Bjarnson v. Kitsap County

• Decision Date: 24 July 1995
• Docket Number: No. 33781-5-I,33781-5-I
• Citation: 899 P.2d 1290,78 Wn.App. 840
• Court: Washington Court of Appeals
• Parties: Rick BJARNSON, Appellant, v. KITSAP COUNTY; Kamal Guiha and Joanna Guiha, husband and wife; Cross Sound Properties, Inc., a Washington corporation; First Western Development of Washington IV Associates, believed to be a partnership and Kitsap County Bank, Respondents. Kitsap Citizens For Fair Government, a nonprofit Washington corporation, Appellant, Kitsap County; John Horsley; Kamal Guiha and Joanna Guiha, husband and wife; Cross Sound Properties, Inc., a Washington corporation; First Western Development of Washington IV Associates, believed to be a partnership; and Kitsap County Bank, Respondents.

Page 840

78 Wn.App. 840

899 P.2d 1290

Rick BJARNSON, Appellant, v. KITSAP COUNTY; Kamal Guiha and Joanna Guiha, husband and wife; Cross Sound Properties, Inc., a Washington corporation; First Western Development of Washington IV Associates, believed to be a partnership and Kitsap County Bank, Respondents Kitsap Citizens For Fair Government, a nonprofit Washington corporation, Appellant Kitsap County; John Horsley; Kamal Guiha and Joanna Guiha husband and wife; Cross Sound Properties, Inc., a Washington corporation; First Western Development of Washington IV Associates, believed to be a partnership; and Kitsap County Bank, Respondents.

No. 33781-5-I.

Court of Appeals of Washington Division 1.

July 24, 1995.

John Condon Merkel, Kingston, for appellants.

Richard Shattuck, Silverdale, Glenn Amster, Hillis Clark Martin & Peterson, Seattle, Gary Chrey, Shiere Kamps & Chrey, Port Ordhard, Philip King, Seattle, Gerald Kearney, Kingston, Linda Clapham, Lane Powell Spears Lubersky, Seattle, and Douglas Fortner, Kitsap County Pros. Atty., Port Orchard, for respondents.

WEBSTER, Judge.

Rick Bjarnson appeals the dismissal of his challenge to a rezone and Planned Unit Development (PUD). He claims the Board of Kitsap County Commissioners violated County ordinances and state law; and that the record supports denial of the rezone and PUD. Kitsap Citizens for Fair Government (KCFG) appeals the dismissal of its challenge to the rezone alleging genuine issues of material fact precluded summary judgment. We affirm.

FACTS

The Board of Kitsap County Commissioners (Board) approved a rezone and PUD for a regional shopping center near Kingston in North Kitsap County. The proposed rezone is at the intersection of State Highway 104 and Hansville Road, known locally as George's Corner. The Board's action was the culmination of a lengthy administrative review process that began in 1988 with the filing of the original application. The Kitsap County Hearing Examiner recommended denial, July 26, 1991. The Board approved the rezone and PUD, January 11, 1993.

Bjarnson appeals, claiming the Board violated County ordinances and state law and the record supports denial of the rezone and PUD. KCFG challenged the appearance of fairness of the hearings and alleged due process violations concerning the activities of one of the County Commissioners, John Horsley. The County moved for stay and remand to hold another hearing without Horsley's participation. The court ruled the County had the inherent power to conduct a new hearing, but denied the stay. To remove the taint of the appearance of fairness allegations, two members of the three-member Board reheard the application and issued a second decision approving the rezone and PUD, July 19, 1993.

KCFG filed a motion to amend its complaint to challenge the new decision. Following deposition testimony from the two County Commissioners who made the new decision, the court denied the motion to amend. The court granted the County's motion for a partial summary judgment and dismissed KCFG's appearance of fairness doctrine and due process claims. The court then affirmed the decision of the Kitsap County Commissioners, and dismissed the complaint. Bjarnson and KCFG appeal.

I

Bjarnson claims the Board, in making its decision, violated RCW 36.70.970 and Kitsap County Ordinance 128 by entering finding of facts and conclusions of law. He argues that the Board was acting as an appellate body and had no authority to substitute its judgment for that of the Hearing Examiner. He also contends the Kitsap County Code improperly combines appellate and final decision making functions.

The general legal principles which apply to appeals from lower to higher courts do not apply to administrative review of administrative determinations. The scope and nature of an administrative appeal or review must be determined by the provisions of the statutes and ordinances which authorize them.

Chaussee v. Snohomish County Council, 38 Wash.App. 630, 639, 689 P.2d 1084 (1984).

