                                               FILED
                                            April 12, 2016
                                    In the Office of the Clerk of Court
                                   WA State Court of Appeals, Division III




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                         DIVISION THREE

CITY OF AIRWAY HEIGHTS,        )      No. 33083-4-111
                               )
              Respondent,      )
                               )
         v.                    )
                               )
EASTERN WASHINGTON GROWTH      )
MANAGEMENTHEARINGSBOARD,       )
                               )
              Defendant,       )
                               )
SPOKANE COUNTY, CITY OF        )      PUBLISHED OPINION
SPOKANE, SPOKANE AIRPORT       )
BOARD,                         )
                               )
              Appellants,      )
                               )
BRIGITTA ARCHER,               )
                               )
              Respondent.      )
                               )
                               )
BRIGITTA ARCHER,               )
                               )
              Respondent,      )
                               )
         v.                    )
                               )
No. 33083-4-111
City ofAirway Heights v. E. Wash. Growth Mgmt. Hr'gs Bd.


EASTERN WASHINGTON GROWTH                     )
MANAGEMENTHEARINGSBOARD,                      )
                                              )
                     Defendant.               )
                                              )
SPOKANE COUNTY, CITY OF                       )
SPOKANE, SPOKANE AIRPORT                      )
BOARD, and CITY OF AIRWAY                     )
HEIGHTS,                                      )
                                              )
                     Appellants.              )

       LAWRENCE-BERREY, A.CJ. -        Incompatible residential and commercial

development around a military installation can jeopardize the installation's mission and,

in tum, jeopardize the economies of nearby communities. Washington State's Growth

Management Act (GMA), chapter 36.70A RCW, addresses this problem by prohibiting

"development in the vicinity of a military installation that is incompatible with the

installation's ability to carry out its mission requirements." RCW 36.70A.530(3).

       Here, the city of Airway Heights (City) adopted Ordinances Nos. C-797 and C-798

to provide a conditional use process for multi-family residential development in the

vicinity of Fairchild Air Force Base (FAFB) and the Spokane International Airport (SIA).

The Eastern Washington Growth Management Hearing Board (GMHB or the Board)

invalidated the ordinances under RCW 36.70A.530(3), as well as other provisions of the

GMA. The Spokane County Superior Court reversed the GMHB.



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City ofAirway Heights v. E. Wash. Growth Mgmt. Hr 'gs Bd.


       We hold that the GMHB did not err in balancing the deference owed to the City's

ordinances against the evidentiary weight it gave to the opinions of persons and agencies

with expertise and with the nonbinding recommendations made in the Fairchild Air Force

Base Joint Land Use Study (JLUS). We affirm the conclusion of the GMHB that the

ordinances violate the GMA by allowing development that is incompatible with FAFB's

ability to carry out its current or future missions in violation ofRCW 36.70A.530.

However, we reverse the conclusions of the GMHB that the ordinances ( 1) fail to

discourage siting or expansion of incompatible uses adjacent to the SIA in violation of

RCW 36.70.547, and (2) preclude the siting or expansion ofFAFB or the SIA in violation

ofRCW 36.70A.200. Because we affirm one of the three bases on which the GMHB

invalidated the challenged ordinances, we affirm the result of GMHB' s decision and

order invalidating the City's ordinances.

                                            FACTS

       1. The Challenged Ordinances

       On August 5, 2013, in response to a housing deficiency, the City Council of

Airway Heights adopted Ordinance Numbers C-797 and C-798 (the ordinances). These

ordinances amended the City's zoning regulations and maps, redesignated approximately

29 acres of commercial property in the vicinity of F AFB and the SIA as multi-family



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residential, and authorized the City's hearing examiner to conditionally approve multi-

family residential development. The conditional approval was subject to (1) an

evaluation to demonstrate a community need for residential use, (2) a noise study

demonstrating that 69 day-night average sound level (Ldn) was not exceeded over a

prescribed period of time, (3) outdoor noise abatement of at least 25 decibels (dB) with

additional consideration for peak noise or vibrations, (4) density not to exceed 10 to 20

units per acre, (5) residential units to be located furthest from the operational

flight path, ( 6) the owner to sign an aviation easement waiving liability for noise, and

(7) development conditions, including consideration of comments from F AFB.

       2. Background Prior to the Ordinances

       The Deer Creek Apartment development lies within the boundaries of the property

involved in this case. The Deer Creek project originally contemplated 280 residential

units built in two phases. Deer Creek Developers, LLC v. Spokane County, 157 Wn. App.

1, 5, 236 P.3d 906 (2010). Phase I of Deer Creek was permitted due to an error in the

County's zoning code that was corrected before the developer applied for Phase IL

       In 2008, Deer Creek submitted an application to develop Phase II. Phase II

involved 124 multi-family units on about 5 acres. The hearing examiner received

opposition to Deer Creek's application from several agencies. The United States



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Department of the Air Force at FAFB opposed construction of the additional apartments

based on potential changes in noise contour lines:

      Based on the 1995 Fairchild AFB Air Installation Compatible Use Zone
      (AICUZ) Study, the subject property is located in the 65-70 Ldn Noise
      Zone. Based on Fairchild's 2007 AICUZ study, the property is now outside
      the 65 Ldn line. This demonstrates that noise zones expand and contract as
      the mission changes at Fairchild AFB. Unfortunately, we cannot predict
      Fairchild's future noise zones; however, we do know that the subject
      property will be susceptible to aircraft noise for the foreseeable future.

Admin. Record (AR) at 370.

      The SIA's concerns went beyond noise abatement, objecting that the project would

adversely impact the layout and length of its proposed third runway:

      The project currently under consideration is an expansion of a
      nonconforming use which is located within the airport area of influence and
      would serve to further jeopardize current and future airport operations ....
      further jeopardize because the existing 120 units have already been allowed
      to be built and will impact on the proposed runway layout, length, and
      orientation).

      [The development] is within 2500 feet of the end of the proposed runway.
      The implications for potential challenges and long-term effects are obvious.
      Therefore, the Spokane Airport Board respectfully requests that the hearing
      examiner consider the impact to the airport and not allow the expansion or
      continuation of this or any other nonconforming use in the airport influence
      area.

