Peste v. Mason County

• Court: Washington Court of Appeals
• Writing for the Court: Van Deren
• Citation: Peste v. Mason County, 136 P.3d 140, 133 Wn. App. 456 (Wash. App. 2006)
• Decision Date: 14 June 2006
• Docket Number: No. 33437-2-II.
• Parties: Lillian M. PESTE, Individually, Lillian M. Peste, Sharon Johnston, and Bank of America, Trustees of the Fred G. Peste Testamentary Trust, Appellants, v. MASON COUNTY, Respondent.

136 P.3d 140

133 Wn. App. 456

Lillian M. PESTE, Individually, Lillian M. Peste, Sharon Johnston, and Bank of America, Trustees of the Fred G. Peste Testamentary Trust, Appellants, v. MASON COUNTY, Respondent.

No. 33437-2-II.

Court of Appeals of Washington, Division 2.

June 14, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Elmer Robert Fristoe, Don W. Taylor, Attorneys at Law, Olympia, WA, for Appellants.

T.J. Martin, Mason County Prosecutor's Office, Shelton, WA, for Respondent.

VAN DEREN, J.

¶ 1 Lillian M. Peste, Sharon Johnston, and Bank of America, as trustee of the Fred G. Peste Trust, and Lillian M. Peste, individually (collectively Peste), appeal Mason County's denial of a rezone request. Peste asserts that (1) Mason County's comprehensive plan and development regulations are void because Mason County adopted them without complying with statutory notice and public participation procedures; (2) Mason County's comprehensive plan and development regulations violate Peste's substantive due process rights; (3) Mason County's comprehensive plan and development regulations constitute a regulatory taking of estate property; and (4) substantial evidence does not support the Mason County Board of Commissioners' (Board) findings. We affirm.

BACKGROUND

A. PROCEDURAL FACTS

¶ 2 In 1997, Peste filed a plat application for land located in Mason County. The application is not part of the record on appeal. It is not clear from the record what happened to the plat application. Peste states that the County never acted on it. The record does not contain a description of the plat application boundaries, but at oral argument before us, it was described as some portion of "Section 21" owned by Peste.¹

¶ 3 In 2001, Peste requested that the Mason County Planning Department (Planning Department) and the Board rezone two parcels of property to allow for an increased residential density.² On March 2 and 9, 2004, the Board held public hearings to determine whether to grant Peste's rezone request. After testimony by interested parties, the Board denied the request. Peste timely appealed the Board's decision to the Mason County Superior Court under the Washington Land Use Petition Act (LUPA).³ The trial court affirmed the Board's decision.

B. ADOPTION OF MASON COUNTY'S COMPREHENSIVE AND DEVELOPMENT REGULATIONS

¶ 4 The legislature enacted the Growth Management Act (GMA), RCW 36.70A.010.902 to minimize the threats unplanned growth poses to the environment, economic development, and public welfare. RCW 36.70A.010. The GMA's goals include reducing sprawl, encouraging development in areas already characterized by urban development, preserving open spaces and the environment, and encouraging availability of affordable housing. See RCW 36.70A.020.

¶ 5 The GMA requires that communities adopt comprehensive land use plans (CPs) and development regulations (DRs) in accordance with the GMA to implement the statute's broad goals. RCW 36.70A.040. Although the GMA affords local governments wide latitude and discretion in creating their CPs and DRs according to local needs, growth patterns, and resources, they must still comply with certain requirements set forth in the GMA. Diehl v. Mason County, 94 Wash.App. 645, 650, 972 P.2d 543 (1999).

¶ 6 After a long process of public hearings and meetings between municipalities and local groups, Mason County adopted its CP and DRs in April 1996. Diehl, 94 Wash.App. at 650, 972 P.2d 543. Following a successful challenge to the CP's adequacy before the Western Washington Growth Management Hearings Board (Growth Board) in December 1996, Mason County undertook to amend its CP and accompanying DRs to bring them into compliance with the GMA. The Growth Board issued a series of compliance orders over the next seven years determining which amendments brought Mason County's CP and DRs closer to compliance with the GMA.

¶ 7 In compliance orders dated December 15, 2000, and March 1, 2001, the Growth Board concluded that the Mason County CP and DRs adequately established development densities for the county's rural areas. Finally, on November 12, 2003, the Growth Board determined that Mason County's CP and DRs were in substantial compliance with the GMA.

