Spokane County v. Eastern Washington Growth Management Hrg Board ( 2015 )

FILED
APRIL 9, 2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
SPOKANE COUNTY, a political )
subdivision of the State of Washington, )
No. 31941-5-III
)
Respondent, )
)
v. )
) UNPUBLISHED OPINION
EASTERN WASHINGTON GROWTH )
MANAGEMENT HEARINGS BOARD, a )
statutory entity, )
)
Other, )
)
FIVE MILE PRARIE NEIGHBORHOOD )
ASSOCIATION, and FUTUREWISE, a )
Washington Non-Profit Organization, )
)
Appellants, )
)
HARLEY C. DOUGLAS, Inc., )
)
Respondent. )
FEARING, J. - We address once again the compliance of Spokane County with
Washington's intractable Growth Management Act (GMA), chapter 36.70A RCW, this
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time in the context of a comprehensive plan amendment that rezoned a parcel of land.
The reviewing administrative agency, the Growth Management Hearings Board
(GMHB), invalidated the amendment, and the superior court reversed. We reverse in part
and affirm in part the decisions of the superior court and remand the case to the GMHB
for further proceedings.
Our previous decision in Spokane County v. Eastern Washington Growth
Management Hearings Board, 173 Wn. App. 310, 293 P.3d 1248 (2013) (Spokane
County 1), provides answers to some of the issues raised in this appeal, but this appeal
asks many other questions. Like the dispute in Spokane County I, this dispute is fact
specific and demands a thorough review of the Spokane County comprehensive plan and
a zoning ordinance, an intimate evaluation of the record before the Spokane County
Board of Commissioners and the GMHB, and an analysis of the GMA. We address both
the merits of the challenge to the rezone and procedural issues under the GMA.
FACTS
Neighbors to 22.3 acres of undeveloped land and environmental groups
challenged, before the GMHB, Spokane County's Resolution 11-1191. We refer to the
challengers collectively as the "Neighborhood Association." The resolution adopted
many changes to Spokane County's comprehensive plan. This appeal solely addresses a
narrow portion ofthe resolution, the portion that adopted amendment ll-CPA-05 to the
county's comprehensive plan and rezoned the 22.3 acres along N. Waikiki Road from
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low-density residential to medium-density residential. The amendment allows the
placement of multifamily complexes on the land, whereas the former zoning allowed
duplexes as the most intense use on the tract. The Neighborhood Association contends
the rezone, in part, failed to recognize the lack of access and lack of available utilities to
the site and thereby violated Spokane County's comprehensive plan, its zoning code, and
theGMA.
Washington's GMA requires a county to adopt and maintain comprehensive plans
and development regulations which, among other goals, provide for the public facilities
and services needed to support new development and reasonably zone land within the
county. The GMA demands that a county yearly update the comprehensive plan. To
help understand the dispute on appeal, we sketch critical fragments of the Spokane
County comprehensive plan. The comprehensive plan conveniently divides itself into
chapters by subject matter, with the first chapter being an introduction. The introductory
chapter explores the nature of a comprehensive plan and outlines the demands of I
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Washington's GMA.
Spokane County's comprehensive plan encompasses a set of goals, policies, maps,
illustrations, and implementation strategies that outline acceptable methods of physical,
social, and economic growth in the county. A central theme of the plan is the promotion
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of economic development that occurs in harmony with environmental protection and
preservation of natural resources. The plan "establishes a pattern of land uses to shape
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the future in desirable ways." Admin. Record (AR) at 835. Map designations
incorporate residential, commercial, industrial and mixed-use areas. Identifying and
defining these land use categories ensures compatibility among uses, protection of
property values, and efficient provision of infrastructure and services.
Chapter 2 of Spokane County's comprehensive plan addresses "'urban land use"
and its pages start with the letters "UL." AR at 843-44. The urban land use chapter
provides policy guidance for the development of Spokane County's unincorporated urban
areas. The chapter's policies strive to improve quality of life, provide opportunities for
innovative approaches to land use, and protect the county's community character. The
policies work in tandem with the comprehensive plan map, which illustrates the location
of various land use categories.
Chapter 2 of the comprehensive plan outlines plan goals, with each goal separately
numbered beginning with UL.l. One goal is to identify and designate land for residential
use into the three categories of low-, medium-, and high-density areas. Policy UL. 7 .1.
Low-density residential includes a density range of 1 to and including 6 dwelling units
per acre; medium-density residential includes a range of greater than 6 to and including
15 dwelling units per acre; and high-density residential is greater than 15 dwelling units
per acre. This appeal entails Spokane County's change ofa tract of land from low-
density residential to medium-density residential under the county's comprehensive plan f
and zoning ordinance.
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A number of goals in the comprehensive plan's Chapter 2 address the location of
multifamily housing. The Neighborhood Association claims Spokane County's rezone
violated some of these goals, in particular:
UL.2.16 Encourage the location of medium and high density
residential categories near commercial areas and public open spaces and on
sites with good access to major arterials.
