Tugwell v. Kittitas County

• Decision Date: 16 December 1997
• Docket Number: No. 16026-2-III,16026-2-III
• Citation: 951 P.2d 272,90 Wn.App. 1
• Court: Washington Court of Appeals
• Parties: Thomas TUGWELL, and Pamela Tugwell, husband and wife, Plaintiffs, City of Ellensburg, a municipal corporation, Appellant, v. KITTITAS COUNTY, a political subdivision; and Herbert J. Snowden and Shirley J. Snowden, husband and wife, Respondents.

Page 1

90 Wn.App. 1

951 P.2d 272

Thomas TUGWELL, and Pamela Tugwell, husband and wife, Plaintiffs City of Ellensburg, a municipal corporation, Appellant, v. KITTITAS COUNTY, a political subdivision; and Herbert J Snowden and Shirley J. Snowden, husband and wife Respondents.

No. 16026-2-III.

Court of Appeals of Washington,

Division 3,

Panel Ten.

Dec. 16, 1997.

Publication Ordered and Reconsideration Denied Feb. 10, 1998.

James D. Maloney, III, Weeks & Skala, Yakima, for Appellant.

James E. Hurson, Deputy Prosecuting Attorney, Erin L. Anderson, Ellensburg, for Respondents.

KATO, Judge.

The City of Ellensburg appeals a superior court order affirming the Kittitas County Board of Commissioners' approval of Herbert and Shirley Snowden's rezoning request. The City contends the record and the Board's findings fail to support the Board's action, and irregularities in the County's planning process require reversal. We affirm.

The Snowdens own approximately 115 acres of agricultural land in Kittitas County just southwest of Ellensburg. In 1980, the land was zoned AG-20, which is designated for agricultural use with minimum lot sizes of 20 acres. Neighboring properties to the north and east of the Snowdens' land are zoned AG-3, which is designated for agricultural and low-density residential use with minimum lot sizes of three acres. ¹ Properties to the west and south of the Snowdens' land are zoned AG-20, although some of those properties have been divided into nonconforming parcels of less than 20 acres. The County's comprehensive plan designates most of the Snowdens' land as agricultural, but the far eastern portion is designated for suburban use.

In April 1994, the Snowdens applied to rezone their property from AG20 to AG-3. Under the existing zoning designation, they could have divided their property into 10 parcels; the rezoning would permit them to create an estimated 35 residential parcels of approximately three acres each. Although no development project was proposed at the time, the County's planning department examined the potential environmental effects of a development at the site and issued a mitigated determination of nonsignificance ² pursuant to RCW 43.21C.030(2)(c).

The County's planning commission then conducted public hearings on the Snowdens' application in August and September 1994. The planning commission recommended approval of the rezoning by a vote of three to one, with one abstention. The commission made the following findings:

1. The Kittitas County Comprehensive Plan designates a portion of the subject property as Suburban.

2. The area to the north, east, and south is characterized by smaller parcels.

3. The property is bordered on the north and east by Agriculture-3 zoning.

4. Technical data including extensive financial records submitted show this is marginal farm land.

5. The subject property has access to two main arterials.

6. Traffic generated from potential development will not result in a negative impact.

7. The Kittitas County Subdivision Code addresses small parcel irrigation systems and will alleviate irrigation concerns.

The proposal then went to the Kittitas County Board of Commissioners, which conducted another public hearing in November 1994 and received additional written comments for another month. The Board postponed action on the rezoning until August 1995 to allow a group of residents to complete its recommendations for modification of the County's comprehensive plan pursuant to the Growth Management Act, RCW 36.70A. After considering a draft version of the modification, the Board unanimously approved the rezoning, subject to various conditions, and made the following findings:

1. The Board finds that on April 13, 1994 Herb and Shirley Snowden applied for rezone of an approximately 115 acre site from Agriculture-20 zoning to Agriculture-3 zoning by submittal of a complete rezone application (file Z-94-04) with SEPA Environmental Checklist per Chapter 17.98 and Section 15.04.110 of the Kittitas County code.