AR at 372.




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City ofAirway Heights v. E. Wash. Growth Mgmt. Hr 'gs Bd.


       The Federal Aviation Agency (FAA) considered the proposed apartment complex

an incompatible land use because it was "located within the 'area of influence' of two

major airports, and located in a potential cumulative noise impact area." AR at 372. It

explained that the proposed development could be exposed to significant numbers of

aircraft flying at low altitudes, which would subject the area to significant noise impacts.

The FAA also expressed concern regarding the proportionately higher percentage of

accidents that occur in aircraft traffic pattern areas, considering the volume of aircraft that

use the concentrated areas of airport approach areas, together with the complexities of

takeoff and landings. It also noted that residents in such areas often experience safety

concerns from visual observations of low-flying aircraft operating into and out of the

airport. It stated, "it would be disconcerting to many people on the ground in this area ...

due to a perceived hazard of low-flying aircraft." AR at 374. The FAA emphasized that

such visual perceptions, and related complaints, are one of the main reasons that large-

scale residential developments are strongly discouraged in airport areas of influence.

       The FAA emphasized that safety is its first priority, but that another significant

priority is protecting the public investment in airports through compatible land use,

planning and zoning. The FAA noted that it had long supported the airport as an

important aviation facility and that it had funded much of the development of the airport


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City ofAirway Heights v. E. Wash. Growth Mgmt. Hr 'gs Bd.


over the years, at a cost exceeding $94 million. It stated it depends on local authorities to

protect the airport from encroachment by incompatible land uses.

       The FAA observed that current aircraft operations for the airport and F AFB have

been acceptable over the largely vacant land in the area, but that this was being

jeopardized by the high density residential development approved south of the site, as

well as the proposed multi-family project. It advised that it requires airport owners and

the city of Spokane and Spokane County to ensure compatibility between the airport and

surrounding land uses. It summarized its concerns: "Permitting high density residential

uses weakens existing protection for the airport, the flying public, and the future residents

by allowing incompatible development and potential hazards closer to the critical phases

of aircraft approach and departure operations." AR at 374.

       Greater Spokane, Incorporated, which combines both the Spokane Chamber of

Commerce and the Spokane Economic Development Council, also opposed the

development. It noted that the SIA and F AFB are critical assets for the economic growth

of our region, that F AFB is the largest employer in the region and has an economic

impact in the community approaching $1 billion. It maintained that the SIA may be the

single most important asset for continued economic growth in the region. It continued:




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City ofAirway Heights v. E. Wash. Growth Mgmt. Hr'gs Bd.


       We have seen too many examples of where the Air Force has curtailed
       flying operations at other bases simply due to volume of noise complaints
       from the community. For that reason, encroachment of residential
       development around flying operations is viewed by base closure and
       realignment commissions as a principal factor when considering closure of
       a facility.

       We believe that allowing this incompatible use to proceed will create a
       precedent that will significantly complicate future actions to prevent
       encroachment. Fairchild Air Force Base and Spokane International Airport
       are simply too important to allow them to be "boxed in."

AR at 376.

       A hearing examiner denied the application for the residential apartment project,

concluding that the development, even as conditioned with sound attenuation, "would

weaken existing protection for the airport and Fairchild AFB, the flying public and future

residents, by allowing incompatible development and potential hazards closer to the

critical phases of aircraft approach and departure operations; and would jeopardize the

future viability of such facilities." AR at 332.

       Deer Creek appealed the hearing examiner's denial of the conditional use permit.

The superior court affirmed the decision of the hearing examiner. Deer Creek, 157 Wn.

App. at 6. This court affirmed the superior court, stating:

              The unchallenged facts establish that the Deer Creek site will be
       subject to airport noise for the foreseeable future and that the noise impact
       zones for FAFB expand and contract as the mission ofFAFB changes.
       Findings of fact also establish that a multifamily development on the Deer

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No. 33083-4-III
City ofAirway Heights v. E. Wash. Growth Mgmt. Hr 'gs Bd.


       Creek site would adversely impact the layout, length, and orientation of a
       proposed runway for SIA and will jeopardize current and future SIA
       operations.

Id. at 17.

       3. The 2009 Fairchild Air Force Base Joint Land Use Study (JLUS)

       While the Deer Creek case was making its way through the courts, entities

including Airway Heights, F AFB, the SIA, and the City and County of Spokane

participated in the JLUS. The study was a voluntary collaborative planning effort

involving "local communities, federal officials, residents, business owners, and the

military to identify compatible land uses and growth management guidelines near active

military installations." AR at 378. Its purpose was to provide a mechanism for F AFB

and local governments to work as a team to prevent incompatible land uses. Its goals

included: ( 1) managing development in the vicinity of F AFB that would interfere with the

continued operations of F AFB, (2) maintaining the economic vitality of the community,

(3) ensuring the ability of F AFB to achieve its mission, and (4) preserving the ability of

FAFB to expand or adapt its missions to changing conditions. It stated: "[t]he goal of the

Fairchild JLUS is to protect the viability of the current and future missions at Fairchild

AFB while at the same time accommodating growth, sustaining the economic health of

the region, and protecting the public health and safety." AR at 417.



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City ofAirway Heights   v.   E. Wash. Growth Mgmt. Hr'gs Bd.


       The JLUS stated that urban development in the vicinity of military installations can

negatively impact military activities and readiness and that "[t]his threat to military

readiness ac.tivities is currently one of the military's greatest concerns." AR at 416. It

emphasized that its purpose was to be a planning guide, not a regulatory document:

       This section provides a general technical background on the factors
       discussed based on available information. The intent is to provide an
       adequate context for awareness, education, and development of JLUS
       recommendations. As such, it is not designed or intended to be utilized as
       an exhaustive technical evaluation of existing or future conditions within
       the study area.

AR at 462.

       The JLUS identified the Deer Creek development as particularly

concerning, designating high density residential housing a critical threat to F AFB' s

mission, stating"[ d]evelopment within Fairchild's critical operations area will

limit the ability of the installation to adapt to new missions, to support

new/different aircraft, and could jeopardize its long-term viability." AR at 474.

The JLUS noted that even though the Deer Creek development was currently

outside the 65 Ldn noise contour, safety, noise, and light pollution remained

concerns.