UL.2.17 Site multifamily homes throughout the Urban Growth
Area as follows:
a) Integrated into or next to neighborhood, community or urban
activity centers.
b) Integrated into small, scattered parcels throughout existing
residential areas.
New multi-family homes should be built to the scale and design of
the community or neighborhood, while contributing to an area-wide density
that supports transit and allows for a range of housing choices.
AR at 848. A third urban land use policy goal, UL.2.20 reads:
UL.2.20 Encourage new developments, including multifamily
projects, to be arranged in a pattern of connecting streets and blocks to
allow people to get around easily by foot, bicycle, bus or car. Cul-de-sacs
or other closed street systems may be appropriate under certain
circumstances including, but not limited to, topography and other physical
limitations which make connecting systems impractical.
ARat 849
Chapter 7 of the Spokane County comprehensive plan addresses capital facilities
and utilities. The chapter's pages begin with CF -1 and its goals begin with CF.1.
According to the plan, public facilities and services are often taken for granted, but,
without coordination and conscientious planning for future growth, facilities and services
may be interrupted or inadequate. One fundamental tenet of the GMA is for local
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governments to ensure the availability of adequate public facilities and services to serve
existing and future developments. Existing facilities and services must be able to support
new development or provisions for improvements must be made where deficiencies exist.
Capital facilities include roads, water, sewer, solid waste, parks, jails, police protection,
and fire protection. Policy goal CF.3.1 reads:
Development shall be approved only after it is determined that
public facilities and services will have the capacity to serve the
development without decreasing levels of service below adopted standards.
AR at 276. The capacity to serve is termed "concurrency," which "describes the situation
in which adequate facilities are available when the impacts of development occur, or
within a specified time thereafter." WAC 365-196-840(b).
The Neighborhood Association also contends Spokane County violated one of its
zoning ordinances when rezoning the subject land. Spokane County Zoning Code
(SCZC) section 14.402.040 provides:
The County may amend the Zoning Code when one of the following
is found to apply.
1. The amendment is consistent with or implements the
Comprehensive Plan and is not detrimental to the public welfare.
2. A change in economic, technological, or land use conditions has
occurred to warrant modification of the Zoning Code.
3. An amendment is necessary to correct an error in the Zoning
Code.
4. An amendment is necessary to clarify the meaning or intent of the
Zoning Code.
5. An amendment is necessary to provide for a use(s) that was not
previously addressed by the Zoning Code.
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6. An amendment is deemed necessary by the Commission and/or
Board as being in the public interest.
AR at 1027.
Spokane County ordinances addressing concurrency also apply to our dispute.
Spokane County Code section 13.650.102 reads:
13.650.102 - Concurrency facilities and services.
(I) The following facilities and services must be evaluated for
concurrency:
(a) Transportation;
(b) Public water;
(c) Public sewer;
(d) Fire protection;
(e) Police protection;
(f) Parks and recreation;
(g) Libraries;
(h) Solid waste disposal;
(i) Schools.
(2) Direct Concurrency.
Transportation, public water and public sewer shall be considered
direct concurrency services. Concurrency requirements for public water
and public sewer service are detailed in Section 13.650.112. Transportation
facilities serving a development must be constructed, or a financial
guarantee for required improvements must be in place prior to occupancy.
Applicable permit/project applications shall required transportation
concurrency review, described in Section 13.650.104. A Concurrency
Certificate shall be issued to development proposals that pass the
transportation concurrency review.
(3) Indirect Concurrency.
Fire protection, police protection, parks and recreation, libraries,
solid waste disposal and schools shall be considered indirect concurrency
services. Spokane County shall demonstrate the adequacy of indirect
concurrency services through the Capital Facilities Plan (CFP). The CFP
will be updated annually, at which time all indirect concurrency services
will be evaluated for adequacy. The evaluation will include an analysis of
population, level of service and land use trends in order to anticipate
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demand for services and determine needed improvements. If any indirect
concurrency services are found to be inadequate, the County shall adjust the
land use element to lessen the demand for services, include a project in the
CFP to address the deficiency, or adjust the Level of Service. To
implement any of these methods an amendment to the Comprehensive Plan
is required.
We tum now to the land in question. Harley C. Douglass, Inc. (Douglass), owns
22.3 acres of undeveloped land, the property at issue in this appeal. The property lies
within Spokane County's Urban Growth Area (UGA). An urban growth area is area
"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.Il O. Existing urban utilities service the
Douglass property. Spokane County Utilities provides sewer service, and Whitworth I
Water District supplies water service.
Before adoption of amendment II-CPA-05, the Douglass property was zoned for
low-density residential. All adjacent lands are also zoned for low-density residential.
The county comprehensive plan identifies the nearest medium and high density
residential areas as being a mile southeast of the site. The Douglass land is .9 miles
from the nearest commercial area. The land is not near any public open space.
