Assoc. of Rural Residents v. Kitsap County

• Decision Date: 20 July 2000
• Docket Number: No. 68027-2.,68027-2.
• Citation: 4 P.3d 115,141 Wash.2d 185
• Court: Washington Supreme Court
• Parties: ASSOCIATION OF RURAL RESIDENTS, a Washington non-profit corporation; and Norman H. Lockwood; Ruth Jaadan Pickrell; Moira Kane; Gerald Levengood; and Robert W. Merriam, Respondents, v. KITSAP COUNTY; Jim Lindsey; and Apple Tree Point Partners, Appellants.

4 P.3d 115

141 Wash.2d 185

ASSOCIATION OF RURAL RESIDENTS, a Washington non-profit corporation; and Norman H. Lockwood; Ruth Jaadan Pickrell; Moira Kane; Gerald Levengood; and Robert W. Merriam, Respondents, v. KITSAP COUNTY; Jim Lindsey; and Apple Tree Point Partners, Appellants.

No. 68027-2.

Supreme Court of Washington, En Banc.

July 20, 2000.

Phillips, McCullough, Wilson, Hill & Fikso, George Richard Hill, Seattle, Russell Hauge, Kitsap County Prosecutor, Evelyn Tanner, Deputy, Port Orchard, for Petitioners.

Bricklin & Gendler, David Alan Bricklin, Michael W. Gendler, Claudia M. Newman, Seattle, for Respondents.

Stephen Overstreet, Olympia, Amicus Curiae on behalf of Building Industry Association of Washington and Keith Birkenfeld.

Lawler & Burroughs, Brian Edward Lawler, Seattle, Amicus Curiae on behalf of Building Industry Association.

GUY, C.J.

Apple Tree Point Partners (Partners) asks this court to determine what land use regulations apply to the proposed development. We find that the former Kitsap County Zoning Ordinance applies because at the time in question the interim urban growth area (IUGA) had not been amended within the period of remand from the growth management hearings board (GMHB) and was therefore not in effect. As a result, land use permits were governed by preexisting zoning ordinances and not by the IUGA and Growth Management Act (GMA), RCW 36.70A. We affirm the Court of Appeals' holding that the application vested to the zoning laws in effect when the application was filed. We reverse its holding that, because the development is incompatible with the GMA, it cannot be approved. Because there was no GMA plan or regulation in effect on the date the application was submitted, the decision to approve or deny the plat and planned unit development (PUD) must be based on the pre-GMA Kitsap County zoning ordinances. Finally, we remand this case to the trial court for review, using the proper standard, of the county commissioners' decision not to require an environmental impact statement.

GMA BACKGROUND

Before we reach the issues this case presents, some background on how the GMA was developed is necessary to shed light on the reasoning behind our decision. Land use planning in Washington has historically been a function left to local governments with the state playing a limited role. Eric S. Laschever, An Overview of Washington's Growth Management Act, 7 Pac. Rim L. & Pol'y J. 657, 658 (1998). With the passage of the GMA, the system changed to a comprehensive planning framework under which local governments are required to plan according to general mandates established by the Legislature. See RCW 36.70A. The GMA was a legislative compromise, and how it is carried out and enforced is a reflection of this compromise. As one commentator has stated: "unlike [the State Environmental Policy Act of 1971 (SEPA), RCW 43.21C] and [the Shoreline Management Act of 1971, RCW 90.58], GMA was spawned by controversy, not consensus. The relative spheres of state mandate and local autonomy were the product of extremely difficult legislative compromise." Richard L. Settle, Washington's Growth Management Revolution Goes to Court, 23 Seattle U.L.Rev. 5, 34 (1999). Moreover,

[b]ecause the recommendations of the Growth Strategies commission were variously embraced, rejected, and ignored by the wrangling legislature, the GMA was not the finely-honed product of a law revision commission. Both installments of the Act were riddled with politically necessary omissions, internal inconsistencies, and vague language, sometimes consciously designed to defer the final reckoning to another day and, perhaps, another forum.

Id. at 8 (footnotes omitted). As a result of this legislative compromise, some growth that is contrary to the GMA was allowed in the initial years of implementing the act.

Enforcement contributes to the problem of obtaining local government compliance with the GMA. The GMA is different from other land use statutes in that the enforcement mechanisms are largely absent.¹ Because the GMHBs do not have the ability to directly sanction counties for failing to comply with the GMA, compliance is more difficult to obtain. In the early years of the GMA when several counties did not comply, some incompatible growth was allowed to occur.

