Spokane Cnty. v. E. Wash. Growth Mgmt. Hearings Bd.

• Decision Date: 31 January 2013
• Docket Number: No. 30178–8–III.,30178–8–III.
• Citation: 293 P.3d 1248
• Court: Washington Court of Appeals
• Parties: SPOKANE COUNTY, a political subdivision of the State of Washington, Headwaters Development Group, LLC, a Washington limited liability company, and Red Maple Investment Group, LLC, a Washington limited liability company, Respondents, v. EASTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD, a statutory entity, Defendant, Michael and Mary Fenke, Donald Lafferty, Leland And Darlene Lessig, David and Bobbie Masinter, Lawrence McGee, David and Barbara Shields, Bert Walkley, and Robert and Camille Watson, Appellants.

293 P.3d 1248

SPOKANE COUNTY, a political subdivision of the State of Washington, Headwaters Development Group, LLC, a Washington limited liability company, and Red Maple Investment Group, LLC, a Washington limited liability company, Respondents,

v. EASTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD, a statutory entity, Defendant,Michael and Mary Fenke, Donald Lafferty, Leland And Darlene Lessig, David and Bobbie Masinter, Lawrence McGee, David and Barbara Shields, Bert Walkley, and Robert and Camille Watson, Appellants.

No. 30178–8–III.

Court of Appeals of Washington, Division 3.

Jan. 31, 2013.

Salvador Alejo Mungia II, Gordon Thomas Honeywell, Tacoma, WA, for Appellants.

Marc Worthy, Office of the Attorney General, Seattle, WA, for Defendant.

David W. Hubert, Attorney at Law, Spokane, WA, Stacy A. Bjordahl, Parsons/Burnett/Bjordahl/Hume, LLP, Spokane, WA, for Respondents.

SIDDOWAY, A.C.J.

¶ 1 Opponents of a 2009 amendment to Spokane County's comprehensive plan ask us to reverse the superior court and reinstate a decision of the Eastern Washington Growth Management Hearings Board that invalidated the amendment. The growth board concluded that the prospect of future inadequate public facilities presented by the amendment created an immediate inconsistency with the comprehensive plan and declared the amendment invalid. Spokane County had relied on development regulations that would safeguard adequate facilities at the project approval stage.

¶ 2 Where an amendment to a comprehensive plan is otherwise consistent with plan goals and policies and the local government has protected against a prospect of future inadequate public facilities by enforceable ordinances or regulations requiring concurrency, there is no inconsistency that violates RCW 36.70A.070. On that basis, and because Spokane County demonstrated the insufficiency of evidence to support other findings of the growth board, we affirm the trial court's reversal of the growth board's final decision and order of invalidity. We reverse its conclusion that the growth board lacked jurisdiction to decide the petition.

FACTS AND PROCEDURAL BACKGROUND

¶ 3 Headwaters Development Group LLC and Red Maple Investment Group LLC (hereafter collectively Headwaters) own a five-acre parcel of land in the Wandermere area of Spokane County (County). The parcel is located directly east of the Wandermere shopping center, a short distance south of the Wandermere golf course, and immediately west of an approved subdivision of 330 single family residences known as Stone Horse Bluff. It falls within the Urban Growth Area (UGA) designated by the County. The parcel was zoned low density residential (LDR) before 2009 and designated LDR on the land use map included in the County's comprehensive plan. LDR zoning restricts development to six dwellings per acre.

¶ 4 In March 2009, Headwaters submitted an application requesting that the County change the parcel's comprehensive plan designation and its zoning classification from LDR to high density residential (HDR) as part of the County's annual comprehensive plan review.¹ Headwaters' purpose in requesting the map amendment was to facilitate its proposed development of a 120–unit, multifamily apartment complex on the parcel.

¶ 5 The County's planning staff processes public requests for its annual plan amendment by circulating applications and environmental checklists required by SEPA ² to affected agencies and jurisdictions for comment, in anticipation of preparing its own analysis for the benefit of county commissioners. In the case of the Headwaters application, which was denominated 09–CPA–01, county planning staff identified a number of relevant goals and policies of the comprehensive plan that it found were largely served by the map amendment.

¶ 6 The planning staff described the parcel as a slightly sloped, sparsely treed parcel located west of and adjacent to Dakota Street, approximately one-quarter mile north of its intersection with Hastings Road. It noted that urban level services are typically available in the UGA and that staff received no comments from service providers to indicate that services were not available at the site.