According to the Regional Land Quantity Analysis for Spokane County Summary
Report, redesignation of the Douglass parcel to medium density is unnecessary to meet
projected growth in Spokane County.
The following map shows the property's irregular contour, with the property lying
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within the bold border:
AR at 228. The property abuts Waikiki Road to the east and North Five Mile Road to
the south. According to the hearing examiner's findings of fact entered in support of a
2007 plat application, Spokane County's Arterial Road Plan designates Waikiki Road as
an "Urban Principal Arterial," and North Five Mile Road as an "Urban Collector
Arterial." AR at 511. Nevertheless, a Spokane County Building and Planning staff
report and a letter from Douglass to the Spokane County Board of Commissioners
identified Waikiki Road as an urban minor arterial.
Douglass' site generally slopes down from the northwest to the southeast, away
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i from North Five Mile Road and toward Waikiki Road. Various utility easements extend
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through the site. Within the easements lie a high-voltage overhead transmission line,
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associated gravel access roads, and a high-pressure underground gas pipeline. Spokane
County maintains that, because of the utility easements and the hilly and craggy
I topography of the land, Douglass may be able to develop only a small portion of its
parcel, that portion being on the southern edge and the middle of the acreage.
Douglas previously sought to develop the property into 26 single-family homes
and 12 duplexes. In 2007, a Spokane County hearing examiner approved a preliminary
plat for the 38 structures in a subdivision called Redstone. The plat is pictured here:
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AR at 366. The northeast comer ofthe property would remain undeveloped under the
plan.
During the Redstone preliminary plat public hearing, neighbors raised concerns
about the subdivision's singular access to Five Mile Road and concerns about the safety
along the steep road because of an overload of traffic and lack of pedestrian
accommodations. In obtaining approval for the Redstone subdivision, Douglass claimed
that extension of a paved road in the preliminary plat for general vehicular access to
Waikiki Road, meeting County standards, was not economically feasible. The Spokane
County Engineering Department indicated that a road extension from the proposed
subdivision to Waikiki Road would likely be difficult, due to the topography ofthe site.
Nevertheless, Spokane County approved the Redstone plat conditioned, at Spokane
County Fire District 9's request, on the construction of a second access road for fire
vehicles to Waikiki Road.
Douglass thereafter changed plans for the site. On March 31, 2011, Douglass
applied to amend Spokane County's comprehensive plan and rezone its property from
low-density to medium-density residential. Douglass avowed that, because of changing
economic conditions, a medium-density residential development best fit the location.
Douglass hoped to build eight to ten apartment buildings, inclusive of 200 units, with
parking lots surrounding the buildings. Douglass, however, has not disclosed a specific
development plan or site plan or applied for a project permit. Spokane County labeled
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Douglass' application to amend the county's comprehensive plan and to rezone the
property "Amendment II-CPA-05" to its comprehensive plan.
Spokane County proceeded with public input and review by its Department of
Building and Planning of Douglass' proposed zoning change. The department prepared a
staff report, which read, in part:
PUBLIC COMMENT
One letter has been received which stated the proposal would lead to
increased traffic on Five Mile Road, lower already low water pressure,
increase stormwater runoff and lower property values.
There are a number of duplex uses near this site, but no multi-family
uses. Waikiki Road is designated as an Urban Minor Arterial by Spokane
County's Arterial Road Plan, has sidewalks on both sides and has bus
service from Spokane Transit Authority. Five Mile Road is not listed on
the Arterial Road Plan, is steep and windy and does not have sidewalks.
The Medium Density Residential designation allows multi-family
residential development, among other uses. There are no multi-family
developments adjacent to this site. Their inclusion would add variety to the
area's housing mix.
The Mead School District serves this site. They were provided with
an agency circulation regarding this proposal for review and coordination
purposes.
Summary:
Implementation of the Medium Density Residential designation at
this site is consistent with the goals and objectives of the County's
Comprehensive Plan. At the time of a specific development proposal, the
site will be subject to County transportation concurrency regulations, as
well as, other mitigation measures codified in County development codes.
AR at 220-26.
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After its review of Douglass' application, the Spokane County Engineer wrote the
Department of Building and Planning with its conditions of approval:
This proposed comprehensive plan amendment is not being
requested for a specific development proposal or site plan at this time. At
such time a site plan is submitted for review, the applicant shall submit
detailed traffic information for review by the County Engineer to determine
what traffic impacts, if any, that the development would have on
surrounding infrastructure. The applicant is advised that mitigation may be
required for off-site improvements.
The 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.
AR at 235.
The Douglass parcel lies within the Mead School District, who received notice of
the proposed zone change. The Mead School District tersely wrote to the Department of
Building and Planning: "The Mead School District believes that this request for a change
in land use designation, if approved, could have an impact on schools. The District will
respond with further remarks when the SEPA [State Environmental Policy Act, chapter
43.21C RCW] checklist is circulated for comment." AR at 343.
