known as Kirkland Parkplace. In April 2007, Touchstone and two other landowners applied to the city of Kirkland (City) to amend the City's comprehensive plan and zoning code to allow taller building heights, among other changes. The City then sponsored a proposal to adopt an ordinance establishing the area containing the three properties as a planned action area.
The City conducted a review of the environmental impacts of the proposed amendments and enactments. In April 2008, the City issued a draft environmental impact statement (EIS) that evaluated only the proposed action and a "no action" scenario; it did not evaluate any alternative actions. In October 2008, the City issued the final EIS. The final EIS contained one additional alternative, which was merely a slightly modified version of the proposed action.
The City then enacted several ordinances implementing the landowners' and the City's proposals. The City amended its comprehensive plan through Ordinance No. 4170. The City amended its zoning code through Ordinance No. 4171. The City also enacted Ordinance No. 4173 and Ordinance No. 4174 in order to amend other portions of the comprehensive plan and the zoning code.
In addition, the City enacted Ordinance No. 4172, which adopted design review guidelines, and Ordinance No. 4175, which created a planned action area.
Davidson Serles & Associates and TR Continental Plaza Corp. (collectively Davidson), property owners with land neighboring Touchstone's Parkplace property to the southeast, each filed petitions for review with the Central Puget Sound Growth Management Hearings Board, challenging the enactment of the comprehensive plan and zoning code amendments contained within Ordinances No. 4170 and No. 4171. They did not challenge the validity of the other four ordinances before the Board. Their appeals were consolidated.
Touchstone was allowed to intervene in the action to defend the validity of the City's ordinances. No. 64751-2-I (linked with No. 64072-1-I)/4
Among other rulings, the Board determined that the final EIS was inadequate for failure to consider alternatives. The Board found that, as a result, the City was not in compliance with SEPA and remanded for the City to come into compliance. However, the Board determined that none of the goals of the GMA would be undermined were the ordinances to remain in effect. As a result of this determination, the Board did not invalidate the ordinances. Link to PDF of case
The City and Touchstone moved to dismiss this appeal on mootness grounds because the City has completed a supplemental EIS (SEIS) since the remand from the Board and the City has adopted new ordinances based on the SEIS. The new ordinance, Ordinance No. 4257, merely states that it "reaffirms City Council adoption of Ordinance No. 4170 and Ordinance No. 4171." The new ordinance does not purport to supersede, supplant, amend, modify, or reenact the initial ordinances.
"A case is moot if a court can no longer provide effective relief." Orwick v. City of Seattle, 103 Wn.2d 249, 253, 692 P.2d 793 (1984).
"The general rule is that void ordinances cannot be amended and that an ordinance passed as an amendment to a previous ordinance, which never took effect, is invalid; a void ordinance cannot be vitalized by amendment, and re-enactment is necessary to validate that intended to be enacted by it. . . .
Without question, where an ordinance is void, a subsequent ordinance, that cannot be enforced of itself, and that purports to amend a single section of the prior ordinance, is invalid."
State ex rel. Weiks v. Town of Tumwater, 66 Wn.2d 33, 36-37, 400 P.2d 789 (1965) (emphasis omitted) (quoting 6 McQuillin, Municipal Corporations § 21.05, p. 183 (3rd ed.)).
Were we to grant Davidson's requested relief, the initial ordinances would be invalid. No. 64751-2-I (linked with No. 64072-1-I)/14
We concur:
Because the City's new ordinance merely reaffirms the initial ordinances, the new ordinance would also be invalid. See Weiks, 66 Wn.2d at 36-37. Thus, this appeal is not moot. The City and Touchstone also moved for us to take judicial notice of the City's draft SEIS, which was issued in order to comply with the Board's order on remand. It is unnecessary for us to take judicial notice of the SEIS in order to resolve the issues presented in this appeal.
Accordingly, we deny the motion.
Environmental protection is highly overrated anyway.
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