Manke Lumber Co. v. CENT. PUGET SOUND GROWTH MANAGEMENT …
| Decision Date | 17 May 2002 |
| Docket Number | No. 26580-0-II.,26580-0-II. |
| Citation | 113 Wash. App. 615,53 P.3d 1011,113 Wn. App. 615 |
| Court | Washington Court of Appeals |
| Parties | MANKE LUMBER COMPANY, INC., a Washington corporation, and Mr. and Mrs. Warren E. Posten, Sr., Appellants, v. CENTRAL PUGET SOUND GROWTH MANAGEMENT HEARINGS BOARD, an agency of the State of Washington; Kitsap County, a Washington municipal corporation, Respondents. |
William Lynn, Attorney at Law, Tacoma, WA, Warren E. Posten, Attorney at Law, Keyport, WA, Margaret Archer, Attorney at Law, Tacoma, WA, for Appellants.
Samuel Plauche, Attorney at Law, Seattle, WA, Evelyn Sue Tanner, Deputy Pros. Attorney, Port Orchard, WA, Kitteridge Oldham, Attorney at Law Asst, Seattle, WA, Alan D. Copsey, Asst. Attorney General, Sharon Eckholm, Asst. Attorney General, Olympia, Wa, for Respondents.
James R. Schwarz, Asst. Attorney General, Olympia, WA, for Plaintiff, State Dept. of Natural Resources.
Manke Lumber Company, Inc. and Warren Posten, Sr. appeal from a superior court decision affirming a Central Puget Sound Growth Management Hearings Board determination that Kitsap County's Comprehensive Plan land designations complied with the Growth Management Act. We affirm.
This appeal involves Kitsap County's (the County) third attempt to comply with the Growth Management Act (GMA). The County's two previous attempts resulted in invalidation of its Comprehensive Plan. In the County's first attempt at complying with the GMA, the Central Puget Sound Growth Management Hearings Board (Board) invalidated the County's 1994 Comprehensive Plan (1994 Plan) in its entirety. Clerk's Papers (CP) at 604, 665 (Bremerton v. Kitsap County, CPSGMHB No. 95-3-0039c, Final Decision and Order). In the County's second attempt, the Board determined that significant portions of the County's 1996 Comprehensive Plan (1996 Plan) did not comply with the GMA and that the Plan was invalid. CP at 672, 722-23 (). Among other things, the Board invalidated the Rural Element and Land Use Element(s), including the County's land use map and rural densities. CP at 722 (Bremerton v. Kitsap County, CPSGMHB XX-X-XXXXck95-3-0039c).
After numerous public hearings and county commissioner meetings, the County adopted the 1998 Comprehensive Plan (1998 Plan) on May 7, 1998. The Board found that the 1998 Plan was in compliance with the GMA.1 It then rescinded the previous order of invalidity arising from the Bremerton case.2 CP at 737, 833 ().
Manke Lumber Company, the Department of Natural Resources (DNR), and Warren Posten, Sr. appealed the Board's final decision and order to the Kitsap County Superior Court. The superior court rejected the petitioners' arguments that the Board erred and it affirmed the Board's decision. DNR did not appeal the superior court's decision, leaving Manke and Posten as the remaining appellants.
Manke owns approximately 2,000 acres of land in Kitsap County, some of it on the banks of Hood Canal. Under the 1998 Plan, most of Manke's land is subject to the Interim Rural Forest (IRF) designation.3 The County designated 52,1574 out of a possible total of 238,559 acres in the County as IRF in its 1998 Plan (approximately 22 percent of the total amount of land in the County). The 1998 Plan defines IRF land as "larger parcels of land in contiguous blocks that are forested in character, that have been actively managed for forestry and harvested, and that are currently taxed as timber lands under state and county programs." Administrative Record (AR) at 8016.
In developing its 1998 Plan, the County completely discarded the Rural Element portion of its invalid and later repealed 1996 Plan. Instead, the County devised a new system to categorize its rural lands. Under the 1996 Plan, Manke's shoreline properties were designated Rural Wooded, which allowed a density of one dwelling unit per 1 to 2.5 acres.5 The 1998 Plan designated Manke's shoreline properties (along with approximately 50,000 additional acres) as IRF, with a density of 1 dwelling unit per 20 acres.
Manke argues that the County's designation of its shoreline properties as IRF is invalid because the County failed to consider several factors in its planning. Specifically, Manke asserts that the IRF designation of its shoreline properties was arbitrary and lacked evidentiary support. In this appeal, Manke does not challenge the general validity of the IRF designation; rather, it challenges only the applicability of the designation to its own shoreline properties.