Futurewise, the Five Mile Neighborhood Association, and neighbors to the
property voiced opposition to Douglass' application to rezone the property for medium-
density residential. Neighbor A. J. Prudente wrote:
The new Prairie View Elementary school was completed and opened
for the 2007-2008 school year. Upon opening during registration there
were many potential students that had to be turned away due to over
population. Prairie View has been overpopulated since its opening and we
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just recently received 4 portable classrooms for the start of the 2010-2011
school year. Even with the new portables the school is still overpopulated.
Zoning Five Mile Prairie for apartment buildings will only make this
situation worse. Please keep Five Mile Prairie zoned only for single family
housing.
AR at 91.
Kathy Miotke, on behalf of the Five Mile Neighborhood Association, wrote:
The applicant states that this parcel has access to public transit and it
does not. The only access and egress this parcel currently has is North Five
Mile Road which has no transit service. And there is no safe way to walk
along North Five Mile Road to Waikiki to find a bus stop. The applicant
has stated correctly that the current access is North Five Mile Road, then
states that he is "proposing" Waikiki as an access point. However, during
the appeal ofthe applicant's Redstone Project, the neighbors begged for an
access/egress offofWaikiki instead of North Five Mile Road and we were
told that it was impossible. That makes it hard for us to believe this
"proposed" change would occur.
The applicant states that this is not a wild life habitat. I agree it isn't
now but it was before this land was clear cut. In fact, one of the FMPNA
members took video from his phone of approximately 40 herd of deer
standing in the middle of the property the evening after it was clear cut.
What we have here is a geographical hazardous area with steep
slopes and erodible soils located within a CARA with high susceptibility ­
stormwater problems abound for residents. Please read carefully the letter
submitted by Colleen Little of the Spokane County Stormwater Department
dated May 6, 2006. You should have seen the drainage ways she described
in her 2006 letter in May ofthis year, you could grow cranberries in the
bog. These drainage ways are extremely important as they connect to the
Little Spokane Natural area and watershed.
I can tell you that Prairie View Elementary is at capacity even with
four portable classrooms. And because of the unsafe roads surrounding the
school, including North Five Mile Road, parents are asked to keep their
children from walking or riding their bikes. In fact, taxpayers are paying
approximately $200,000 a year for bus service even within a mile of the
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school.
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The Staff report does not acknowledge that this is a geographical
hazardous area which it clearly is. The pictures that are shown with this
submission do not give you the full benefit of the topography with the steep
slopes, the existing neighborhood and the twists and turns of our roadway.
1 don't believe these pictures were provided by staff as 1 don't believe Mr.
Brock has seen the site. 1 wish every one of you would take a ride on the
road and see the parcel and surrounding for yourself.
To the east, to the west, to the north and to the south, all low density
residential homes.
This is not a center or corridor. This is not sited next to a
neighborhood urban activity center. This does not connect to a commercial
center. This does not connect to a public open space. It does not have good
access to a major arterial.
This doesn't even meet the definition of urban infill housing! Infill
within an urban area is not 22.2 acres of land and urban infill respects the
current character of the neighborhood which this zone change does not.
There is no market analysis, no feasibility study, no environmental
impact study.
What is this? It is Spot Zoning which is not allowed by the Spokane
Comprehensive Plan or GMA.
This does not fit and 1 urge you to recommend denial of this
comprehensive plan amendment.
AR at 237-38.
Brion and Rene Reighard, who live on Five Mile Road, believe a multifamily
development will lower the value of their home. They wrote:
The only person this development will help is the developer. There
are plenty of new and used homes in the Five Mile Prairie Area that are
currently unoccupied. We would prefer that Spokane County try and curb
the urban sprawl that this development represents. The wildlife habitat that
has been destroyed by the clear cut a few years ago is very noticeable,
adding all these buildings will completely destroy it.
AR at 236.
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Spokane County's Planning Commission, in a four-two vote, recommended
denying amendment II-CPA-05. The Planning Commission found the amendment
inconsistent with many of Spokane County's planning policies that relate to traffic:
The Planning Commission finds this proposal to be inconsistent with
the following Comprehensive Plan Goals and Policies: Goal: T2, Policies:
T.2.2, 3 & 7. Significant residential development has occurred on and near
the Five Mile Prairie and transportation improvements have not kept up.
This site is adjacent to one of the Prairie's access points (North Five Mile
Rd.). It does not appear that the transportation improvements in the area
are consistent with the Land Use Plan.
The Planning Commission also finds this proposal inconsistent with
Comprehensive Plan Goal: T.3.e, Policy: T.3e.l which speaks to pedestrian
and bicycle access. This proposal fronts on North Five Mile Rd. which is
steep, windy and has no accommodations for pedestrians or bicyclists. The
Spokane County Engineering Department says there are no plans for
improvements and the applicant, who says they plan to use this road as one
of their access points, has not indicated they plan to make any
improvements.
