Woods v. Kittitas County

• Decision Date: 29 November 2005
• Docket Number: No. 23692-7-III.,23692-7-III.
• Citation: 123 P.3d 883,130 Wn. App. 573
• Parties: Cecile B. WOODS, Respondent, v. KITTITAS COUNTY, a political subdivision of the State of Washington, Evergreen Meadows LLC, and Stuart Ridge LLC, Steele Vista LLC, and CLE Elum's Sapphire Skies, LLC, Appellants.
• Court: Washington Supreme Court

123 P.3d 883

130 Wn. App. 573

Cecile B. WOODS, Respondent, v. KITTITAS COUNTY, a political subdivision of the State of Washington, Evergreen Meadows LLC, and Stuart Ridge LLC, Steele Vista LLC, and CLE Elum's Sapphire Skies, LLC, Appellants.

No. 23692-7-III.

Court of Appeals of Washington, Division 3, Panel Three.

November 29, 2005.

Michael J. Murphy, Groff, Murphy, Trachtenberg & Everard PLLC, William J. Crittenden, Attorney at Law, Seattle, WA, James E. Hurson, Kittitas County Prosecuting Attorney's Office, Ellensburg, WA, for Appellant.

James C. Carmody, Velikanje, Moore & Shore PS, Yakima, WA, for Respondent.

SCHULTHEIS, J.

¶ 1 In January 2004, three landowner-companies applied for a rezone of approximately 252 acres in Kittitas County from forest and range (allowing one dwelling per 20 acres) to rural-3 (allowing one dwelling per 3 acres). The Kittitas County board of commissioners approved the rezone and adopted Ordinance 2004-15 to implement it. Neighboring landowner Cecile Woods filed a land use petition challenging the rezone. In a December 2004 order, the Yakima County Superior Court granted the petition and reversed.

¶ 2 Kittitas County and the landowner-companies appeal, contending the superior court lacked jurisdiction to decide the petition and erred in concluding that the rezone was inconsistent with the Growth Management Act (GMA), chapter 36.70A RCW. Although we find that the superior court had jurisdiction over the land use petition, we conclude that the court erred in addressing the rezone's compliance with the GMA, and reverse.

FACTS

¶ 3 Cle Elum's Sapphire Skies LLC, Evergreen Meadows LLC, Stuart Ridge LLC, and Steele Vista LLC (hereafter referred to collectively as CESS) own approximately 252 contiguous acres of land zoned forest and range in Kittitas County.¹ The minimum lot size on forest and range land is 20 acres. Kittitas County Code (KCC) 17.56.040. Permitted uses include single family homes, mobile homes, cabins, duplexes, agriculture, forestry, mining, and approved "cluster subdivisions." KCC 17.56.020. Directly north of the CESS property is zoned rural-3, east and west of the property is zoned forest and range, and south of the property is zoned commercial forest. The northern rural-3 and the eastern forest and range properties have been subdivided and developed for residential purposes.²

¶ 4 In January 2004, CESS applied for a rezone of its property from forest and range to rural-3. The minimum lot size in rural-3 zones is three acres for lots served by individual wells and septic tanks. KCC 17.30.040. As with the forest and range zone, the rural-3 zone allows one-half acre lots in platted cluster subdivisions served by public water and sewer systems. KCC 17.30.040. Permitted uses in rural-3 zones are similar to permitted uses in forest and range zones, although mining is allowed only as a conditional use. KCC 17.30.020,.030.

¶ 5 The predominant differences between the two zones are in their allowed densities and their purposes. As stated in the county code, "[t]he purpose and intent of the Rural-3 zone is to provide areas where residential development may occur on a low density basis. A primary goal and intent in siting R-3 zones will be to minimize adverse effects on adjacent natural resource lands." KCC 17.30.010. The purpose of the forest and range zone "is to provide for areas of Kittitas County wherein natural resource management is the highest priority and where the subdivision and development of lands for uses and activities incompatible with resource management are discouraged." KCC 17.56.010.

¶ 6 After a public hearing held in April 2004, the Kittitas County planning commission voted five to one to forward the rezone request to the county board of commissioners for approval. The one planning commissioner who voted against the rezone expressed concern about the adequacy of the water supply for future development. In May 2004, the board of commissioners unanimously approved the rezone in a closed meeting. Ordinance 2004-15 adopting the rezone was filed on June 1, 2004.

¶ 7 Ms. Woods owns approximately 33 acres adjacent to the CESS property. In June 2004, she filed a petition under the Land Use Petition Act (LUPA), chapter 36.70C RCW, challenging the ordinance in the Yakima County Superior Court. After concluding it had jurisdiction over the site-specific rezone petition, the superior court decided that the rezone was inconsistent with the GMA because it allowed development "urban in nature" in a rural area. Clerk's Papers (CP) at 16. On this basis, the court reversed the decision to rezone and denied CESS's motion for reconsideration. CESS and Kittitas County filed separate briefs on appeal.