¶ 7 It reported that property to the west of the parcel was zoned Regional Commercial, was designated as an Urban Activity Center by the comprehensive plan, and was developing as a shopping center. It pointed out that if the zoning and designation of Headwaters' parcel was changed to HDR, it would be developable for a larger variety of housing types and prices, provide affordable housing, permit compact residential development and mixed-use development, and allow for residential uses in business zones—all goals or policies of the urban land use and housing elements of the comprehensive plan.

¶ 8 Staff noted that the zoning to the north, south, and east was LDR, with single family residences and duplexes to the south and north and the recently approved Stone Horse Bluff residential subdivision to the east. It pointed out that multifamily development of the sort envisioned by Headwaters “is typically viewed as a good transition from high intensity commercial uses to low intensity uses such as single family neighborhoods.” Administrative Record (AR) at 501.

¶ 9 Finally, recognizing that the only existing access to the parcel was Dakota Street—only three-quarters of a mile long, a local access street, and with no sidewalks—and that a 120–unit apartment complex would result in a projected increase of 960 to 1,050 car trips per day, staff pointed out that “[w]hen a specific project is proposed, the County Engineering Department will require the applicant to submit a detailed traffic analysis so that a determination can be made as to what the appropriate mitigation measures may be.” AR at 503. It noted that comments had been received back from the County's Division of Engineering and Roads identifying road and traffic-related conditions of approval to be imposed, should the amendment be approved by the county commissioners.

¶ 10 The Division of Engineering and Roads' proposed conditions of approval stated that road construction plans would have to comply with county road standards and cautioned that “mitigation may be required for off-site improvements.” AR at 512 (Condition 10). The conditions of approval also stated that

[t]he Spokane County Engineer will review this project for transportation concurrency requirements at the time of review of a Land Use Application, when the project is defined with a specific use.

Id. (Condition 11).

¶ 11 After the deadline for agency comments on proposed amendments had passed, Headwaters and the County became aware that a significant access that Headwaters assumed would be available in the future from Wandermere Road, the major arterial serving the shopping center to the west, would not be. The Washington Department of Transportation controls access to the road and would not approve access to Headwaters' parcel. That left the Headwaters parcel served by only Dakota Street and any future connections developed into the Stone Horse Bluff subdivision to the east.

¶ 12 A number of neighboring property owners and residents lodged their opposition to proposed amendment 09–CPA–01. They expressed concern that Headwaters' projected development was incompatible with the low density residential development that had been in the Dakota Street area since the 1970s. They contended that Dakota Street already faced impacts from the Stone Horse Bluff subdivision, with a key impact being on ingress and egress to Hastings Road, which provides access to the county roadway network at Dakota Street's south end.

¶ 13 Members of the planning commission unanimously recommended denial of proposed amendment 09–CPA–01 “based primarily on traffic issues.” AR at 570. In its findings of fact and recommendation, the planning commission expressed its view that, in general, HDR zoning made a good transitional use between the regional commercial uses and single family residential uses adjacent to Headwaters' parcel. But in the case of proposed plan amendment 09–CPA–01, it saw conflicts with “access and compatibility with existing neighborhood character.” AR at 573. The planning commission unanimously concluded that the proposed amendment was inconsistent with four comprehensive plan goals or policies (UL.2.16, UL.7, T.2, and T.2.2).

¶ 14 The planning commission's recommendation was passed on to the County's board of county commissioners, which conducted several public hearings to address the proposals for inclusion in the 2009 amendment to its comprehensive plan. At the conclusion of its hearings, the county commissioners rejected the planning commission's recommendation to deny amendment 09–CPA–01 and instead approved it by a two-to-one vote, finding that

the subject property is adjacent to a commercial land use designation and commercial development to the west and a residential land use designation to the east and residential development to the east and provides a transition buffer between said land use designations consistent with the Comprehensive Plan Goals and Policies cited in the Division of Building and Planning Staff report.

AR at 12–13 (Finding 10).

¶ 15 The commissioners' findings of fact and decision noted that amendment 09–CPA–01 was “subject to substantial public testimony i[n] opposition to the proposed amendment due to potential traffic impacts” but found that

traffic impacts are properly addressed at the project level review consistent with the concurrency provision of Chapter 13.650 of Spokane County Code. Compliance with the concurrency provisions of Spokane County Code may result in a project with less traffic impacts than those allowed by maximum use of the site under the [HDR] zone and traffic mitigation measures will be commensurate with actual development.

Id.

¶ 16 Neighbors and property owners opposed to amendment 09–CPA–01 filed a petition for review with the ...