2. The Board finds that the permitted uses and conditional uses within the Agriculture-20 and Agriculture-3 zones are very similar with two exceptions. The AG-20 zone lists as an additional permitted use "hay processing and container storage" (17.29.020[B] ), and an additional conditional use "farm implement repair and maintenance business of a commercial nature, not to include automobiles, trucks or bikes" (17.29.030[B] ).

3. The Board finds that the minimum lot size with the requested zoning district (Ag-3) is three acres; the present zoning district (Ag-20) is twenty acres with exceptions that allow some lots as small as three acres.

4. The Board finds the present zoning of the vicinity is Agriculture-20 to the west of Umptanum Road and Agriculture-3 to the east of Umptanum Rd.; the requested rezone by the applicant is for extension of the Ag-3 zone boundary line west across Umptanum Rd. to include the subject site.

5. The Board finds that the State Environmental Policy Act (SEPA) was complied with and a Mitigated Determination of Non-Significance was filed on August 4, 1994 and appropriate Notice of Action published with the paper of record per Kittitas County Code Section 15.04.160.

The rezoning ordinance also incorporated the Planning Commission's earlier findings.

Opponents of the rezoning, including the City of Ellensburg, petitioned for judicial review pursuant to the Land Use Petition Act, RCW 36.70C. After reviewing the record, the superior court concluded in a memorandum decision that the Board's findings were adequate; that the planning commission's actions did not violate procedural requirements; that substantial evidence established there had been a substantial change in circumstances and the rezoning was in the interest of public health, safety, morals, and welfare; and that the rezoning did not conflict with the Growth Management Act. The court entered an order affirming the rezoning. The City appeals this order.

Judicial review of a rezoning decision is governed by RCW 36.70C.130, ³ which provides:

(1) The superior court, acting without a jury, shall review the record and such supplemental evidence as is permitted under RCW 36.70C.120. The court may grant relief only if the party seeking relief has carried the burden of establishing that one of the standards set forth in (a) through (f) of this subsection has been met. The standards are:

(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.

(2) In order to grant relief under this chapter, it is not necessary for the court to find that the local jurisdiction engaged in arbitrary and capricious conduct. A grant of relief by itself may not be deemed to establish liability for monetary damages or compensation.

The City first contends the planning commission violated RCW 36.70.600 ⁴ and RCW 36.70.610. ⁵ We need not resolve these issues for two reasons.

First, RCW 36.70C is the exclusive means of obtaining judicial review of land use decisions. RCW 36.70C.030. A land use decision is defined as "a final determination by a local jurisdiction's body or officer with the highest level of authority to make the determination...." RCW 36.70C.020(1). The planning commission is not Kittitas County's body with the highest level of authority on rezoning matters, so its recommendation in this case is not a land use decision subject to review under RCW 36.70C. Second, even if the planning commission's action were reviewable under RCW 36.70C, the appropriate standard requires the court to determine whether the planning commission "engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless." RCW 36.70C.130(1)(a). Any procedural errors by the planning commission in this case were harmless, because its recommendation was merely advisory and the Board retained authority to make the final determination. RCW 36.70.650.

The City also contends the rezoning was not supported by substantial evidence. In Washington, a rezoning proponent must show a substantial change in circumstances since the original zoning or amendment, ^{6 6} and must show that the rezoning bears a substantial relationship to the public health, safety, morals, or general welfare. Bassani v. Board of County Comm'rs, 70 Wash.App. 389, 394, 853 P.2d 945, review denied, 122 Wash.2d 1027, 866 P.2d 40 (1993). Whether an application for rezoning complies with a comprehensive plan is not determinative; only "general conformance" with the comprehensive plan is required. Cathcart-Maltby-Clearview Community Council v. Snohomish County, 96 Wash.2d 201, 212, 634 P.2d 853 (1981).

Several factors are relevant to the question whether there has been a substantial change of circumstances, including changes in public opinion, in land use patterns and in the property itself. Bjarnson v. Kitsap County, 78 Wash.App. 840, 846-47, 899 P.2d 1290 (1995). In support of their application, the Snowdens submitted a map demonstrating that their property was virtually surrounded by parcels of less than 20 acres. Many of these parcels are to the north and east of the Snowdens' property, and thus are conforming uses in the AG-3 zone. However, several small parcels, including two to the south of less than three acres,...