RCW 36.70.970 allows the County the option of creating a land use hearing examiner system, and to treat decisions of the hearing examiner as either recommendations or as final decisions subject to appeal. Kitsap County Ordinance 128 clearly states that on rezones and PUD's "[t]he recommendation of the hearing examiner is a recommendation only and the decision with respect to the application shall be made by the BOARD." K.C.Ord. 128 § 6.e. (4). Thus, the Hearing Examiner's decision on rezones and PUD's are recommendations. The matter is automatically transferred to the Commissioners for decision. K.C.Ord. 128.6.e. (4); see Belcher v. Kitsap County, 60 Wash.App. 949, 951 n. 1, 808 P.2d 750 (1991). ¹

The County ordinance requires the Board to prepare and publish findings of fact and conclusions of law when deciding rezone and PUD applications. The Board can either prepare its own findings and conclusions or adopt those prepared by the hearing examiner. K.C.Ord. 128 § 6.j. (2). It follows that the Board has the authority to modify or reverse the recommendations of the hearing examiner.

Thus, even though the County Code denominates the action as an appeal, the effect of an appeal to the Board is that the party is asking the Board to not accept the Hearing Examiner's recommendation. K.C.Ord. 128 § 6.g., h. Bjarnson's appeal was not a judicial appeal. Belcher, 60 Wash.App. at 952, 808 P.2d 750. Here, there is no improper combination of legislative and decision-making functions. The Board was not acting as an appellate body; it had authority to substitute its judgment for that of the hearing examiner. The Board acted within its power to enter findings and conclusions.

II

Bjarnson also claims there was no substantial change in circumstance justifying the rezone. Review of a writ of certiorari is governed by RCW 7.16 and is on the record before the final decision maker. Chaussee, 38 Wash.App. at 636, 689 P.2d 1084. The standard of review for legal issues is de novo. We conduct a deferential review of factual issues under thesubstantial evidence test. Substantial evidence is "evidence which would convince an unprejudiced thinking mind of the truth of the declared premise." RCW 7.16.120(5); Freeburg v. Seattle, 71 Wash.App. 367, 371, 859 P.2d 610 (1993). We view

the evidence and the reasonable inferences therefrom in the light most favorable to the party who prevailed in the highest form that exercised fact-finding authority, a process that necessarily entails acceptance of the fact-finder's views regarding credibility of the witnesses and the weight to be given reasonable but competing inferences.

Freeburg, 71 Wash.App. at 371-72, 859 P.2d 610, quoting State ex rel. Lige & Wm B. Dickson Co. v. County of Pierce, 65 Wash.App. 614, 618, 829 P.2d 217 (1992). The following general rules apply to rezone applications:

(1) there is no presumption of validity favoring the action of rezoning; (2) the proponents of the rezone have the burden of proof in demonstrating that conditions have changed since the original zoning; (3) the rezone must bear a substantial relationship to the public health, safety, morals, or welfare.

Parkridge v. Seattle, 89 Wash.2d 454, 462, 573, P.2d 359 (1978).

The Board adopted the Hearing Examiner's findings 1 through 12, and made additional findings. It found that the proposed rezone and PUD was consistent with the County's Comprehensive Plan and the North Kitsap Subarea Plan (NKSAP). The NKSAP specifically provides for a future regional shopping center at George's Corner. The Draft Environmental Impact Statement notes that the shopping center's proposed location is consistent with NKSAP policies GC-1, 4, 5 & 7.

The rezone applicants and Kitsap County assert that a showing of changed circumstances is not required where the rezone implements an adopted comprehensive plan. SORE v. Snohomish, 99 Wash.2d 363, 370-71, 662 P.2d 816 (1983); see Murden Cove v. Kitsap County, 41 Wash.App. 515, 522-523, 704 P.2d 1242 (1985) (in addition to substantial changed circumstances change to comprehensive plan justified rezone). Bjarnson contends that SORE is inapplicable because the Kitsap County comprehensive plan was not modified to accommodate changed circumstances.

In SORE, the court found that substantial changed circumstances were documented in the County's amendment to its comprehensive plan. The court's alternate holding concurred with the Hearing Examiner's conclusion that the substantial change rule does not apply where the rezone implements the comprehensive plan. SORE, 99 Wash.2d at 370, 662 P.2d 816. The court adopted the Hearing Examiner's rationale that:

If such implementation were not allowed to occur until physical or developmental circumstances in the area had changed, the new comprehensive plan might never be fulfilled: if an area is presently undeveloped and a newly amended comprehensive plan calls for industrial development, no industrial development may occur until at least one rezone has been granted.

SORE, 99 Wash.2d at 370, 662 P.2d 816.

SORE's alternate holding applies here. The area is zoned R 2.5. Practically no commercial development and no shopping center can be built until a rezone is granted. Kitsap County Code § 17.08.010; Return of Writ, Vol. 8, HE's Decision at 1. The NKSAP anticipates future commercial development at George's Corner. We hold that where the proposed rezone and PUD implements policies of the comprehensive plan, changed circumstances are not required.

Moreover, there were sufficient changed circumstances to justify the rezone. In applying the changed circumstances test courts have looked at a variety of factors including: changed public opinion, ² changes in land use patterns in the area of the rezone, ³ and changes on the property itself. ⁴ After concluding that no change in circumstance need be demonstrated, the Board nevertheless concluded there were changed circumstances justifying...