Posten owns a parcel of land in the Keyport area on the banks of Dyes Inlet. He operates a marina, boat dock, marine repair business, parking lot, and garage. He also has a single family residence on the property. Posten's commercial activities are allowed under a 1984 unclassified use permit (UUP) and a shoreline substantial development permit (SDP).
The 1998 Plan and zoning ordinance designated all waterfront property in the Keyport area as Rural Residential. Posten's property was zoned commercial (Business General) before adoption of the 1998 Plan. The 1998 Plan and a zoning ordinance allow water-dependent and water-related uses within the shoreline via a conditional use permit (CUP)6 and SDP, regardless of the zone classification. Expansion of these uses is allowed if a CUP is obtained.
The 1998 Plan did not designate Keyport as an urban growth area (UGA). The intent was that designated UGAs would accommodate most of the projected population growth in the County over the next 20 years. Keyport was designated a UGA under the repealed 1996 Plan, but in its efforts to develop a comprehensive plan that complied with the GMA, the County deleted Keyport as a UGA.
Posten appeals Keyport's removal from a UGA designation.
We review the Board's decisions by applying the standards of the Administrative Procedure Act (APA) directly to the record before it, sitting in the same position as the superior court. King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wash.2d 543, 553, 14 P.3d 133 (2000). The party asserting that the Board erroneously interpreted or applied the law, or that the Board's decision is not supported by substantial evidence, carries the burden of demonstrating the error. King County, 142 Wash.2d at 553,14 P.3d 133; RCW 34.05.570(1)(a). We review the Board's legal conclusions de novo, giving substantial weight to its interpretation of the statutes it administers. King County, 142 Wash.2d at 553,14 P.3d 133. We review the Board's findings of facts for substantial evidence under RCW 34.05.570(3)(e). The test for substantial evidence is "`a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the order.'" King County, 142 Wash.2d at 553,14 P.3d 133 (quoting Callecod v. State Patrol, 84 Wash.App. 663, 673, 929 P.2d 510 (1997)).
A Board's order is arbitrary or capricious under RCW 34.05.570(3)(i) if it is willful, unreasoning, and issued without regard to or consideration of the surrounding facts and circumstances. City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wash.2d 38, 46, 959 P.2d 1091 (1998). A Board order issued after due consideration is not arbitrary and capricious if there is room for two opinions, even if the reviewing court deems that the record would also support a different order. City of Redmond, 136 Wash.2d at 47, 959 P.2d 1091.
Under the GMA, a county's comprehensive plan, development regulations, and amendments are presumed valid upon adoption, and the Board "shall find compliance unless it determines that the action ... is clearly erroneous in view of the entire record before the board and in light of the goals and requirements of [the GMA]." RCW 36.70A.320(3); Manke Lumber Co. v. Diehl, 91 Wash.App. 793, 803, 959 P.2d 1173 (1998), review denied, 137 Wash.2d 1018, 984 P.2d 1033 (1999). Finally, the appellant carries the burden to demonstrate a county's noncompliance with the GMA. RCW 36.70A.320(2).
Manke first contends that the Board erred in finding the County's IRF designation of rural shoreline properties did not violate the GMA. Manke characterizes the IRF designation as forest land. As such, Manke asserts that the Board should have applied the GMA definition of "forest land" to its shoreline property.7 Manke argues that IRF-designated land fits under the Resource Lands category, not the Rural Areas category.
The Board, in addressing Manke's petition, accepted the County's characterization of the IRF designation as a Rural Area density issue and not as a Resource Lands issue. On appeal, the superior court also found that "IRF designation is a rural designation[.]"8 CP at 969.
Manke argues that the County should not have been allowed to designate rural shoreline land as IRF, with its 20-acre minimum lot size requirement. Because of the 1998 Plan's presumption of validity, Manke must offer evidence to rebut that validity. RCW 36.70A.320(1), (2); King County, 142 Wash.2d at 552,14 P.3d 133. Manke asserts that nothing in the record justifies applying a 20 acre lot zone to shoreline properties, that the County failed to conduct any studies or investigations to determine the most appropriate uses for these properties and, therefore, that the blanket 20-acre zoning was arbitrary.
Manke's bare assertions fall short of rebutting the presumption. First, the GMA does not require that local governments use any particular method to develop the rural element of their comprehensive plans. As long as their plans are guided by the GMA goals and...
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