Barrie v. Kitsap County

• Decision Date: 10 July 1980
• Docket Number: No. 45787,45787
• Citation: 93 Wn.2d 843,613 P.2d 1148
• Parties: , 10 Envtl. L. Rep. 20,791 James BARRIE, and Sheila Barrie, his wife, Appellants, v. KITSAP COUNTY, Ronald Ross and Lillian Ross, his wife, Respondents.
• Court: Washington Supreme Court

Page 843

93 Wn.2d 843

613 P.2d 1148, 10 Envtl. L. Rep. 20,791

James BARRIE, and Sheila Barrie, his wife, Appellants, v. KITSAP COUNTY, Ronald Ross and Lillian Ross, his wife, Respondents.

No. 45787.

Supreme Court of Washington, En Banc.

July 10, 1980.

Derrill T. Bastian, Helsell, Fetterman, Martin, Todd & Hokanson, David F. Jurca, Donald C. Harrison, Seattle, for appellants.

C. Danny Clem, Kitsap County Pros. Atty., W. Daniel Phillips, Deputy Pros. Atty., Port Orchard, Smith Redman & O'Hare, Thomas C. O'Hare, Silverdale, Walgren, Sexton & McCluskey, Inc., P. S., Gary H. Sexton, Bremerton, Hillis, Phillips, Cairncross, Clark & Martin, P. S., Richard R. Wilson, Seattle, for respondents.

WRIGHT, Justice.

This is a direct appeal of judgments for defendants in review, on writs of certiorari, of Kitsap County's rezone, and the City of Bremerton's preannexation comprehensive plan adoption and simultaneous zoning, both of which allow shopping center construction. Plaintiffs-appellants raise several issues, including alleged nonconformity of the zoning with the comprehensive plans and purported inadequacy of the environmental impact statements.

The case is consolidated. James and Sheila Barrie, husband and wife, brought one action to obtain judicial review of the Kitsap County Board of County Commissioners' (board) June 13, 1977, rezoning of a 38-acre tract from RS-7500 (single-family residential) to B-G (business-general).

In the other case, the Barries, together with Ed Bremmer, a downtown Bremerton businessman, and Bremerton Tomorrow, a nonprofit business organization, sought judicial review of an action taken by the City of Bremerton March 30, 1977. In that action, the city council simultaneously adopted a comprehensive plan covering and zoned a 74-acre area. The subject area includes a 54-acre tract zoned for business development which encompasses the 38-acre tract involved in the county action. The comprehensive plan adoption and zoning take effect if and when the city annexes the tract. See RCW 35.13.177-178.

The land in question is owned by defendants-respondents Ross, who applied for the county rezone and city preannexation zoning in order to develop a 400,000 square-foot regional retail shopping center. The Ross property lies in unincorporated Kitsap County, just north of Bremerton in an area known as Clares Marsh. The property directly across Wheaton Way, the parcel's eastern boundary, is within city limits.

The Barries own a neighboring 10-acre tract of land which they wish to protect from the adverse effects of the shopping center. They have lived on their property since 1952. In 1961 they remodeled and extensively landscaped their home in reliance on provisions in the comprehensive plan stating that the entire area was and would remain residential in nature. Much of the area abutting Wheaton Way, however, is now commercial.

The Barries operate their property as a conservation farm that is recognized as a wildlife habitat by the Washington Department of Game and the Kitsap County Soil and Water Conservation District. Both Ross and the county evidently concede that the rezone and shopping center will have a serious adverse impact on the Barrie property.

The decision of whether to permit shopping center construction on the Ross property has been a major issue in Kitsap County since the early 1970's, and has been before this court once before. Barrie v. Kitsap County, 84 Wash.2d 579, 527 P.2d 1377 (1974). At that time, the court reversed the trial court's decision and held the county's rezoning invalid. The reversal was prompted by the insufficiency of notice given by the county planning commission (commission) regarding the rezone hearing and the absence of a verbatim record of the rezone proceedings.

Defendants Ross reportedly purchased the land in question before Barrie I. They first applied for the rezone now at issue in 1976.

The actions brought by the Barries against the City and the County, with Mr. and Mrs. Ross named as party defendants in each instance, were tried to the court without a jury. Visiting Judge Chamberlin upheld the City and County decisions in both cases. Plaintiffs appealed. This court granted direct review June 15, 1979.

I.

The first issue is: To what extent must county zoning ordinances conform with comprehensive plans under the Planning Enabling Act? The Barries argue that the county's comprehensive plan is a "constitution" which requires zoning in accordance with its provisions. Respondents, Kitsap County and Mr. and Mrs. Ross, respond that the plan is a "blueprint" or "guide" which does not require strict adherence.