       Emphasizing that aircraft noise is a primary concern in compatibility

planning, the JLUS devoted a substantial portion of its evaluation to the noise

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City ofAirway Heights v. E. Wash. Growth Mgmt. Hr'gs Bd.


impacts of military airfields. It utilized a technical noise study to assess current

and future conditions, evaluated four future mission scenarios, and assumed a third

SIA runway oriented parallel to the FAFB runway. The results of these scenarios

were combined with 20-year forecast modeling results for the SIA to provide an

overall perspective on the effect of all aircraft operations within the region.

       The study also relied on the 2007 Fairchild Air Installation Compatible Use

Zone (AICUZ) study, which is a Department of Defense (DOD) planning program

that was developed in response to incompatible urban development and land use

conflicts around military airfields. The AICUZ provided detailed noise modeling

of current aircraft operations at the installation. However, the JLUS cautioned

against undue reliance on the AICUZ noise contours because AICUZ contours are

based only on current conditions and do not account for changes in installation

operations.

       The JLUS also established four categories of military influence areas

(MIA), which it defined as "designated geographic planning area[s] where military

operations may impact local communities, and conversely, where local activities

may affect the military's ability to carry out its mission." AR at 592. The four

MIAs were designated in part to establish compatibility requirements within the


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City ofAirway Heights v. E. Wash. Growth Mgmt. Hr 'gs Bd.


designated MIAs. MIAs 3 and 4 are at issue in this case. MIA 3 is described as an

"area that is defined by a Yi mile area around the 65 Ldn contour for the potential

mission scenario, which is based on a mix of next generation air refueling aircraft

and B-5 2 aircraft." AR at 601. Strategies applied to MIA 3 focus on noise

attenuation. MIA 4 designates an area of greater concern. MIA 4 is defined as

"having a potential for noise and safety impacts to which land use controls are

appropriate." AR at 595. The JLUS provided that within MIA 4, "[l]and currently

designated for non-residential use shall not be redesignated to a residential use

category." AR at 641. A JLUS map shows that the property is within MIA 4.

Prior to Airway Heights' annexation of the property and adoption of the

ordinances, the property was designated for commercial uses. Therefore, under the

JLUS, the property was prohibited from being redesignated to a residential

category.

       4. Annexation of the Property and Inter local Agreement

      After the hearing examiner denied Deer Creek's conditional use permit, the City

moved forward to annex the property. These efforts prompted negotiations between

Airway Heights, Spokane County, and the city of Spokane. During this process, the

parties entered into an interlocal annexation agreement to ensure protection of FAFB and



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City ofAirway Heights v. E. Wash. Growth Mgmt. Hr'gs Bd.


the SIA. In the December 3, 2009 annexation agreement, the parties agreed that the SIA

and FAFB are essential public facilities and that the JLUS provided a sound tool for

determining whether development was compatible with FAFB and the SIA. The

agreement provided that the parties should discourage development that is incompatible

with FAFB' s operational needs and ability to carry out future missions.

      The agreement defined "incompatible development" as ''permitted land uses that

are inconsistent with the Fairchild Air Force Base Joint Land Use Study ("JLUS''),

[Washington State Department of Transportation (WSDOT)] Aviation Division

Regulations, FAA Regulations, state statutes or regulations." AR at 3 52 (emphasis

added). The City's annexation of the property occurred on January 1, 2012.

      The city of Spokane, Spokane County, Airway Heights, Medical Lake and FAFB

subsequently formed a partnership to draft policies and regulations to implement the

strategies recommended in the JLUS. The parties formed a coordinating committee and

established a technical assistance group. These groups were responsible for reviewing

draft comprehensive plan amendments and development and code regulations to ensure

compliance with the JLUS. With this interim process in place, the coordinating

committee proceeded to evaluate the means through whichjurisdictions could implement

the JLUS recommendations.


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No. 33083-4-III
City ofAirway Heights v. E. Wash. Growth Mgmt. Hr 'gs Bd.


      After annexation of the property, Airway Heights began considering amendments

to its mixed use regulations to allow development of Phase II of the Deer Creek

apartments as well as high density multi-family residential housing on all of the property.

During December 2011, due to concerns that the proposed regulations would threaten

F AFB operations and conflict with the regulations being developed to implement the

JLUS, Airway Heights implemented a moratorium on applications for conditionally

approved residential units on commercially zoned properties.

       In March 2012, the City's planning commission began considering a conditional

use permit process to allow for residential development in certain commercial zones.

Derrick Braaten, the City's planner, explained that Airway Heights Municipal Code

(AHMC) 17.37 needed to be updated due to it being too broad and lacking in design

standards such as sound attenuation. He stated there was a severe deficiency in multi-

family housing in the area and that the amendments allowed for expansion of potential

housing options, particularly multi-family developments. He stated that any proposed

multi-family developments in commercial areas would be highly regulated and would

require sound attenuation in the 65-69 Ldn sound contours.

      In response, the city of Spokane advised Mr. Braaten that it opposed Airway

Heights' unilateral proposal to allow new residential development within MIA 4, stating



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City ofAirway Heights v. E. Wash. Growth Mgmt. Hr 'gs Bd.


such development would impair F AFB' s ability to carry out its mission requirements and

would jeopardize F AFB' s competitiveness in future base closure rounds. It noted that the

JLUS and state and federal laws discourage locating new residential development of any

kind in areas of high noise impact. It warned that "[a]llowing new residential uses, even

as part of a mixed use development, in the 65 Ldn noise contour for Fairchild and MIA 4,

as identified by JLUS, is not appropriate and will give false expectations if the mixed-use

overlay zone covers areas within the 65 Ldn noise contour." AR at 691.