SUPERIOR COURT LUPA JURISDICTION

¶ 8 CESS first contends the trial court lacked subject matter jurisdiction under LUPA to consider whether the ordinance is consistent with the GMA. It argues that Ms. Woods is not really requesting review of a rezone from forest and range to rural-3, but is actually seeking to invalidate the rural-3 zone throughout the county. The trial court's subject matter jurisdiction to consider Ms. Woods' petition is a question of law reviewed de novo. Somers v. Snohomish County, 105 Wash.App. 937, 941, 21 P.3d 1165 (2001).

¶ 9 The GMA was enacted in 1990 to address problems associated with an increase in the state's population. Skagit Surveyors & Eng'rs, LLC v. Friends of Skagit County, 135 Wash.2d 542, 546-47, 958 P.2d 962 (1998). The GMA sought to alleviate the legislature's concern that

uncoordinated and unplanned growth, together with a lack of common goals expressing the public's interest in the conservation and wise use of our lands, pose a threat to the environment, sustainable economic development, and the health, safety, and high quality of life enjoyed by residents of this state.

RCW 36.70A.010. To that end, the legislature called for citizens, the local government, and the private sector to cooperate in "comprehensive land use planning." RCW 36.70A.010. Among the new requirements imposed on many of the state's counties and cities, the GMA required the development of a comprehensive plan that would address the elements of land use, housing, capital facilities, utilities, rural areas, and transportation. RCW 36.70A.040, .070; Skagit Surveyors, 135 Wash.2d at 547, 958 P.2d 962. The rural element of each county's comprehensive plan was to include lands that permitted rural development, forestry, agriculture, and a variety of rural densities. RCW 36.70A.070(5)(b). "To achieve a variety of rural densities and uses, counties may provide for clustering, density transfer,. . . conservation easements, and other innovative techniques that will accommodate appropriate rural densities and uses that are not characterized by urban growth and that are consistent with rural character." RCW 36.70A.070(5)(b).

¶ 10 The legislature set out planning goals in RCW 36.70A.020 to guide the development of a comprehensive plan. Skagit Surveyors, 135 Wash.2d at 547, 958 P.2d 962. As in Skagit Surveyors, the two goals central to this case involve the designation of urban and rural development: (1) to "[e]ncourage development in urban areas where adequate public facilities and services exist or can be provided in an efficient manner," and (2) to "[r]educe the inappropriate conversion of undeveloped land into sprawling, low-density development." RCW 36.70A.020(1), (2). Counties and cities are also urged to plan so as to preserve productive forest and agricultural lands and to increase access to natural resource lands. RCW 36.70A.020(8), (9). Ultimately the comprehensive plans adopted by the counties must "designate an urban growth area or areas within which urban growth shall be encouraged and outside of which growth can occur only if it is not urban in nature." RCW 36.70A.110(1). Each city must be located within an urban growth area. RCW 36.70A.110(1).

¶ 11 In 1991, the legislature created the growth management hearings boards (GMHB) as the enforcement mechanism for the GMA. Skagit Surveyors, 135 Wash.2d at 548, 958 P.2d 962. These boards have very limited jurisdiction to invalidate all or part of comprehensive plans or development regulations that substantially fail to comply with the goals of the GMA. Id. at 549, 958 P.2d 962; Somers, 105 Wash.App. at 942, 21 P.3d 1165; RCW 36.70A.280(1)(a), .302. Development regulations are defined as "controls placed on development or land use activities by a county or city," including zoning ordinances. RCW 36.70A.030(7). However, a development regulation does not include a decision to approve a project permit application, "even though the decision may be expressed in a resolution or ordinance." RCW 36.70A.030(7). A site-specific rezone authorized by a comprehensive plan is a project permit application. RCW 36.70B.020(4). Consequently, the GMHB does not have jurisdiction to hear a challenge to a site-specific rezone, even if the rezone is adopted as a county ordinance. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wash.2d 169, 179, 4 P.3d 123 (2000); Citizens for Mount Vernon v. City of Mount Vernon, 133 Wash.2d 861, 868, 947 P.2d 1208 (1997).

¶ 12 LUPA is the exclusive means for judicial review of land use decisions that are not subject to review by quasi-judicial bodies such as the GMHB. RCW 36.70C.030; Somers, 105 Wash.App. at 941-42, 21 P.3d 1165. Accordingly, if Ms. Woods' challenge is limited to the validity of the site-specific rezone adopted in Ordinance 2004-15, she properly filed a LUPA petition in superior court. However, if CESS is correct, and she is actually alleging that the rural-3 zone itself does not comply with the requirements of the GMA, then only the GMHB would have subject matter jurisdiction.³ Wenatchee Sportsmen, 141 Wash.2d at 178, 4 P.3d 123.

¶ 13 Generally, the proponent of a rezone must show a substantial change in circumstances or that the proposed rezone implements policies of the...