The amendment does not meet the criteria for a zone reclassification
as provided by Sections 14.402.040 of the Zoning Code and the Planning
Commission felt the proposal was not in the public's interest.
The Commission, in general, thought that the traffic issues in the
area needed to be addressed comprehensively and that the site is properly
designated as Low Density Residential.
Public Comments: Thirty-seven (37) public comments were received
related to this proposal. Four (submitted by the applicant's agent) were for
the amendment and 24 were against.
AR at 770.
Douglass appealed to the Spokane County Board of Commissioners. In tum,
Douglass wrote mUltiple letters to the Board of Commissioners. On November 21, 2011,
relying on a 2007 traffic impact analysis performed for the Redstone plat, Douglass
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wrote:
As the board is undoubtedly aware, conditions in the single family
housing market have deteriorated significantly since 2007. For the
foreseeable future, development ofthe Redstone plat is no longer feasible
due to a surplus of single family residential lots and rising construction
costs. In addition, the constraints on the site due to steep slopes and utility
easements make the useable portions more suitable for multi-family
development. Consequently, in March of2011, Douglass submitted an
application for a comprehensive plan map amendment from Low Density
Residential to Medium Density Residential (11-CPA-05).
The proposed change to medium density residential also creates an
opportunity to address the neighboring property owners' concerns about
traffic on North Five Mile Road. To accommodate development of the
property for multifamily uses, Douglass proposes to construct a new access
road Eastward across the property directly to Waikiki Road, an urban minor
arterial. Exhibit C. The new access road is designed to County road
standards. Douglass also proposes to construct a pedestrian access to the
existing sidewalks on Waikiki Road. A secondary access onto North Five
Mile Road would still be necessary, in part to accommodate access to the
utility easements .
. . .With the new primary access onto Waikiki Road, multi-family
development would significantly reduce the amount of projected traffic on
North Five Mile Road. In the worst case, with 30 percent of the traffic still
using the access onto North Five Mile Road, a multi-family development of
the property at this density would generate only 31 a.m. peak hour trips and
37 p.m. peak hour trips, far less than what was projected for and approved
as a part of the Redstone plat. Even ifthe project were developed at the
maximum density allowed, the trips distributed to North Five Mile would
still be less than the traffic impacts projected for and approved as part of the
Redstone plat.
AR at 664. Douglass drew its winding, hilly access road to Waikiki in this picture:
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AR at 673,695.
On December 23, 2011, the Spokane County Board of County Commissioners
adopted Re~olution 11-1191 that approved amendment l1-CPA-05 to the county
comprehensive plan. In other words, the Board of Commissioners rejected the
recommendation of the County Planning Commission. Resolution 11-1191 covered
many other subjects other than the zoning change to the Douglass property. Those
portions of the resolution relevant to amendment ll-CPA-05 provided:
WHEREAS, ... In approving amendment ll-CPA-05, the Board
does not concur with the recommendation of the Spokane County Planning
Commission that the proposal is inconsistent with the Goals and Policies of
the Spokane County Comprehensive Plan and the written and oral
testimony alleging traffic impacts to Five Mile Road and Waikiki Road;
and
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WHEREAS, ... recognizing compliance with the Growth
Management Act.
NOW, THEREFORE, BE IT RESOLVED by the Board that it
does hereby enter the following Findings of Fact:
Findings number 17 through 25 below pertain specifically to
proposed Comprehensive Plan Amendment No. II-CPA -OS:
17. Testimony in opposition to proposed amendment No. II-CPA-05
alleged potential impacts to Mead School District and the capacity of
Prairie View Elementary School, traffic on Five Mile Road, intrusion of
multi-family use and density into the surrounding neighborhood, traffic
impacts to the intersection of Five Mile Road and Waikiki Road, and
incompatibility of the proposed amendment with Goals and Policies
UL.2.16, UL.2.l7, UL.7.1 and UL.7.2 of the Spokane County
Comprehensive Plan.
18. Potential traffic impacts are properly addressed at project review
level to be conducted pursuant to Spokane County Code as specified in
Spokane County Division ofEngineering and Road correspondence dated
August 2, 2011 which advise the applicant that "at such time a site plan is
submitted for review the applicant shall submit detailed traffic information
for "review by the County Engineer to determine what traffic impacts, if
any, that the development would have on surrounding infrastructure. The
applicant is advised that mitigation may be required for off-site
improvements."
19. Subsequent to the public hearing on November 22,2011
regarding 11-CPA-05, the applicant, at the Board's request, provided a trip
generation/distribution letter dated November 23, 2011 that provided
documentation that provision of a second access point from the site to
Waikiki Road would reduce the number of vehicle trips using Five Mile
Road and more specifically in the p.m. peak hours and less trips than the
previously approved preliminary plat approved for the subject property
(PN-1974-06: Redstone).