      Spokane County also objected to the proposed amendments. The county

commissioners found the amendments in violation of the JLUS, which had recommended

against expanding residential uses in the MIA 4, and the implementation policies

developed by the JLUS steering committee at its March 8, 2012 meeting. In a letter to

Mr. Braaten, they stated: "The draft policies and regulations recognized by the JLUS

Implementation Steering Committee combined MIA 3 and MIA 4 into MIA 3/4 in the

draft Fairchild Air Force Base Overlay Zone .... As a part of the regional collaborative

process Mayor Patrick Rushing and you were in attendance at the meeting at the point

that specific recommendation was both debated and agreed upon in what is now referred

to as the Draft Document." AR at 698. In response to Mr. Braaten's argument that the

AICUZ standards provide adequate protections, the commissioners argued that the



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City ofAirway 'Heights v. E. Wash. Growth Mgmt. Hr 'gs Bd.


standards provide only minimal protections for FAFB's national security mission:

       The adoption of substantive protections in JLUS Overlay Zoning
       Regulations by all relevant jurisdictions is of equal or perhaps greater
       importance in securing the siting for the KC 135 replacement tanker and
       averting a closure during the upcoming 2013 and 2015 BRAC [Base
       Realignment and Closure Commission] processes. Clearly, allowing for
       more intense and specifically residential development within 65 Ldn
       contour and underneath identified training flight patterns for F AFB is
       inconsistent with the region's commitment to protecting FAFB from
       closure.

AR at 699.

       5. County and Municipality Implementation of the JLUS

       Meanwhile, Spokane County initiated an amendment to its zoning code to

implement the JLUS in the county. At the public hearing, Airway Heights opposed a

proposal to combine MIA 3 and 4, arguing that both the DOD AICUZ and the JLUS only

required noise abatement in the MIA 3, not the broader restrictions associated with MIA

4. Mr. Braaten disagreed with the land use restrictions in the 65 Ldn contours, pointing

out that the DOD AICUZ and the JLUS state that prohibitive land use restrictions should

not occur until the 70 Ldn. He argued that residential development within the 65 Ldn

could be compatible with appropriate sound mitigation. He argued that extending MIA 4

to MIA 3 is arbitrary and unfairly burdens landowners with unnecessary restrictions that

offer little benefit to F AFB because the area is outside of any actual encroachment area.



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City ofAirway Heights v. E. Wash. Growth Mgmt. Hr 'gs Bd.


       Spokane County's resolution ultimately prohibited new residential zones in the

MIA 3/4, providing: "Urban residential uses are acceptable in MIA 3/4 provided that the

underlying zone adopted prior to adoption date of this chapter is a residential zone."

AR at 794.

       In a substantially similar regulation, the city of Spokane added a chapter to its

municipal code to implement the JLUS. Its ordinance stated: "It is the purpose of this

chapter to prevent incompatible land uses in the vicinity of Fairchild Air Force Base

(Fairchild AFB) consistent with the recommendations of the Fairchild AFB 2009 Joint

Land Use Study, Air Installation Compatible Use Zone Study (AICUZ)." AR at 726.

The ordinance recognized that FAFB' s missions "may be modified in the future to

include more substantial aircraft operations involving more intrusive aircraft" and stated

that the regulations were implemented to protect FAFB' s expansion of its military

missions by restricting incompatible land uses. AR at 726.

       Like Spokane County's ordinance, the city of Spokane's ordinance combined

MIAs 3 and 4, stating "MIA 3/4 is the primary land use impact area whereby land uses

and development densities have the potential to adversely impact Fairchild AFB." AR at

730. It defined incompatible land use as "[u]ses that put people in harm's way, increase

the risk or severity of an aircraft accident, endanger public infrastructure, or reduce the



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long-term functionality and economic viability of the region's civil and military aviation

facilities." AR at 730. It prohibited new residential zones in the MIA 3/4. 1

       Due to the disagreement between the local governments regarding implementation

of the JLUS, Airway Heights, the city of Spokane, and Spokane County entered into a

"MEMORANDUM OF UNDERSTANDING [MOU] REGARDING

IMPLEMENTATION OF THE JOINT LAND USE STUDY FOR FAIRCHILD AIR

FORCE BASE (JLUS)." AR at 1121. The MOU, effective August 2, 2012, noted that

the parties had previously agreed to a definition of incompatible as "permitted land uses

that are inconsistent with JLUS, WSDOT Aviation Division Regulations, FAA

Regulations, state statutes or regulations." AR at 1121. It provided for a period of 90

days for the parties to reach an agreement regarding future residential

development in Airway Heights.

       Five months later, with the approval of the JLUS coordinating committee and the

Spokane County commissioners, Airway Heights adopted JLUS Ordinance C-771, "JLUS

Protections for FAFB." AR at 1142. Land use under this ordinance is governed by

standards set forth in the 1995 AICUZ. Similar to the JLUS, it discouraged residential


       1
        This background is provided only to show the context of the dispute. Because
the property is subject to the more stringent MIA 4 limitations, the fact that the city of
Spokane and Spokane County determined that MIA 3 should be subject to the more

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development in the 65-69 Ldn and generally prohibited it in areas exceeding 70 Ldn. The

ordinance generally prohibited new or expanded residential development in MIA 3/4, but

permitted proposed multi-family or mixed use development through a conditional use

permit, subject to the provisions of the underlying zone. Significantly, nothing in the

MOU altered that portion of the JLUS that prohibited the City from redesignating the

commercial property involved in this case to a residential category.

       In July 2013, the City passed a resolution regarding proposed modifications to its

land use regulations. The resolution noted that the JLUS MOU group had reached

consensus concerning "the proposed JLUS Ordinance of the City (AHMC Chapter 17.16)

which adopts the 2009 JLUS Study, the amended MIA 3/4 designation and the Spokane

County Regulations set forth in County Resolution 12-344 to the extent they are not

inconsistent with the City JLUS Ordinance." AR at 1640. The resolution noted that

Airway Heights' JL US ordinance, C-771, incorporated DOD instructions regarding land

uses that are compatible with FAFB operations and allowed conditional mixed use

developments with multi-family dwellings in C-2 (commercial zones). The City moved

forward with its proposed amendments to AHMC 17 .11 and 17.3 7. It received significant

opposition to the proposed changes, particularly regarding the potential residential


stringent limitations of MIA 4 is of no consequence to our decision.

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development of the property at issue here.

       In May 2013, the SIA advised the City that it was in the process of completing an

update to the airport master plan and that the location of a future parallel runway was only

an approximation. It stated that the C-2 area located in the vicinity of Deer Heights Road

may present an incompatible land use related to the future parallel runway. It stated:

"Adopting zoning that permits residential use within close proximity to the Airport may

ultimately create situations requiring preventive or remedial mitigation actions to ensure

that the ability of the Airport to develop and operate without limitations is not hindered."

