Pinecrest Homeowners Ass'n v. GLEN A. CLONINGER & ASS'N

• Decision Date: 15 April 2004
• Docket Number: No. 73729-1.,73729-1.
• Citation: 151 Wash.2d 279,87 P.3d 1176
• Court: Washington Supreme Court
• Parties: PINECREST HOMEOWNERS ASSOCIATION; Rockwood Neighborhood Council and its President, Pam Behring; Josh Burrows, an individual; John and Diane Scelfo, a marital community; Tighe and Marybeth Smith, a marital community; Dale and Carol Ruemping, a marital community; Brian and Tanya Rekofke, a marital community; Steve and Marty Schmauch, a marital community; Andrew Boulet, an individual; Barbara McGann, an individual; and Del and Maggie Schueneman, a marital community, Respondents, v. GLEN A. CLONINGER & ASSOCIATES, Petitioner, and The City of Spokane, a municipal corporation of the State of Washington, Defendant.

87 P.3d 1176

151 Wash.2d 279

PINECREST HOMEOWNERS ASSOCIATION; Rockwood Neighborhood Council and its President, Pam Behring; Josh Burrows, an individual; John and Diane Scelfo, a marital community; Tighe and Marybeth Smith, a marital community; Dale and Carol Ruemping, a marital community; Brian and Tanya Rekofke, a marital community; Steve and Marty Schmauch, a marital community; Andrew Boulet, an individual; Barbara McGann, an individual; and Del and Maggie Schueneman, a marital community, Respondents, v. GLEN A. CLONINGER & ASSOCIATES, Petitioner, and The City of Spokane, a municipal corporation of the State of Washington, Defendant.

No. 73729-1.

Supreme Court of Washington, En Banc.

April 15, 2004.

Joseph Paul Delay, Delay, Curran, Thompson, Pontarolo & Walker, Michael Joseph

Piccolo, Michael F. Connelly, City Attorney, Spokane, for Petitioner.

Stanley Martin Schwartz, Stacy A. Bjordahl, Frederick Joseph Dullanty, Witherspoon, Kelley, Davenport & Toole, P.S., Spokane, for Respondents.

OWENS, J.

The Spokane City Council (City Council) determined that the rezone application of developer Glen A. Cloninger Associates (Cloninger) could be processed prior to the drafting and enactment of a specific zoning ordinance called for in an immediately effective amendment of the Spokane City Comprehensive Plan. The superior court upheld the City Council's land use decision, but the Court of Appeals then reversed it, prompting Cloninger's petition for review. We reverse the Court of Appeals and affirm, as the superior court did, the City Council's decision.

FACTS

Cloninger owns an eight-acre parcel of property located on the northeast corner of Napa Street and 29th Avenue in the Lincoln Heights area of Spokane. In 1991, the property was rezoned from multifamily to RO-1L (Limited Residential Office, Category I),¹ permitting Cloninger to develop the parcel as an office park. In May 1992, the City Council passed a resolution allowing restaurants in office parks of five acres or more on sites covered by the Lincoln Heights Neighborhood Specific Plan, a part of the Spokane City Comprehensive Plan. Because building a restaurant on the site also required a rezone to RO-L (Limited Residential Office, Category II),² Cloninger applied for the rezone, which was granted on April 8, 1993. Cloninger built the restaurant (on the southeast corner of the site) but deferred development of the office park.

In October 1996, Cloninger applied for an amendment to Land Use Policy 6 of the Lincoln Heights Neighborhood Specific Plan to permit office developments of at least five acres to qualify for mixed use development— that is, development that combines residential, office, and retail uses. Cloninger's proposed development involved a lower level of retail with a second level of office space and, above that, multifamily housing. The City Council passed Resolution 98-69 on September 21, 1998, approving the amendment. With the addition of subsection h) and its 14 governing concepts, Land Use Policy 6 was amended to read as follows:

POLICY 6: Allow low-rise office use along 29th Avenue, as designated on the Land Use Plan Map, subject to the following criteria:

a) Developments should extend generally no more than one block in depth from 29th Avenue.

b) The minimum site area for office development should be two acres.

c) Building height should be limited to 30 feet.

d) Access to developments should be from existing curb cuts on 29th Avenue, not from streets serving residential areas.

e) If a site is not separated from a single family residential area by a street, then increased building and parking setbacks and landscaping should be provided.

f) Rezone proposals should be processed under the P.U.D. [planned unit development] provisions of the zoning code.

g) Restaurants are allowed in areas designated MDR/O [medium density residential office] on the Land Use Plan map, providing that restaurants be developed in conjunction with P.U.D. of five acres or more.

h) Allow large developments (five acres or more) to qualify for the "Design" zone designation in accordance with the provisions of SMC 11.19.2405.A, which allows mixed use developments that include specific land uses. Proposals that qualify for the mixed use designation and incorporate mixed uses in a comprehensive site development should demonstrate compliance with the following concepts:

1. To enable development of integrated, mixed use communities, containing a variety of housing types arranged around an activity center (neighborhood, district, corridor); that provide a pleasant living, shopping, and working environment; that provide a sense of community; and that provide a balance of compatible retail, office, residential, recreational and public uses.

