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

• Citation: 176 Wash.App. 555,309 P.3d 673
• Decision Date: 10 September 2013
• Docket Number: No. 30725–5–III.,30725–5–III.
• Court: Court of Appeals of Washington
• Parties: SPOKANE COUNTY, a political subdivision of the State of Washington, Appellant, v. EASTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD, a statutory entity, and Kasi Harvey–Jarvis, Dan Henderson, Larry Kunz, McGlades, Inc., Neil Membrey, and Neighborhood Alliance of Spokane, Respondents.

176 Wash.App. 555

309 P.3d 673

SPOKANE COUNTY, a political subdivision of the State of Washington, Appellant,

v.EASTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD, a statutory entity, and Kasi Harvey–Jarvis, Dan Henderson, Larry Kunz, McGlades, Inc., Neil Membrey, and Neighborhood Alliance of Spokane, Respondents.

No. 30725–5–III.

Court of Appeals of Washington,

Division 3.

Sept. 10, 2013.

David W. Hubert, Attorney at Law, Spokane, WA, for Appellant.

Richard Kirk Eichstaedt, Center for Justice, Frederick Joseph Dullanty Jr., Attorney at Law, Nathan Graham Smith, Attorney at Law, Spokane, WA, for Respondents.

Diane L. McDaniel, Attorney at Law, Olympia, WA, for Other Parties.

BROWN, J.

[176 Wash.App. 561]¶ 1 Spokane County appeals for the second time an Eastern Washington Growth Management Hearings Board decision that invalidated the County's planning actions in amendment 07–CPA–05. See Spokane County v. E. Wash., Growth Mgmt. Hr'gs Bd. (Spokane County I), 160 Wash.App. 274, 250 P.3d 1050,review denied,171 Wash.2d 1034, 257 P.3d 662 (2011) (holding the hearings board had subject matter jurisdiction to review amendment 07–CPA–05). The hearings board decided the County had failed to comply with the Growth Management Act (GMA), chapter 36.70A RCW, and the State Environmental Policy Act (SEPA), chapter 43.21C RCW, when it adopted amendment 07–CPA–05. The superior court affirmed on remand from Spokane County I.

¶ 2 Although Spokane County I explained the hearings board's jurisdiction extended to both the comprehensive plan amendment and the concurrent rezone, the County asserts the hearings board lacks jurisdiction over the rezone. Specifically, the County contends the hearings board lacked authority to review the rezone because it is a site-specific land use decision within the superior court's exclusive jurisdiction under the Land Use Petition Act (LUPA), chapter 36.70C RCW. We again reject this contention because the rezone was not authorized by the then-existing comprehensive plan, but rather implements the comprehensive plan amendment, over which the hearings board had jurisdiction. Additionally, we reject the County's contentions that the hearings board's decision fails to accord proper deference, lacks substantial evidence, erroneously interprets and applies the law, and is arbitrary and capricious. Accordingly, we affirm.

FACTS

¶ 3 In December 2004, McGlades LLC purchased a 4.2 acre land parcel in Spokane County, on which the prior owners had operated a produce store that did not conform to the property's Urban Reserve zone designation. In June 2005, McGlades obtained building and restaurant permits, and expanded its nonconforming use into a market and bistro. McGlades soon applied unsuccessfullyfor a conditional use permit, requesting further expansion to include an asphalt driveway and drive-through espresso service, asphalt parking lot with spaces for 39 vehicles, outdoor dining and entertainment with seating for 64 patrons, and on-site alcohol consumption. McGlades then proposed amendments to the County's comprehensive plan map and zoning map that would change the property's comprehensive plan category and zone designation to Limited Development Area (Commercial). In July 2006, while the County contemplated the proposal, McGlades obtained a temporary use permit and presumably began expansion. But McGlades soon closed its business when the temporary use permit expired in January 2007. McGlades does not participate in this second appeal. The facts are unchanged from Spokane County I, 160 Wash.App. at 278–80, 250 P.3d 1050.

¶ 4 In September 2007, the County issued a SEPA environmental checklist and corresponding determination of nonsignificance for McGlades's proposal and seven others. The County concluded SEPA did not require environmental impact statements because the proposals presented “no probable significant adverse impacts.” Administrative Record (AR) at 59, 63. Specifically, the County characterized the proposals as nonproject actions, leaving much of the required environmental analysis “[t]o be determined if site specific developments are proposed.” AR at 43. Neighboring landowners Dan Henderson, Larry Kunz, and Neil Membrey unsuccessfully appealed the County's threshold determination to the County Hearing Examiner.

¶ 5 On December 21, 2007, the Board of County Commissioners passed Resolution 07–1096, adopting McGlades's proposal along with seven others during the annual comprehensive plan amendment cycle. The resolution incorporated McGlades's proposal as amendment 07–CPA–05. Neighboring landowners Kasi Harvey–Jarvis, Dan Henderson, Larry Kunz, and Neil Membrey, along with the Neighborhood Alliance of Spokane (collectively the Neighbors), successfully appealed the resolution to the hearings board. The hearings board decided (1) amendment 07–CPA–05 designateda new Limited Area of More Intensive Rural Development (LAMIRD) without observing applicable GMA requirements, (2) the environmental checklist was inadequate under SEPA because it did not fully disclose or carefully consider amendment 07–CPA–05's probable long-term effects, and (3) amendment 07–CPA–05 is invalid because its continued validity would substantially interfere with fulfilling the GMA's goals of promoting urban growth, reducing sprawl, and protecting the environment.