AR at 667.

       The SIA noted that its board adopted the findings and recommendations of the

JLUS on March 21, 2012. It emphasized that "[a] key component of the staff

recommendation and Board approval of the JLUS relates to the measure calling for no

new residential development within 65 [Ldn] contour or higher." AR at 667. It therefore

opposed Airway Heights' proposals as inconsistent with the JLUS.

       The SIA recognized the ordinances provided for noise attenuation to achieve

compatibility in the 65 Ldn to 70 Ldn contour, but emphasized that sound attenuation is

typically installed as a remedial mitigation to achieve some improved livability for

persons located in established residential dwellings and is not generally recognized as an


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City ofAirway Heights v. E. Wash. Growth Mgmt. Hr 'gs Bd.


enabling mechanism to allow for encroachment of incompatible use in areas of 65 Ldn

and higher noise exposure. It stated, "[ s]ound insulation will not resolve complaints

about other overflight impacts such as landing lights, vibration, dust, fumes and

interference with electronic devices, etc. and will obviously not permit the enjoyment of

outdoor activities in these areas by the residents." AR at 667. It warned that

implementation of the proposed land use changes would set a precedent to allow

incompatible uses in commercial zones and could negatively impact the SIA in the future.

       FAFB also voiced its opposition. In a letter to Mr. Braaten, Colonel Brian

Newberry emphasized that it is difficult to predict future noise contours. He compared

noise zones in the 1995 AICUZ with those in the 2007 study, pointing out that the

highlighted parcel on the map in the 1995 FAFB AICUZ is located in the 65-70 Ldn noise

zone, but that the 2007 study located the parcel outside the 65 Ldn contour line. Despite

the unpredictability of future noise contours, the colonel was certain that the parcel "will

be susceptible to aircraft noise into the foreseeable future, from both FAFB and Spokane

International Airport." AR at 652. Referencing the 2009 JLUS, he pointed out that the

subject property is within MIA 3/4 and that FAFB was concerned about increasing

residential density in an area so close to where military jet aircraft fly instrument

approaches to the runway. He noted:


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       Noise will be a factor as both airports operate 24 hours a day. While sound
       mitigation techniques can be used during construction, we strongly do not
       recommend increasing residential development in that area. Safety is also a
       factor worth considering and the close proximity to the approaches of the
       two runways would increase the risk to the residents in the event of a
       catastrophic aircraft accident.

AR at 653.

       The aviation division of the WSDOT also opposed the amendments, noting that

the Deer Creek site was close to the SIA's planned parallel runway. In a letter to Mr.

Braaten, it summarized its concerns, noting that "[r]esidential development on the Deer

Creek site will be impacted from a variety of aviation activities. Such activities may

include, but are not limited to, noise, light, vibration, odors, hours of operation, low

overhead flights and other associated activities." AR at 657.

       Spokane's planning and development department also opposed the proposed

ordinances, stating "[t]he proposal appears to be an effort to pave the way for additional

high density residential housing in an area that will be subject to impacts from both

Fairchild Air Force Base and Spokane International Airport for the foreseeable future,

will jeopardize current and future missions/operations of both facilities, and will be

detrimental to the public health, safety, or general welfare." AR at 674. The department

cautioned: "Allowing new residential uses even as part of a mixed use development, in

the LdN 65 noise contour for Fairchild Air Force Base (FAFB) and the Military Influence

                                             22
No. 33083-4-III
City ofAirway Heights v. E. Wash. Growth Mgmt. Hr 'gs Bd.


Area (MIA) 4, identified by the 2009 Joint Land Use Study (JLUS), is not appropriate and

will give false expectations if the mixed-use overlay zone covers areas within the LdN 65

noise contour." AR at 680.

       Despite this opposition, the City adopted Ordinances C-797 and C-798, which, as

detailed above, incorporate Airway Heights' JL US (Ordinance C-771) and potentially

allow the development of multi-family housing on the subject properties pursuant to a

conditional use process. Ultimately, the City dismissed the concerns of Fairchild's base

commander, aviation experts, and the City and County of Spokane, stating that their

concerns appeared to be based on their JLUS standards, not the Airway Heights' JLUS.

       Spokane County, the city of Spokane, and the SIA Board petitioned for review to

theGMHB.

       6. GMHB Decision

       In a 37-page ruling, the GMHB invalidated the challenged ordinances as not

complying with the GMA. In its decision, the GMHB gave "significant weight" to

comments from FAFB, the SIA, and the FAA. Clerk's Papers (CP) at 82. The Board

explained that these agencies had "specialized knowledge and expertise relating to the

residential land use/military operations compatibility issues." CP at 82. In addition, the

Board gave weight to the 2008 findings of the hearing examiner, as upheld by this court


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No. 33083-4-111
City ofAirway Heights v. E. Wash. Growth Mgmt. Hr 'gs Bd.


in Deer Creek. The Board explained its reason for giving weight to the 2008 findings

was because "the 2008 denial pertained to a portion of the subject Property." CP at 82.

In addition, the GMHB gave weight to the JLUS, because "Airway Heights [had] agreed .

. . that 'incompatible development' mean[t] permitted land uses that are inconsistent with

the JLUS." CP at 82.

      The Board entered the following findings of fact:

          1. Ordinance Nos. C-797 and C-798 modified the land use designations
             and development regulations affecting approximately 29-30 acres of
             land within the City of Airway Heights ....

          2. The Airway Heights C-2 zone is a land use classification that allows
             for general commercial uses, as a conditional use, including inter
             alia Multi-Family Residential as part of an approved mixed-use
             development plan ....

          3. The Multi-Family Residential development authorized by Ordinance
             Nos. C-797 and C-798 allows an increase in the number and density
             of residential uses in the vicinity of Fairchild Air Force Base and
             near Spokane International Airport.

          4. An increase in the number and density of residential uses in the
             vicinity of Fairchild Air Force Base and near Spokane International
             Airport has a high potential for adverse noise and safety impacts.