20. The proposed amendment is consistent with the criteria for a
zone reclassification under Section 14.402.040 (1) and (2) of the Spokane
County Zoning Code as the proposed amendment implements the goals and
objectives of the Comprehensive Plan and the subject area has experienced
a change of conditions as evidenced by development of duplex dwelling
units in proximity to the subject property thereby creating a mix of land use
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types and densities in the Urban Growth Area boundary.
21. Traffic impacts from the proposal will be mitigated for
compliance with Spokane County Code and concurrency standards at the
project level as specified by the Division of Engineering and Roads in their
comments regarding the proposed amendment dated August 2, 2011.
22. Traffic impacts from the proposed amendment may be further
mitigated by provision of a second access point to Waikiki Road, to be
reviewed at the project level, which will reduce the number of vehicle trips
on Five Mile Road as evidenced by the trip distribution letter submitted by
the applicant on November 23, 2011.
23. The proposed amendment is consistent with Spokane County
Comprehensive Plan Goals and Policy UL.2.16 that encourage location of
medium and high density residential categories with good access to major
arterials such as Waikiki Road, which is designated as an Urban Minor
Arterial.
24. The proposed amendment is consistent with the Spokane County
Comprehensive Plan Goal and Policy UL.2.17 as the subject property is
located inside the Urban Growth Area, is served with public utilities,
provides a range of housing types and densities, is considered infill
development of a site with development constraints due to site topography
and proximity to existing transmission lines for electricity, an Avista
Substation, and a natural gas pipeline.
25. The Board finds that the proposed amendment is consistent with
the Spokane County Comprehensive Plan Goals and Objectives UL.7,
UL.7.1, UL.7.2, UL.7.3, UL7.I2, UL.8, UL.8.1, UL.9a, UL.9b, H.3a,
CF.3.I as the subject site is served with public utilities, is located in the
Urban Growth Area, has adequate capacity for public sewer, will create an
urban area with a variety of housing types and prices with a variety of
residential densities, constitutes limited infill development, and is located in
an area where adequate public facilities and services can be provided
without decreasing levels of service.
26. Approval of the proposed amendment should be conditioned
upon a development agreement between the proponent of the amendment
and Spokane County requiring at a minimum that development upon the
property will provide public access to and improvements to Waikiki Road
including curbs, gutters, sidewalks and drainage as required by applicable
codes, regulations and Spokane County Road standards based upon the
development proposed upon the property and review of a detailed traffic
analysis. The internal road within the development shall be constructed to
20
No. 31941-5-III
Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd.
Spokane County Road Standards, shall include sidewalks on both sides to
facilitate a future pathway, shall be owned and maintained by the property
owner until site development is complete at which time ownership and
maintenance shall be transferred to Spokane County and provide a
termination at the west property line to provide public access to adjoining
properties with the intent of mitigation of vehicular traffic on Five Mile
Road and provide access to Waikiki Road consistent with Spokane County
Road standards.
BE IT FURTHER RESOLVED, that approval of proposed
amendment No. 11-CPA-05 and the concurrent zone reclassification thereto
shall only be of effect upon execution of a Development Agreement
pursuant to RCW 36.70B as described above in finding number 26.
AR at 9-14.
In paragraph 26 of Resolution 11-1191, the Spokane County Board of County
Commissioners conditioned its approval of ll-CPA-05 on Douglass providing public
access to and improvements to Waikiki Road including curbs, gutters, sidewalks, and
drainage, and on the county and Douglass first entering a development agreement. The
Board of County Commissioners reiterated that traffic concerns should be addressed later
during the project review process.
PROCEDURE
On February 27, 2012, Five Mile Prairie Neighborhood Association and
Futurewise petitioned the Growth Management Hearings Board for review of the
approval of Spokane County comprehensive plan amendment ll-CPA-05 and another
amendment found in Resolution 11-1191. Both organizations claimed that its members
included landowners and residents of Spokane County who were aggrieved and adversely
21
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Spokane County v. E. Wash. Growth Mgmt. Hr'gs Bd.
affected by the county's adoption of the resolution.
On March 27, 2012, Douglass moved to intervene in the GMHB proceeding. On
April 4, 2012, the GMHB allowed Douglass to intervene. The prehearing order and
order granting intervention read, in part:
A party who fails to attend or participate in any hearing or other
stage of the adjudicative proceedings before the Board in this case may be
held in default and an order of default or dismissal may be entered pursuant
to WAC 242-03-710.
The GMHB served Douglass with this order.
Before the GMHB, the Neighborhood Association challenged amendment 11­
CPA-OS as inconsistent with Spokane County's comprehensive plan and several of its
development regulations. The Neighborhood Association also argued that the
amendment did not satisfy Spokane County Code 14.402.040's criteria for amendments.
Spokane County countered that the GMHB lacked jurisdiction to review amendment 11­
CPA-OS. The county casted the rezone as a project permit, appealable to superior court
under the Land Use Petition Act (LUPA), chapter 36.70C RCW, and not a development
regulation or comprehensive plan amendment appealable to the GMHB.
