Stafne v. Snohomish County

• Decision Date: 06 July 2010
• Docket Number: No. 62843-7-I.,62843-7-I.
• Citation: 234 P.3d 225,156 Wash.App. 667
• Court: Washington Court of Appeals
• Parties: Scott E. STAFNE, Appellant,v.SNOHOMISH COUNTY and Snohomish County Planning Department, Respondents.

156 Wash.App. 667

234 P.3d 225

Scott E. STAFNE, Appellant,v.SNOHOMISH COUNTY and Snohomish County Planning Department, Respondents.

No. 62843-7-I.

Court of Appeals of Washington Division 1.

May 24, 2010.

As Amended July 6, 2010.

Publication Ordered July 6, 2010.

Scott Stafne, Granite Falls, WA, for Appellant.

Bree Urman, Laura Kisielius, Snohomish Cty. Pros. Office Civil Division, Everett, WA, for Respondents.

SCHINDLER, J.

¶ 1 Scott Stafne appeals dismissal of his lawsuit challenging the Snohomish County Council's decision to reject his proposal to rezone a portion of the property he owns in Twin Falls Estates from Commercial Forest Land (CFL) to Low Density Rural Residential (LDRR) and to amend the comprehensive plan land use map. Stafne asserts the Council erroneously rejected his request to change the zoning designation in violation of the Snohomish County Code. Stafne also appeals the denial of his cross motion for partial summary judgment. Stafne argues that as a matter of law, the County's previous decision to grant a boundary line adjustment changed the zoning on the portion of his property zoned CFL to LDRR. We affirm the trial court's decision to dismiss the lawsuit and deny summary judgment.

FACTS

The Twin Falls Property

¶ 2 In 1992, Twin Falls, Inc. acquired approximately 180 acres of land in Snohomish County from Three Rivers Timber Company. The property was logged under forest practice permits issued by the Department of Natural Resources (DNR) and was classified in a timber tax category. The property contains waterfalls, two lakes, steep cliffs, and pockets of noncommercial forest land. Twin Falls intended to develop the property for low density residential and recreational use. Twin Falls segregated the property into 11 parcels.

¶ 3 In compliance with the Growth Management Act (GMA), chapter 36.70A RCW, in December 1992, the Snohomish County Council (Council) enacted an ordinance that adopted an interim forest land conservation plan and designated interim forest land pending adoption of a comprehensive plan. The ordinance designated the majority of the Twin Falls property as “Interim Commercial Forest or Interim Forest Reserve.” Approximately 120 acres of the property was designated as Interim Commercial Forest, and approximately 20 acres at the southern end was designated as Interim Forest Reserve.

¶ 4 Twin Falls filed an appeal with the Central Puget Sound Growth Management Hearings Board (CPSGMHB), challenging the Council's decision to designate its property as Interim Commercial Forest and Interim Forest Reserve.¹ In a lengthy decision issued on September 7, 1993, the CPSGMHB concluded that the Council's decision to designate the Twin Falls property as Interim Commercial Forest and Interim Forest Reserve complied with the GMA and the State Environmental Policy Act, chapter 43.21C RCW.

¶ 5 In April 1994, the legislature changed the GMA definition of “forest land” from “primarily useful for growing trees” to “primarily devoted to growing trees.” Laws of 1994, ch. 307, § 1.²

¶ 6 In August 1994, the Council considered a number of requests from land owners, including Twin Falls, to change the interim forest land designation. The Snohomish County Planning Department (SCPD) reviewed each request under the adopted interim forest land conservation plan and prepared an evaluation and recommendation for each property.

¶ 7 In Amended Motion 94-210, the Council removed the interim forest land designation from the Twin Falls property and a number of other properties. In deciding to change the interim forest land designation, the Council expressly noted the recent legislative amendment to the definition of “forest land” under the GMA.

8. The County Council takes official notice of the changes in the state law passed by the legislature in the 1994 session in ESSB 6228 related to the definition of forestry resources which are to be designated and protected under the Growth Management Act (GMA). These changes became effective after Planning staff and the Planning Commission had completed their recommendations on the instant petitions.

9. Although the interim forestry designation criteria will not be formally amended until Council considers the final forestry plan as part of GMA plan adoption, Council concludes that the FAC recommendation is consistent with and should be used as initial implementation of ESSB 6228 which defines forestry resources as those which are primarily devoted to production of long term commercial significance. The phrase ‘primarily devoted to’ also includes consideration of landowner's intent, as found by the Puget Sound Growth Planning Hearings Board in the case of Twin Falls, et al, v. Snohomish County (No. 93-3-0003 September 1993).