          5. High density residential development would be incompatible with
             aircraft approach and departure operations and would jeopardize the
             future viability of Fairchild Air Force Base and Spokane
             International Airport.




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No. 33083-4-III
City ofAirway Heights v. E. Wash. Growth Mgmt. Hr'gs Bd.


           6. The property affected by Ordinance Nos. C-797 and C-798 is located
              within Fairchild Air Force Base's critical operations area designated
              Military Influence Area 4.

           7. The Multi-Family Residential development authorized by Ordinance
              Nos. C-797 and C-798 will affect current Air Force operations and
              will limit the ability of Fairchild Air Force Base to adapt to new
              missions, support new/different aircraft, and could jeopardize the
              Base's long-term viability.

           8. The Multi-Family Residential development authorized by Ordinance
              Nos. C-797 and C-798 will limit the ability of Spokane International
              Airport to construct and operate a future parallel runway.

          9. The Multi-Family Residential development authorized by Ordinance
             Nos. C-797 and C-798 is incompatible with current and future
             operations of Fairchild Air Force Base and Spokane International
             Airport.

           10. Fairchild Air Force Base and Spokane International Airport are
               Essential Public Facilities.

CP at 94-95. Based on these findings, the Board was left with a firm and definite

conviction that a mistake had been made, and that the challenged ordinances were clearly

erroneous in light of the goals and requirements of the GMA in that the challenged

ordinances improperly ( 1) authorized development in the vicinity of FAFB that was

incompatible with FAFB' s ability to carry out its current mission requirements or to

undertake new missions, (2) failed to discourage the siting of incompatible uses adjacent

to the SIA, and (3) precluded the siting of essential public facilities. Further, the Board



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No. 33083-4-111
City ofAirway Heights v. E. Wash. Growth Mgmt. Hr'gs Bd.


invalidated the ordinances, finding that the continued validity of the ordinances would

substantially interfere with the fulfillment of the GMA's goals.

       The City appealed the Board's decision to Spokane County Superior Court. That

court reversed the Board's decision and affirmed the City's adoption of the challenged

ordinances. Spokane County, the city of Spokane, and the SIA Board appeal to this court.

                                        ANALYSIS

A.     Incompatibility with FAFB 's Mission Requirements

       The first question before us is whether the GMHB erred in concluding that the

challenged ordinances violate the GMA as being incompatible with F AFB' s ability to

carry out its mission requirements or to undertake new missions.

       Standard of Review

       Comprehensive plans and development regulations under the GMA are presumed

valid on adoption. RCW 36.70A.320(1). The board shall find GMA compliance unless it

determines that the local plan or regulation is clearly erroneous in view of the entire

record before it and in light of the goals and requirements of the GMA. RCW

36.70A.320(3). To find a city's actions "clearly erroneous," the board must have a "firm

and definite conviction that a mistake has been committed." Dep 't ofEcology v. Pub.

Util. Dist. No. 1, 121 Wn.2d 179, 201, 849 P.2d 646 (1993). A board's order that fails to



                                             26
No. 33083-4-111
City ofAirway Heights v. E. Wash. Growth Mgmt. Hr 'gs Bd.


apply this deferential standard of review is not entitled to deference from this court.

Quadrant Corp. v. Cent. Puget Sound Growth Mgmt. Hr 'gs Bd., 154 Wn.2d 224, 23 8,

110 P.3d 1132 (2005). This "clear error" standard reflects the legislature's intent that the

board "grant deference to counties and cities in how they plan for growth, consistent with

the requirements and goals of this chapter." RCW 36.70A.3201 (emphasis added). In

effecting this balance, the legislature intended for "local planning to take place within a

framework of state goals and requirements, [but] the ultimate burden and responsibility

for planning, harmonizing the planning goals of this chapter, and implementing a

county's or city's future rests with that community." Id.

       Courts give substantial weight to a board's interpretation of the GMA. Lewis

County v. W. Wash. Growth Mgmt. Hr 'gs Bd., 157 Wn.2d 488, 498, 139 P.3d 1096

(2006). "The burden of demonstrating that the Board erroneously interpreted or applied

the law, or that the Board's order is not supported by substantial evidence, remains on the

party asserting the error." King County v. Cent. Puget Sound Growth Mgmt. Hr 'gs Bd.,

142 Wn.2d 543, 553, 14 P.3d 133 (2000).

       The Administrative Procedures Act (APA), chapter 34.05 RCW, governs judicial

review of challenges to decisions by a board. The AP A requires us to review the record

created before the board, not the record before the superior court. Lewis County, 157


                                             27
No. 33083-4-III
City ofAirway Heights v. E. Wash. Growth Mgmt. Hr'gs Bd.


Wn.2d at 497. We review legal conclusions de novo. Thurston County v. W Wash.

Growth Mgmt. Hr'gs Bd., 164 Wn.2d 329, 341, 190 P.3d 38 (2008). In reviewing claims

that the order is not supported by substantial evidence under RCW 34.05.570(3)(e), we

determine whether there is "a sufficient quantity of evidence to persuade a fair-minded

person of the truth or correctness of the order." Callecod v. Wash. State Patrol, 84 Wn.

App. 663, 673, 929 P.2d 510 (1997).

B.    Development Incompatible with a Military Installation's Mission

      RCW 36.70A.530 provides:

      ( 1) Military installations are of particular importance to the economic
      health of the state of Washington and it is a priority of the state to protect
      the land surrounding our military installations from incompatible
      development.

              (3) A comprehensive plan ... [or] a development regulation, should
      not allow development in the vicinity of a military installation that is
      incompatible with the installation's ability to carry out its mission
      requirements. A city or county may find that an existing comprehensive
      plan or development regulations are compatible with the installation's
      ability to carry out its mission requirements.

      In conjunction with RCW 36.70A.530, the legislature included its finding:

      "The United States military is a vital component of the Washington state
      economy. The protection of military installations from incompatible
      development of land is essential to the health of Washington's economy and
      quality of life. Incompatible development of land close to a military
      installation reduces the ability of the military to complete its mission or to
      undertake new missions, and increases its cost of operating. The

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No. 33083-4-111
City ofAirway Heights v. E. Wash. Growth Mgmt. Hr'gs Bd.


       department of defense evaluates continued utilization of military
       installations based upon their operating costs, their ability to carry out
       missions, and their ability to undertake new missions."