On July 19,2012, the GMHB conducted a hearing on the merits. Douglass neither
appeared at the hearing nor filed a brief. At the conclusion of the hearing, the GMHB
moved to dismiss Douglass.
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No. 31941-5-III
Spokane County v. E. Wash. Growth Mgmt. Hr'gs Bd.
On August 23,2012, the GMHB iss~ed its final decision and order. The GMHB
first ruled it had jurisdiction to review the concurrent rezone. The GMHB then dismissed
Douglass as a party, writing:
Intervenor Harley C. Douglass, Inc. failed to file any brief and failed
to attend the July 19,2012 Hearing on the Merits. Pursuant to WAC 242­
03-710, the Board on its own motion entered an Order of Dismissal of
Harley C. Douglass, Inc. for failure to file any brief and failure to attend the
Hearing on the Merits.
AR at 1018. The GMHB served this order on Douglass.
In its August 23 final decision, the GMHB concluded that Spokane County failed
to comply with the Growth Management Act when it enacted Resolution 11-1191, as it
relates to amendment ll-CPA-05. The GMHB began its analysis by recognizing the
deference owed local governments:
For the purposes of board review ofthe comprehensive plans and
development regulations adopted by local government, the GMA
establishes three major precepts: a presumption of validity; a "clearly
erroneous" standard of review; and a requirement of deference to the
decisions of local government.
AR at lOll.
In its final decision, the GMHB found amendment II-CPA-05 consistent with
Spokane County comprehensive plan policies to: "[e]nsure that the design of infill
development preserves the character of the neighborhood," policy H.3.2; "[i]dentifY and
designate land areas for residential use, including categories for low-, medium-, and high-
density areas," policy UL.7.1; and "[s]ite multifamily homes throughout the Urban
23
No. 31941-5-111
Spokane County v. E. Wash. Growth Mgmt. Hr'gs Bd.
Growth Area," policy UL.2.17. AR at 1020, 1021, lO24. The GMHB found the
amendment inconsistent, however, with three of the policies in Spokane County's
comprehensive plan: UL.2.16, UL.2.20, and CF.3.1. Under urban land use policy 2.16,
Spokane County should: "Encourage the location of medium and high density residential
categories near commercial areas and public open spaces and on sites with good access to
major arterials." AR at 247. The GMHB noted that much of the opposition to the
proposed amendment to the comprehensive plan concerned access to Five Mile Road.
The GMHB further observed that the Spokane County Planning Commission
recommended denial of the proposed amendment due to outdated roads to the Douglass
site. According to the GMHB, Five Mile Road is steep, windy, and lacks
accommodations for pedestrians or bicyclists. Yet, Five Mile Road will be one of the
access points for the proposed development despite neither the County nor the developer
having any plans for transportation improvements to Five Mile Road.
In its final decision, the GMHB noted that, after the Planning Commission vote,
Douglass submitted a letter to the county stating that "the development traffic is proposed
to primarily use Waikiki Road to access the development with little to no need for the use
of Five-Mile Road." AR at 693. Nevertheless, the GMHB observed that the potential
road would wind across closely packed contour lines as it traverses steep terrain. The
GMHB held that the County Commissioners findings of fact 22 and 23 were not based on
substantial evidence. Finding of fact 23 inconsistently stated there was good access to
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Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd.
major arterials such as Waikiki Road but the record showed that Waikiki Road is a minor
arterial not a major arterial. Five Mile Road is a steep, windy, two lane road that has no
arterial designation. The GMHB further ruled that the site of the proposed development
lacked good access to major arterials, and amendment II-CPA-05 was inconsistent with
and thwarts Spokane County comprehensive plan policy UL.2.I6.
Under Spokane County comprehensive plan urban land use policy 2.20, Spokane
County must encourage multifamily projects to be arranged in a pattern of connecting
streets and blocks, but the policy also allows cul-de-sacs or other closed street systems
under certain circumstances including, but not limited to, topography and other physical
limitations which make connecting systems impractical. In its August 23, 2012 final
decision, the GMHB held amendment II-CPA-05 to contravene UL.2.20. In so ruling,
the GMHB repeated its comments about poor access to the site. The GMHB focused on
the inability of pedestrians and bicyclists to access the proposed development from either
Five Mile Road or Waikiki Road.
Under Spokane County Capital Facilities and Utilities policy 3.1: "Development
shall be approved only after it is determined that public facilities and services will have
the capacity to serve the development without decreasing levels of service below adopted
standards." AR at 276. The GMHB found that amendment II-CPA-05 thwarted policy
CF.3.l. The GMHB emphasized the Planning Commission's findings that Five Mile
Road would not be suitable for children to walk along to attend school, and in recognition
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No. 3I941-S-III
Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd.
of the lack of any pedestrian facilities, the schools have incurred significantly increased
costs to transport school children who live near Five Mile Road. The GMHB found that
there was substantial evidence in the record showing that school facilities lack capacity to
serve the proposed medium density development.