¶ 8 Consistent with the change in the statutory definition of forest land, the Council also concluded that the Interim Commercial Forest and Interim Forest Reserve designations should not apply to property “for which complete subdivision applications were received prior to their initial interim forestry designation, or for existing tracts of land less than 40 acres in size, regardless of ownership.”

¶ 9 In specifically addressing the decision to remove the interim forestry designation on the Twin Falls property, Amended Motion 94-210 states:

This 180 acre parcel should be removed from any forestry designation based upon Council conclusion 10 above, on testimony

and on the landowner's petition. The site is characterized by streams, wetlands, lakes and very steep slopes, so much so that one area landowner testified that a recent attempt to log in the area had to be aborted due to the steep terrain. The site is also intended by the landowner to be developed into low density recreational/residential use and is currently used for recreational purposes.

¶ 10 In 1995, the Council adopted a comprehensive plan under the GMA and designated the Twin Falls property as Low Density Rural Residential (LDRR).

¶ 11 In 1998, Twin Falls and DNR agreed to a land trade. The land Twin Falls received from DNR was designated in the comprehensive plan as Commercial Forest Land (CFL) and Forest Transition Area (FTA). A CFL designation means the forest land is appropriate for long term conservation in accord with the GMA. FTA designation means forest land is located adjacent to land that is not designated as forest land.

Stafne Property

¶ 12 Scott Stafne owns Lot 11 in Twin Falls Estates (TFE) ³. Lot 11 consists of more than 20 acres and is designated LDRR. The northeast boundary of Lot 11 runs along the base of a cliff. The adjacent commercial forest land above the cliff was owned by DNR. In 2004, Stafne built a house on Lot 11.

¶ 13 In 2006, Stafne acquired three or four acres of land previously owned by DNR. The property was zoned CFL and FTA.

¶ 14 In May 2007, the County approved Stafne's request for a boundary line adjustment (BLA) to reconfigure Lot 11 to incorporate the land previously owned by DNR. Stafne recorded the BLA on May 31.

Annual Review

¶ 15 Under the GMA, comprehensive land plans and development regulations are subject to ongoing review and evaluation. RCW 36.70A.130(1)(a). A county must review and if necessary revise the comprehensive plan and development regulations every seven years. RCW 36.70A.130(4)(a).⁴

¶ 16 The GMA also requires counties to “establish and broadly disseminate to the public a public participation program” to consider amendments to the comprehensive plan on an annual basis. RCW 36.70A.130(2)(a). RCW 36.70A.470 requires counties to adopt procedures for interested parties, and applicants “to suggest plan or development regulation amendments. The suggested amendments shall be docketed and considered on at least an annual basis, consistent with the provisions of RCW 36.70A.130.” RCW 36.70A.130(2)(b) states that “all proposals shall be considered by the governing body concurrently so the cumulative effect of the various proposals can be ascertained....”

¶ 17 In compliance with the requirements of the GMA, the Council established annual docket review procedures and criteria in chapter 30.74 of the Snohomish County Code (SCC), “Growth Management Act Public Participation Program Docketing.”

¶ 18 SCC 30.74.020 sets forth the requirements for a proposed amendment to the comprehensive plan or to the development regulations.⁵ SCPD conducts an initial review and evaluation of proposed amendments according to the criteria set forth in SCC 30.74.030 and .040. The Council then holds a public hearing to determine “which of the proposed amendments should be further processed.” SCC 30.74.050.

¶ 19 SCC 30.74.030 establishes the criteria for evaluating proposed amendments to the comprehensive plan or the development regulations. SCC 30.70.030 provides, in pertinent part:

(1) The department shall conduct an initial review and evaluation of proposed amendments, and assess the extent of review that would be required under the State Environmental Policy Act (SEPA) prior to county council action. The initial review and evaluation shall include any review by other county departments deemed necessary by the department, and shall be made in writing. The department shall recommend to the county council that the amendment be further processed only if all of the following criteria are met, excerpt as provided in SCC 30.74.040:

(a) The proposed amendment is consistent with the countywide planning policies, the GMA, and other state or federal law;

(b) The time required to analyze probable adverse environmental impacts of the proposed amendment is available within the time frame for the annual docketing process;

(c) The time required for additional analysis to determine the need for additional capital improvements and revenues to maintain level of service, when applicable to the proposal, is available within the time frame for the annual docketing process;

(d) Any proposed change in the designation of agricultural and forest lands is consistent with the designation

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