Kitsap County plans and zones pursuant to the Planning Enabling Act, RCW 36.70, which is designed to assure "the highest standards of environment for living." RCW 36.70.010. Carpenter v. Island County, 89 Wash.2d 881, 887, 577 P.2d 575 (1978). RCW 36.70.320 directs the county planning agency (commission) to prepare a comprehensive plan. That plan is defined as a source of reference and policy guide for official regulations and controls. RCW 36.70.020(6)(c) and (d). "Official controls," including zoning ordinances, are "the means of translating into regulations and ordinances . . . the general objectives of the comprehensive plan." RCW 36.70.020(11). RCW 36.70.340 states the comprehensive plan shall not "be considered to be other than . . . a guide to the later development and adoption of official controls."

The commission is to use the plan in reporting on or recommending to the board any proposed projects. The report must indicate how the project does or does not conform to the comprehensive plan. RCW 36.70.450. However, these reports and recommendations are "advisory only." (Italics ours.) RCW 36.70.650. And see RCW 36.70.540. RCW 36.70.550 provides that the commission may prepare official controls which further the plan's objectives and goals and may also draft regulations to preserve the plan's integrity.

It may be argued that the purpose of the act assuring the highest standards of environment for living is defeated when the plan is not strictly followed. However, since planning agency reports and recommendations on proposed projects and controls which must indicate conformity or nonconformity with the comprehensive plan are "advisory only" (RCW 36.70.650 and RCW 36.70.540), it is evident the legislature intended that nonconformance with the plan should not necessarily block a project. South Hill Sewer District v. Pierce County, 22 Wash.App. 738, 745-46, 591 P.2d 877 (1979). This is confirmed by the admonition that the comprehensive plan shall not be considered other than a guide to development and adoption of official controls. RCW 36.70.340.

Appellants argue that the court should follow Oregon by holding that the plan should be given preference over conflicting ordinances. But Oregon's statutory scheme substantially differs from Washington's.

While this court like the statute in question has stated that a comprehensive plan is a "guide" to adoption of zoning regulations (State ex rel. Standard Mining & Dev. Corp. v. Auburn, 82 Wash.2d 321, 330, 510 P.2d 647 (1973); Smith v. Skagit County, 75 Wash.2d 715, 738-39, 453 P.2d 832 (1969)), it also has characterized it as a "blueprint which suggests various regulatory measures." Lutz v. Longview, 83 Wash.2d 566, 574, 520 P.2d 1374, 1379 (1974); Buell v. Bremerton, 80 Wash.2d 518, 526, 495 P.2d 1358 (1972); Shelton v. Bellevue, 73 Wash.2d 28, 35, 435 P.2d 949 (1968). Strict adherence has not been required. Lutz v. Longview, supra; Buell v. Bremerton, supra.

II.

The next issue is: Does the Kitsap County Ross rezone sufficiently conform with the county comprehensive plan? The Barries urge that the regional shopping center contemplated by the Ross rezone is in "patent nonconformity" with the county comprehensive plan. Respondents Ross and Kitsap County argue that the rezone is consistent with the plan.

The plan consists of two parts: (1) the original text, adopted by the board in 1967, and (2) the planning policies, adopted in 1970 and amended in 1975. Nearly all of the Barries' objections directed to specific "conflicts" have no merit. The rezone, however, probably violates Business Area Development Policy No. 25. That policy states: "Urban business areas should be located approximately 4 miles apart." The Ross shopping center would be located only 2 1/2 miles from downtown Bremerton. Nonetheless, we hold that the Ross rezone generally conforms with the plan.

III.

The third question is whether the Kitsap County Commissioners acted arbitrarily and capriciously in adopting the Ross rezone because it does not completely conform with the comprehensive plan. The Barries contend that where a rezoning does not conform with a comprehensive plan it is arbitrary and capricious. Arbitrary and capricious conduct is

willful and unreasonable action, without consideration and (in) disregard of facts or circumstances. Where there is room for two opinions, action is not arbitrary and capricious when exercised honestly and upon due consideration though it may be felt that a different conclusion might have been reached.

Buell v. Bremerton, supra, 80 Wash.2d at 526, 495 P.2d at 1363; Bishop v. Houghton, 69 Wash.2d 786, 794, 420 P.2d 368 (1966).

In Buell this court found that although Bremerton's comprehensive plan did not provide for an enlargement of business zoning, the council's action in doing so was not arbitrary and capricious. Similarly, in Lutz v. Longview, supra, the court held that petitioner had not proved the city council had acted arbitrarily or capriciously in approving for an area zoned single-family residential a planned unit development not provided for in the plan.

In the instant case, even though the Ross shopping center does not completely conform with the plan, it is well within the statutory parameters outlined above. There has not been willful and unreasonable action but instead...