RCW 36.70A.530 (note) (emphasis added).

       1.     Adopting the proper legal standard

       The City urges this court to adopt an objective test, based on the DOD and FAA

standards for determining the meaning of "incompatible development." It argues that

various standards relied on in the JLUS would allow multi-family development in areas

between 65 and 69 Ldn, provided that appropriate noise reduction measures are taken.

We do not believe that adopting a standard that focuses on a current Ldn level is

consistent with our legislature's intent.

       Our legislature's 2004 finding establishes that "incompatible development" must

be defined more broadly than a military installation's current mission, it must also

account for the installation's ability to undertake new missions. Indeed, an installation's

ability to meet both current and future military needs is a significant factor in determining

whether to close or to continue operating a military installation.

       The City also argues that the GMHB erred when it adopted the JLUS's definition

of "incompatible" as development that is inconsistent with the JLUS. The City argues

that the court, not the JLUS participants, must define legal standards. We reject these



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No. 33083-4-111
City ofAirway Heights v. E. Wash. Growth Mgmt. Hr 'gs Bd.


arguments because the GMHB did not adopt the JLUS's definition. Although the GMHB

considered development inconsistent with the JLUS as evidence of incompatibility, it did

so because the JLUS participants had expertise in knowing how residential development

could adversely impact the current and future operations ofFAFB.

       In its decision, the GMHB defined "incompatible development" as "development

that is incompatible with the military installation's ability to carry out its mission

requirements or to undertake new missions." CP at 72. Because we give substantial

weight to the Board's interpretation of the GMA, and because the Board's definition is

consistent with our legislature's focus on current and future mission needs, we adopt the

Board's definition. We hold that, for purposes ofRCW 36.70A.530, "incompatible

development" means development that is incompatible with a military installation's

ability to carry out its current or future missions.

       Moreover, because this definition is factually intensive, we agree with the Board's

decision to give weight to knowledgeable persons with expertise and to collaborative

agreements involving such entities, such as the JLUS. The DOD-funded JLUS was a

collaborative planning effort involving local stakeholders, including the city of Airway

Heights. Its participants included experts in various policy and technical capacities. Its

technical advisory group consisted of county and city planners, military planners,


                                               30
No. 33083-4-III
City ofAirway Heights v. E. Wash. Growth Mgmt. Hr'gs Bd.


technical specialists, and state agency and tribal representatives. It based its noise

recommendations on the AICUZ study and a technical Air Force NOISEMAP computer

model, which is approved by the Environmental Protection Agency. The study assessed

four future mission scenarios with the 20-year operations forecast of the SIA. Based on

this technical information, the JLUS developed noise contours and standards to guide

future land use decisions.

       2.     Appropriate deference to the City's ordinances

       The City argues that the GMHB, by giving weight to these experts and the JLUS,

failed to give it the deference required under the GMA. We disagree. Encouraging

collaboration between communities, a military installation, and other knowledgeable

participants is consistent with the goals stated in the GMA. We agree with the City that

one important goal is to give cities and counties a broad range of discretion "in how they

plan for growth, consistent with the requirements and the goals of [the GA1A]."

RCW 36.70A.3201.

       Another important goal, however, is to protect the economic health of

the state of Washington and local communities impacted by military installations.

RCW 36.70A.530(1). This latter goal is best realized by giving due weight to the

opinions of stakeholders and those with expertise, such as the JLUS participants. Here,



                                             31
No. 33083-4-111
City ofAirway Heights v. E. Wash. Growth Mgmt. Hr 'gs Bd.


the GMHB properly applied a clearly erroneous standard when reviewing the challenged

ordinances. The GMHB also properly gave due weight to the opinions of stakeholders

and communities impacted by FAFB, in addition to the JLUS. We conclude that the

GMHB properly achieved both GMA goals as outlined above.

       3.     Evidentiary sufficiency that the ordinances violate RCW 36. 70A.530

       The City argues that there is insufficient evidence that its challenged ordinances

are incompatible with the FAFB' s ability to carry out its current or future missions. In

support of its argument, it asserts that the challenged ordinances are consistent with

various federal standards, and the conditional use permitting process assures that the

proper balance will be achieved between the City's needs and F AFB 's current and future

mission requirements. We reject the City's argument for three reasons.

       First, as the Board observed:

              The conditional use permit calls for current noise level studies, with
      sound insulation required at certain noise thresholds. By focusing on noise
      contours determined at the time of project application, the Ordinances fail
      to make allowances for future mission changes or the use of different
      aircraft at FAFB.

CP at 78.

      Second, the ordinances violate the JLUS by allowing once commercial property in

an MIA 4 zone to be reclassified multi-family residential. This violation of the JLUS, as


                                            32
No. 33083-4-111
City ofAirway Heights v. E. Wash. Growth Mgmt. Hr'gs Bd.


mentioned before, is evidence that the challenged ordinances are incompatible with

FAFB's ability to carry out its current or future missions.

       Third, numerous persons and agencies with expertise weighed in against the

challenged ordinances and provided reasons supporting their conclusions why potential

multi-family residential development in the MIA 4 zone was incompatible with FAFB's

ability to carry out its current or future missions.

       Where a party challenges the sufficiency of the evidence, we examine whether

there is evidence in sufficient quantum to persuade a fair-minded person of the truth of

the declared premises. Miller v. City of Tacoma, 138 Wn.2d 318, 323, 979 P.2d 429

(1999) (quoting Robinson v. Safeway Stores, Inc., 113 Wn.2d 154, 157, 776 P.2d 676

(1989)). For the reasons explained above, we conclude that there is sufficient evidence

for the Board to be left with a firm and definite conviction that a mistake had been made,

and that the challenged ordinances were clearly erroneous in light of the goals and

requirements of the OMA.

C.     Discouraging the Siting ofIncompatible Land Uses Adjacent to the SIA

       The OMA subjects local government land use planning affecting general aviation

airports to RCW 36.70.547, which states that a city "shall, through its comprehensive plan

and development regulations, discourage the siting of incompatible uses adjacent to such



                                               33
No. 33083-4-III
City ofAirway Heights v. E. Wash. Growth Mgmt. Hr 'gs Bd.


general aviation airport." The Board found that, because numerous local aviation experts

and agencies opposed the proposed development as incompatible, the ordinances violated

RCW 36.70.547. The Board also considered the 2008 hearing officer's findings in the

Deer Creek dispute.