C. PESTE'S REZONE REQUEST

¶ 8 The Section 21 property consists of two adjacent parcels totaling 556.6 acres. The Section 21 property was designated Rural Residential 5 (RR 5) in the county's original April 1996 CP. But following numerous amendments that brought Mason County's CPs and DRs into compliance with the GMA, Section 21 is now located in a Mason County rural area with a designated residential density of one dwelling unit per 20 acres.⁴ Rural Residential 20 (RR 20) properties surround the Section 21 property on the east, west, and south.⁵ RR 5 properties neighbor it to the north and southeast.⁶

¶ 9 On May 9, 2001, Peste requested that the Planning Department and the Board rezone the Section 21 property from a RR 20 designation to a RR 5 designation. On April 12, 2002, the Mason County Department of Community Development (MCDCD) informed Peste that it had not yet processed Peste's request because the County was first addressing its GMA noncompliance issues.

¶ 10 The Mason County Planning Advisory Commission (Commission) held public hearings to consider Peste's rezone requests on October 20, 2003, and December 15, 2003. Against MCDCD's recommendation that Peste's request be denied, the Commission recommended that the Board approve a compromise to rezone the Section 21 property from an RR 20 designation to a Rural Residential 10⁷ (RR 10) designation.

¶ 11 The Board held public hearings to determine whether to grant Peste's rezone request on March 2 and 9, 2004. The Board concurred with the MCDCD's recommendation, rejected the Commission's proposed compromise, and denied Peste's rezone request. The Board entered findings of fact regarding its decision, explaining that Peste's rezone request did not conform with Mason County's CP. The Board specifically concluded that Peste's proposal did not meet any of Mason County's "rezone criteria" outlined in DR 1.05.080.

¶ 12 Peste appealed the Board's decision to the Mason County Superior Court under LUPA, chapter 36.70C RCW. The trial court affirmed the Board's decision in an order and accompanying memorandum opinion on June 9, 2005.

¶ 13 Peste appeals, arguing that (1) Mason County's CP and DRs are void because Mason County adopted them without complying with statutory notice and public participation procedures; (2) Mason County's CP and DRs violate Peste's substantive due process rights; (3) Mason County's CP and DRs constitute a regulatory taking of the Section 21 property; and (4) substantial evidence does not support the Board's findings.

ANALYSIS

A. STANDARDS OF REVIEW

¶ 14 LUPA governs judicial review of land use decisions. RCW 36.70C.030. When reviewing a land use decision, we stand in the same position as the superior court and limit our review to the administrative record before the Board. Pavlina v. City of Vancouver, 122 Wash.App. 520, 525, 94 P.3d 366 (2004); Citizens for Responsible & Organized Planning v. Chelan County, 105 Wash.App. 753, 758, 21 P.3d 304 (2001). We may grant relief from a land use decision only if the party seeking relief has carried the burden of establishing that one of the following standards is met:

(a) The body or officer that made the land use decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless;

(b) The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise;

(c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court;

(d) The land use decision is a clearly erroneous application of the law to the facts;

(e) The land use decision is outside the authority or jurisdiction of the body or officer making the decision; or

(f) The land use decision violates the constitutional rights of the party seeking relief.

RCW 36.70C.130(1)(a-f).

¶ 15 Standards (a), (b), (e), and (f), present questions of law we review de novo. Cingular Wireless, LLC v. Thurston County, 131 Wash.App. 756, 768, 129 P.3d 300 (2006) (citing HJS Dev., Inc. v. Pierce County, 148 Wash.2d 451, 468, 61 P.3d 1141 (2003)). Standard (c) concerns a factual determination that we review for substantial evidence. Cingular Wireless, 131 Wash.App. at 768, 129 P.3d 300.

¶ 16 The clearly erroneous test under (d) involves applying the law to facts. Cingular Wireless, 131 Wash.App. at 768, 129 P.3d 300 (citing Citizens to Pres. Pioneer Park, LLC v. The City of Mercer Island, 106 Wash.App. 461, 24 P.3d 1079 (2001)).

¶ 17 Before filing a LUPA petition, the petitioner must first exhaust administrative remedies to the extent required by law. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wash.2d 169, 177, 4 P.3d 123 (2000) (citing RCW 36.70C.060).

B. NOTICE AND PUBLIC PARTICIPATION

¶ 18 Peste argues that (1) in adopting its CP and DRs, Mason County did not comply with the notice and public participation procedures of RCW 35.63.100, 36.70A.035, and 36.70A.390; and (2) consequently, because Mason County had to strictly comply with those statutory procedures, the County's CP and DRs and all amendments are void.

¶ 19 Mason County responds that its CP and DRs are presumed valid; that Peste failed to timely appeal the adoption of the CP and DRs; that strict compliance with the GMA's notice procedures is not required; and that Peste's challenge is an unlawful collateral attack on its CP.

¶ 20 Peste's argument fails for several reasons. First, we are not the appropriate tribunal to review Peste's notice challenge. RCW 36.70C.030(1)(a)(ii) states that LUPA does not apply to judicial review of land use decisions that are subject to review by a quasi-judicial body...