2. To enable a land use pattern that will reduce dependence on automobile use, especially drive-alone vehicle use during morning and evening commute hours.

3. To enable the design of new development in a manner that will ensure the safe and efficient movement of goods and people.

4. To provide direct, convenient pedestrian, bicycle and vehicular access between residences and nearby activity centers, in order to facilitate pedestrian and bicycle travel and reduce the number and length of automobile trips.

5. To discourage automobile dominated businesses, which are characterized by drive-in and drive-through facilities that allow people to remain in their vehicles while receiving products or services, and uses that traditionally require large amounts of off-street parking.

6. To provide sufficient housing density to enable cost-effective extension of utilities, services, and streets; facilitate frequent transit service; and to help sustain neighborhood businesses.

7. To enable many of the community's residents to live within one-fourth (1/4) mile of a grocery store and transit stop.

8. To ensure that activity centers are arranged, scaled and designed to be compatible with surrounding land uses and provide transitions between significantly different land uses (e.g. commercial and residential uses).

9. To ensure that buildings and other development components are arranged, designed and oriented to facilitate pedestrian access and access for transit.

10. To allow innovative site and building designs while providing for design harmony and continuity (e.g., coordinated architectural styles, street trees, lighting, signage and benches).

11. To ensure adequate light, air, privacy and readily accessible open space for each dwelling unit in order to maintain public health, safety and welfare.

12. To provide for appropriately located community open spaces for informal social activity, recreation and aesthetic enhancement of the development.

13. To provide mixed use development with a character that is less physically and visually intrusive than traditional commercial centers, districts and strips.

14. To insure the mixed use development does not undermine the buffer concept described in subsection e of this policy.

Certified Record (CR) § IX, at 260-62. Specifically deleted from the draft of Resolution 98-69 was a paragraph stating that the resolution would "not take effect until the effective date of the ordinance that creates the zoning category referenced herein (new SMC 11.19.2405) and the effective date of the ordinance/resolution that establishes the design review criteria for use by the Design Review Committee in reviewing mixed use development proposals." CR § IX, at 262. The purpose of the deletion was to enable "the resolution [to] take effect upon adoption." CR § IX, at 311.

Cloninger wrote letters to the city in February and March 2000. John Mercer, director of the city planning services, responded on May 1, 2000. Mercer's letter summarized the process that had culminated in the passage of Resolution 98-69. He acknowledged that Cloninger's "project site [was] designated Medium Density Residential/Office on the Lincoln Heights Neighborhood Specific Plan." CR § IX, at 6. He surmised that the City Council decision to make Resolution 98-69 immediately effective (prior to the adoption of new zoning and design guidelines) showed that the City Council's "intent was to allow the use of the existing `Design' zone which most closely fits the adopted policies," and he stated that, "[i]n this case RO-1D provides for mixed use development."³ In closing, Mercer gave Cloninger three options. The second and third options were for Cloninger to develop his property under its current zoning or to wait for the completion of the new comprehensive plan and development regulations; his first option, however, was as follows: "Apply for a rezone of your property to the RO-1D zone. This may also necessitate a request on your part for a revision of your approved PUD as well as application for Special Permits for the B-1 uses you choose to include pursuant [to] the provisions of SMC 11.19.249." Id. Mercer reminded Cloninger that his rezone application would be reviewed by a hearing examiner who would "consider the policies of the existing Comprehensive Plan and Lincoln Height[s] Neighborhood [Specific] Plan (not just amended Land Use Policy 6), other state and city regulations, and relevant information received through the public hearing process." Id. In a June 23, 2000, letter to an attorney requesting information on the Cloninger project, Mercer reaffirmed that first option: "While mixed use regulations have yet to be adopted, a property owner may still submit an application for a rezone under existing zoning regulations for design districts under SMC 11.19.241-11.19.2496." CR § IX, at 302.

Electing the first option, Cloninger applied for a rezone from RO-L to RO-1D, a revision of his existing PUD, and a special permit to allow B1 uses per SMC 11.19.249. On July 26, 2000, the city design review committee voted 7-0 with one abstention to recommend approval of the PUD amendment and special permit, subject to Cloninger's "more fully...