HJS Development, Inc. v. Pierce County
| Decision Date | 23 January 2003 |
| Docket Number | No. 71430-4.,71430-4. |
| Citation | 148 Wash.2d 451,61 P.3d 1141 |
| Court | Washington Supreme Court |
| Parties | HJS DEVELOPMENT, INC., Respondent, v. PIERCE COUNTY, acting through its DEPARTMENT OF PLANNING AND LAND SERVICES, Appellant. |
Bertha Fitzer, Jill Guernsey, Tacoma, Hillis Clark Martin & Peterson, George Kresovich, Seattle, for Appellant.
Davis, Wright, Tremaine, Stephen Rummage, Jessica Goldman, Seattle, James Kelly, Fox Island, for Respondent.
Appellant Pierce County seeks direct review of a Thurston County Superior Court judgment in favor of Respondent HJS Development, Inc., overturning a decision of a Pierce County hearing examiner which revoked a preliminary plat under a local ordinance, former Pierce County Code 18.50.970 and 18.50.975. The Superior Court reasoned that the hearing examiner did not have authority to revoke Respondent's preliminary plat approval because state platting laws, chapter 58.17 RCW, preempt revocation powers of local jurisdictions on preliminary plat approvals.
The questions presented in this case are (1) whether the Pierce County hearing examiner had the authority to revoke a preliminary plat approval under former Pierce County Code 18.50.970 and 18.50.975; (2) whether state laws, chapter 58.17 RCW— establishing procedures for approving subdivision plats—preempt local ordinances which permit a hearing examiner to revoke a preliminary plat approval; (3) whether revocation powers under the Pierce County Code conflict with RCW 58.17.140, which provides that a final plat meeting all requirements shall be submitted for approval within five years of preliminary plat approval; and (4) whether the decision by the Pierce County hearing examiner was clearly erroneous because he did not consider less harsh sanctions in enforcing conditions of the preliminary plat approval.
On December 30, 1994 Respondent Fox Ridge Investments2 filed a complete application3 for approval of preliminary plat and site plan for a 71-acre parcel on Fox Island in unincorporated Pierce County.4 In its proposal, Respondent requested permission to divide the parcel into a subdivision of 63 single-family residential lots to be served by private roads, on-site septic, and public water. Division I consisted of 42 lots. Division II consisted of 21 lots.5 The plat is bisected by a road, Island Boulevard, and a substantial portion of Division I contains steep slopes, a mixture of coniferous and deciduous vegetation, and forests containing protected trees. Single-family residential homes are located below a portion of the steep slopes and near the proposed development site.6
At the time the plat application was filed on December 30, 1994 and prior to the effective date of the County's Comprehensive Plan, the local zoning laws, Rural-Residential Environment,7 permitted one dwelling unit per acre.8 On January 1, 1995 the property was rezoned R-10, which allowed a maximum residential density of .25 dwelling unit per acre.9 Also in existence at the time of filing were local regulations, Gig Harbor Peninsula Development Regulations 18.50.970 and 18.50.990 which granted the hearing examiner the power to revoke or modify any permit, use or activity granted pursuant to the Pierce County Code or allowed pursuant to the Underlying Zone. ...10 In the review process for the proposal, Respondent was required to submit a geotechnical report to the Development Engineering Section.11 In June 1997 Respondent submitted a report prepared by David Evans and Associates, Inc., which included a description of the topography in Division I.12 The report indicated the property contained steep slopes, with the steepest slopes occurring across the southern boundary with grades ranging from 30 percent to 87 percent, approximately 100 to 150 feet in height.13 The geotechnical report also indicated that landslide and erosion hazards were moderate to severe where slopes exceeded 30 percent.14 It therefore recommended a 50-foot setback and buffers from the top of the slopes and only allowing selective clearing.15
On December 3, 1997 the Pierce County environmental official, Charles F. Kleeberg, issued a mitigated determination of nonsignificance (MDNS).16 No appeal was filed. In its findings of fact, the responsible official found that the project came within a landslide and erosion hazard area, as defined and regulated by Pierce County Code, chapter 21.14, "Geologically Hazardous Areas," and that relevant local ordinances17 allowed approval of the proposal subject to conditions in order to mitigate any probable significant adverse environmental impacts.18 The responsible official concluded that Respondent's "proposal [did] not have a probable significant impact on the environment, and an Environmental Impact Statement (EIS) [was] not required under RCW 43.21C.030(2)(c), only if the following conditions [were] met."19 Of the 12 conditions specified in the MDNS, the following conditions are relevant to this appeal:
a. Clearing within the building setback area shall be limited to removal of dead and dangerous trees and reasonable topping, clearing, and limbing for the purposes of creating view areas. Clearing below the top of the steep slope located on Lots 3 through 29 shall be prohibited, except that the applicant may selectively top, limb, or remove trees within this area to enhance view. Prior to the removal of any vegetation within this area, the applicant shall submit a clearing plan for the area to the Resource Management Development Engineering Sections of the Pierce County Planning and Land Services Department for review and approval. The purpose of the review shall be to ensure that vegetation removal in this area is strictly limited to only that reasonably necessary to provide for view areas within the lots and the removal of hazardous trees. Vegetation removal beyond this shall be prohibited.