¶ 6 The superior court reversed the hearings board's decision upon the County's appeal and this court reversed the superior court's decision upon the Neighbors' appeal. Spokane County I, 160 Wash.App. 274, 250 P.3d 1050. On remand, the superior court affirmed the hearings board's decision. The County again appealed to this court.

REVIEW STANDARD

¶ 7 We review a hearings board decision under the Administrative Procedure Act (APA), chapter 34.05 RCW. Feil v. E. Wash. Growth Mgmt. Hr'gs Bd., 172 Wash.2d 367, 376, 259 P.3d 227 (2011); seeRCW 34.05.510. We apply APA standards directly to the hearings board record, performing the same function as the superior court. City of Redmond v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 136 Wash.2d 38, 45, 959 P.2d 1091 (1998); seeRCW 34.05.526. The party challenging the hearings board decision (here the County) bears the burden of proving it is invalid. RCW 34.05.570(1)(a). The decision is invalid if it suffers from at least one of nine enumerated infirmities. RCW 34.05.570(3). We must grant relief from the decision if, as relevant here:

(b) The order is outside the statutory authority or jurisdiction of the agency conferred by any provision of law;

(c) The agency has engaged in unlawful procedure or decision-making process, or has failed to follow a prescribed procedure;

d) The agency has erroneously interpreted or applied the law; (e) The order is not supported by evidence that is substantial when viewed in light of the whole record ...; [or]

....

(i) The order is arbitrary or capricious.

RCW 34.05.570(3)(b)-(e), (i).

¶ 8 Our review is de novo under RCW 34.05.570(3)(b) through (d), determining whether the decision contains a legal error. Kittitas County v. E. Wash. Growth Mgmt. Hr'gs Bd., 172 Wash.2d 144, 155, 256 P.3d 1193 (2011). We accord a hearings board's interpretation of the GMA “substantial weight.” King County v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 142 Wash.2d 543, 553, 14 P.3d 133 (2000). But the interpretation does not bind us. City of Redmond, 136 Wash.2d at 46, 959 P.2d 1091.

¶ 9 We apply the substantial evidence review standard to challenges under RCW 34.05.570(3)(e), determining whether there exists “ ‘a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the order.’ ” City of Redmond, 136 Wash.2d at 46, 959 P.2d 1091 (quoting Callecod v. Wash. State Patrol, 84 Wash.App. 663, 673, 929 P.2d 510 (1997)). We view the evidence “in the light most favorable to ... ‘the party who prevailed in the highest forum that exercised fact-finding authority.’ ” City of Univ. Place v. McGuire, 144 Wash.2d 640, 652, 30 P.3d 453 (2001) (quoting State ex rel. Lige & Wm. B. Dickson Co. v. County of Pierce, 65 Wash.App. 614, 618, 829 P.2d 217 (1992)). Doing so “ ‘necessarily entails accept[ing] the factfinder's views regarding the credibility of witnesses and the weight to be given reasonable but competing inferences.’ ” Id. (quoting Lige & Wm. B. Dickson Co., 65 Wash.App. at 618, 829 P.2d 217).

¶ 10 We apply the arbitrary and capricious review standard to challenges under RCW 34.05.570(3)(i), determining whether the decision constitutes “ ‘willful and unreasoning action, taken without regard to or consideration of the facts and circumstances surrounding the action.’ ” City of Redmond, 136 Wash.2d at 46–47, 959 P.2d 1091 (quoting Kendall v. Douglas, Grant, Lincoln & Okanogan Counties Pub. Hosp. Dist. No. 6, 118 Wash.2d 1, 14, 820 P.2d 497 (1991)). “ ‘Where there is room for two opinions, an action taken after due consideration is not arbitrary and capricious even though a reviewing court may believe it to be erroneous.’ ” Id. at 47, 959 P.2d 1091 (quoting Kendall, 118 Wash.2d at 14, 820 P.2d 497).

ANALYSIS

A. Law of the Case

¶ 11 The Neighbors argue Spokane County I precludes the County's contention that the hearings board lacked subject matter jurisdiction over the rezone. The County responds Spokane County I solely decided the hearings board had jurisdiction over the comprehensive plan amendment. We agree with the Neighbors but, as explained below, we choose to clarify the principles we established in Spokane County I.

¶ 12 “The law of the case doctrine provides that once there is an appellate court ruling, its holding must be followed in all of the subsequent stages of the same litigation.” State v. Schwab, 163 Wash.2d 664, 672, 185 P.3d 1151 (2008) (citing Roberson v. Perez, 156 Wash.2d 33, 41, 123 P.3d 844 (2005)). Thus, “ ‘questions determined on appeal, or which might have been determined had they been presented, will not again be considered on a subsequent appeal if...