FACTS

The project at issue is on 123 acres of undeveloped land in North Kitsap County, north of unincorporated Kingston. Ex. 87, at 24, 26; Map 7. Partners' proposed PUD consists of 106 single-family lots on the 123 acres. Ex. 6. The overall density would be one unit per 1.16 acres. Ex. 6. At the time of the application, the property was zoned rural 2.5, which allowed one housing unit per 2.5 acres. Ex. 87, at 24. The former Kitsap County Zoning Ordinance section in effect at the time of the application permitted the overall density in rural 2.5 acre zones to be increased to one unit per acre "provided the [PUD] proposal is not unreasonably incompatible with surrounding properties and does not require any capital construction costs to the public." Former Kitsap County Zoning Ordinance § 14p, at 38. Parcels ranging from 2.5 to 50 acres surround the area from the north, west, and south. Ex. 50. To the east, but separated from Partners' property by steep slopes, are developed waterfront lots zoned for two dwelling units per acre. Ex. 50.

The only access to the site is on the west from Lindvog Road. Ex. 87, at 24. Lindvog Road is a paved, 20-foot-wide road extending for approximately one mile north from State Highway 104 to the property. Ex. 87, at 24. The project plan includes the following changes to be made to the property: off-site road improvements, water service improvements and on-site septic systems. Ex. 6, Ex. BB. The site is covered entirely with forest. Ex. F at 1; Ex. Z at 17. There is wildlife on the property, including black bear, deer, river otters, coyote, red foxes, flying squirrels, tree frogs, salamanders and numerous species of birds, including bald eagles. Ex. 2. There are steep slopes and bluffs throughout the property. Ex. 87, at 24; Ex. L; Ex. BB at 1.

On December 15, 1994, Partners submitted a combined preliminary plat and PUD application to the County. Ex. 6. On July 20, 1995, the County issued a mitigated determination of non-significance (MDNS) under SEPA for the Partners' PUD. Ex. 2. The Association of Rural Residents (Residents) appealed this decision to the hearing examiner. The hearing examiner recommended affirming the MDNS with a 70-lot project. Ex. 87, at 29. Both Partners and Residents appealed this decision to the board of county commissioners. The county commissioners approved the project as proposed by Partners and affirmed the MDNS. Residents then filed a land use petition under the Land Use Petition Act (LUPA), RCW 36.70C, in superior court. Clerk's Papers at 1-54.

The superior court struck down the county commissioners' decision for four reasons. First, it determined that the PUD was urban growth outside the IUGA and therefore violated the GMA. Clerk's Papers at 359. Second, the court held that Partners did not have a vested right to have the application considered under the laws in effect at the time of filing. Clerk's Papers at 363-65. Third, the court found that even if it applied the ordinance in effect at filing, the development was unreasonably incompatible with the surrounding property. Clerk's Papers at 367. Finally, the trial court ruled that if the project were allowed to proceed, an environmental impact statement (EIS) would be required because the project had a significant environmental impact. Clerk's Papers at 368. In a split decision, the Court of Appeals affirmed in part and reversed in part, holding that Partners did have a vested right to develop under the zoning laws in effect at the time but that the development was not permitted because it was outside the designated IUGA under the GMA. Association of Rural Residents v. Kitsap County, 95 Wash.App. 383, 386, 974 P.2d 863 (1999). Partners appealed that decision to this court and asks us to affirm the decision by the county commissioners to allow the development.

ISSUES

(1) What land use regulations were in effect at the time the proposal was submitted and which are to be applied to the development application?

(2) Did the plat application coupled with a PUD proposal vest to the rural 2.5 zoning at the time the application was submitted?

(3) Was the MDNS proper under SEPA?

DISCUSSION

Land Use Regulations

The timeline of events is critical in deciding what land use regulations were in effect at the time the completed application was submitted. Kitsap County identified an IUGA on October 4, 1993. Soon after that, Residents sought review of the IUGA by the GMHB. On June 3, 1994, the GMHB concluded that the IUGA was not in compliance with the GMA and remanded it for compliance by October 3, 1994. Kitsap County did not amend the IUGA by October 3, 1994. On December 15, 1994, Partners submitted a completed preliminary plat application and PUD proposal. On December 29, 1994, Kitsap County adopted a comprehensive plan including final urban growth areas. On October 6, 1995, the GMHB determined that the 1994 comprehensive plan was invalid because it was inconsistent with the GMA.

Because Kitsap County did not modify the IUGA until December 29, 1994, when it adopted a comprehensive plan pursuant to the GMA, the IUGA was not in effect at the time Partners submitted the completed application. Kitsap County was required to bring the non-complying IUGA into compliance by October 3, 1994. It did not. At the time the application was submitted, the period of remand had expired. Under current law, a non-complying regulation remains in effect during the period of remand. RCW 36.70A.300(4).² This allows the non-complying IUGA to remain in effect while it is being amended. In the current situation, Kitsap County missed the deadline for compliance; therefore, Partners'...