      The City asserts that insufficient evidence supports the Board's findings and

conclusion that the challenged ordinances violate RCW 36.70.547. The City argues that

the challenged ordinances actually discourage residential uses that may be incompatible

with the SIA because the conditional use requirements make residential construction

difficult. Spokane County, the city of Spokane, and the SIA Board respond that the

challenged ordinances and maps, by redesignating commercial property multi-family

residential, actually encourage incompatible residential development.

      In Kittitas County v. Eastern Washington Growth Management Hearings Board,

172 Wn.2d 144, 175, 256 P.3d 1193 (2011), the court emphasized the deference that the

board must grant cities and counties when reviewing local plans and regulations under

RCW 36.70.547. There, the court framed the issue as, "whether the County's failure to

prohibit residential uses and higher-than-recommended densities by the Washington State

Department of Transportation (WSDOT) violates the GMA." Id. at 174. There, the

board found that, because the county's regulations diverged from WSDOT's


                                           34
No. 33083-4-111
City ofAirway Heights v. E. Wash. Growth Mgmt. Hr 'gs Bd.


recommendations for land near airports, the county's challenged regulation violated the

OMA. Id. In reversing the board, the Kittitas County court stated:

       The Board gave substantial weight to WSDOT's recommendations. The
       Board, however, is supposed to give deference to the County unless the
       County clearly erred. The statutory scheme requires only that counties
       "discourage" incompatible uses. Discouragement is not the same as
       prohibition. The County clearly did not follow all of WSDOT's
       recommendations. While this may be imprudent, the statutory scheme does
       not suggest that counties must follow the advice ofWSDOT. Considering
       the loose statutory language and the requirement of boards to defer to
       counties' planning choices, the record before the Board does not establish
       firmly and definitely that the County erred.

Id. at 174-75 (citations omitted).

       In reviewing the evidence before the Board, we have three concerns. First, the

comments relied on by the Board from the FAA, WSDOT, and Greater Spokane

Incorporated relate to their concerns about how the challenged ordinances would impact

both FAFB and the SIA. Because RCW 36.70.547 requires us to focus on how the

challenged ordinances will impact the SIA, the broad comments from these three entities

do not provide the clear evidence needed, given the deference the GMA requires the

Board to give to the City's choices. Second, some of the agency comments focus on the

City's noncompliance with the JLUS. We note that the JLUS was largely focused on the

current and future needs of FAFB, not the SIA. Third, the 2008 Deer Creek findings of

the hearing officer were based on evidence that might have changed in the five or more

                                           35
No. 33083-4-III
City ofAirway Heights v. E. Wash. Growth Mgmt. Hr 'gs Bd.


years leading up to the Board's decision under review.

       Because of these concerns, we focus on the SIA's most recent comments opposing

the challenged ordinances. In a May 2013 letter to Mr. Braaten, the SIA wrote:

       2.     Adopting zoning that permits residential use within close proximity
              to the Airport may ultimately create situations requiring preventive
              or remedial mitigation actions to ensure that the ability of the Airport
              to develop and operate without limitations is not hindered ....
       3.     . .. The area of C-2 that is located in the vicinity of Deer Heights
              Road is cause for concern that this may present an incompatible land
              use related to the future parallel runway ....

AR at 667 (emphasis added). Although the SIA objected to the challenged ordinances,

the first objection was that preventative or remedial mitigation might be necessary.

Preventative or remedial mitigation has been incorporated into the City's challenged

ordinances as part of the conditional use process. The second objection was directed to

the property at issue, but was equivocal whether development on the property would be

incompatible with the future parallel runway. Consistent with the Kittitas County case,

we conclude, "Considering the loose statutory language and the requirement of boards to

defer to the [City's] planning choices, the record before the Board does not establish

firmly and definitely that the [City] erred." Kittitas County, 172 Wn.2d at 175.




                                             36
No. 33083-4-111
City ofAirway Heights v. E. Wash. Growth Mgmt. Hr 'gs Bd.


D.     Precluding the Siting or Expansion of FAFB or the SIA

       RCW 36.70A.200(5) states that "[n]o local comprehensive plan or development

regulation may preclude the siting of essential public facilities." RCW 36.70A.200(5)

applies to expansions of essential public facilities. City ofDes Moines v. Puget Sound

Reg'! Council, 108 Wn. App. 836, 844-45, 988 P.2d 27 (1999).

       The parties stipulated that both F AFB and the SIA are essential public facilities

within the meaning of the GMA:

       The parties acknowledge and agree that [F AFB] and Spokane International
       Airport ("SIA") are two of the region's most essential public facilities and
       that the parties should cooperate to discourage development that is
       incompatible with either facilities' operational needs and/or its ability to
       carry out its current and/or future missions ....

AR at 1121.

       The City argues that the Board erred in concluding that the challenged ordinances

preclude the siting or expansion of either FAFB or the SIA. In our analysis above, we

held that there was sufficient evidence for the Board to find that the challenged

ordinances allowed incompatible development with respect to F AFB' s ability to carry out

its current and future missions. But this finding does not necessarily establish a violation

ofRCW 36.70A.200(5) that requires that the plan or regulation "preclude" an essential

public function. The word "preclude" means to "' render impossible or impracticable.'"



                                             37
No. 33083-4-111
City ofAirway Heights v. E. Wash. Growth Mgmt. Hr'gs Bd.


See id. at 84 7. Applying this standard, there is little or no evidence that the challenged

ordinances would render impossible or impracticable current or contemplated operations

of either FAFB or the SIA. Considering the requirement that the Board must defer to the

City's choices, the record before the Board does not establish firmly and definitely that

the City erred in enacting the challenged ordinances.

       Affirmed in part; reversed in part.




                                             Lawrence-Berrey, A.CJ.
                                                                                j
WE CONCUR:




  22~al_4c:J, U~
Siddoway, J.




Korsmo, J.




                                              38