. . . .
Condition (4) stated:22
The edge of the Oregon White Oak Preservation Area shall be clearly staked and flagged prior to and through the completion of site development and construction. Prior to final plat approval, signage denoting the Oak Preservation Area shall be erected along the boundary of the area. The type of spacing of the signage shall be determined by the Pierce County Planning and Land Services Department.
. . . .
. . . .
. . . .
The Peninsula Advisory Commission (PAC) considered the proposed preliminary plat and heard public testimony at its January 14, 1998 meeting.25 It recommended denial, citing concerns of storm water control, slope stability, and an incomplete application. However, it proposed two conditions in the event the hearing examiner approved the proposal.26 The first condition required the applicant to conduct a study for frontage road improvements along Island Boulevard. The second required a 25-foot-wide perimeter buffer along the lot lines to act as a barrier to visibility, airborne particles, glare and noise impacts.
On February 5, 1998 a public hearing was held before Hearing Examiner Stephen K. Causseaux, Jr.27 Fox Island residents raised concern about landslides in the area and submitted a geological report prepared by James P. Brazil, engineering geologist, on October 21, 1981, recommending against further tree or vegetation removal. The Pierce County Planning and Land Services Department (PALS), Hugh Taylor, presented a staff report on the proposed preliminary plat.28 He described the proposal and discussed its restrictions on clearing, testifying that "the slopes, themselves are intended to stay in a natural, undisturbed state," and barring limbing for view enhancement and removing dangerous and dead trees, "the slope is off limits for development."29 He further noted that the Oregon white oaks within the development area were protected under the county critical areas ordinance, and detailed the plans for preservation of those trees.30 In response, Joseph Quinn, attorney for Respondent, testified that clearing would stay within the limits and clearing and development would be done in accordance with the county's regulations and under the county's...
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...Wash. 421, 290 P. 1008 (1930): 19.2(7), 19.2(12)(d) HJS Dev., Inc. v. Pierce Cnty. ex rel. Dep't of Planning & Land Servs., 148 Wn.2d 451, 61 P.3d 1141 (2003): 7.3(2) Hofto v. Blumer, 74 Wn.2d 321, 444 P.2d 657 (1968): 19.2(12)(e) Hoggatt v. Flores, 152 Wn. App. 862, 218 P.3d 244 (2009): 2.......
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...81 Wn.2d 327, 501 P.2d 1228 (1972): 11.7(2)(a)(iii) HJS Dev., Inc. v. Pierce Cnty. ex rel. Dep't of Planning & Land Servs., 148 Wn.2d 451, 61 P.3d 1141 (2003): 21.9(2), 21.11(4), 21.14(3) Hoffer v. State, 110 Wn.2d 415, 755 P.2d 781 (1988): 12.7(1) Hoffman v. Regence Blue Shield, 140 Wn.2d ......
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Table of Cases
...86 Wash. 227, 149 P. 951 (1915): 18.4(5), 18.6(1) HJS Dev., Inc. v. Pierce Cnty. ex rel. Dept. of Planning and Land Servs., 148 Wn.2d 451, 61 P.3d 1141 (2003): 8.12(1) Hoberg v. City of Bellevue, 76 Wn. App. 357, 884 P.2d 1339 (1994): 8.7(3) Holbrook, Inc. v. Clark Cnty., 112 Wn. App. 354, ......
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§ 21.11 Standards of Judicial Review
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