The GMHB also concluded that amendment II-CPA-OS does not meet the criteria
for a zone reclassification as mandated under SCZC section 14.402.040. The code
section provides, in relevant part:
The County may amend the Zoning Code when one of the following
is found to apply.
1. The amendment is consistent with or implements the
Comprehensive Plan and is not detrimental to the public welfare.
2. A change in economic, technological, or land use conditions has
occurred to warrant modification of the Zoning Code.
6. An amendment is deemed necessary by the Commission and/or
Board as being in the public interest.
AR at 177-78.
Douglass argued before the Spokane County Board of Commissioners and the
GMHB that the previously approved Redstone plan was no longer feasible in this
economy of surplus single family residential lots and rising construction costs. In its
August 23 decision, the GMHB rejected this argument, reasoning:
I
The development of duplex dwelling units in proximity to the
subject property cannot constitute a change in circumstances under SCZC I
14.402.040(2) since duplexes are already a permitted use in the "Low
Density Residential" zone and so there is no need to change the zoning to
accommodate duplexes.
,
I
t
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Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd.
Moreover, if zoning classifications could be readily changed
whenever there are cyclical market fluctuations (as advocated by
applicant's engineering consultant), then property owners could lose the
reliance value of the zoning code and thereby frustrate the investment
backed expectations of homeowners.
AR at 1029 (footnotes omitted).
Ultimately, the GMHB invalidated amendment II-CPA-OS under RCW
36.70A.302. The GMHB concluded the amendment substantially interfered with GMA
goals (1), (3), and (12) in RCW 36.70A.020, which read:
(1) Urban growth. Encourage development in urban areas where
adequate public facilities and services exist or can be provided in an
efficient manner.
(3) Transportation. Encourage efficient multi modal transportation
systems that are based on regional priorities and coordinated with county
and city comprehensive plans.
(12) Public facilities and services. Ensure that those public facilities
and services necessary to support development shall be adequate to serve
the development at the time the development is available for occupancy and
use without decreasing current service levels below locally established
minimum standards.
The GMHB wrote:
The Board has determined that Spokane County failed to comply
with the GMA and has remanded this matter to the County to achieve
compliance under RCW 36.70A.300. The Board hereby finds and
concludes that the continued validity of Amendment II-CPA-OS would
substantially interfere with the fulfillment ofGMA Planning Goals 1,3,
and 12.
Moreover, there is evidence in the record indicating a risk for project
vesting in this case, which would render GMA planning procedures as
ineffectual and moot-if such project vesting would occur, then the remand
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No. 31941-5-111
Spokane County v. E. Wash. Growth Mgmt. Hr gs Bd.
J
of this case to the County would be meaningless and there would be no
practical way to address GMA compliance.
Conclusion
Based upon the foregoing, the Board determines that the continued
validity of Amendment ll-CPA-OS would substantially interfere with the
fulfillment ofRCW 36A.70A.020(1) [Urban Growth], .020(3)
[Transportation], .020(12) [Public facilities and services]. Therefore, the
Board issues a Determination of Invalidity as to Comprehensive Plan
Amendment ll-CPA-OS.
AR at 1034.
Douglass and Spokane County filed separate petitions with Spokane County
Superior Court for review of the GMHB's final decision and order. The superior court
consolidated the appeals. Before the superior court, Douglass and the county again
argued that the GMHB lacked jurisdiction. Douglass also argued the GMHB erred when
it dismissed it from the proceedings.
The superior court reversed the GMHB on all grounds. The court ruled that the
GMHB lacked subject matter jurisdiction to review the concurrent rezone. The superior
court reversed the GMHB's dismissal of Douglass "because Harley C. Douglass, Inc.
complied with the GMHB's orders and the requirements for intervention before the
GMHB so the GMHB erroneously interpreted or applied the law and/or abused its
discretion." CP at 494. Last, the superior court reversed the GMHB's invalidation of
amendment ll-CPA-OS, because "the County's planning decision was not clearly
erroneous in view of the entire record." CP at 494-95. The Spokane County Superior
Court remanded to the GMHB with instructions to enter an order finding the county in
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No. 31941-5-III
Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd.
compliance with GMA when adopting amendment II-CPA-05.
LA W AND ANALYSIS
Issue I: Whether the GMHB correctly dismissed Douglass from its proceeding?
Answer I: We decline to resolve this issue, because its resolution does not impact
the merits of the appeal.
Before addressing the merits of the Neighborhood Association's appeal, we must
address two procedural questions. First, the GMHB dismissed Douglass from its
proceeding because of Douglass' failure to file a brief and appear at the hearing. The
Neighborhood Association assigns error to the trial court's reversal of this dismissal. The
Neighborhood Association argues WAC 242-03-710 supports the GMHB 's ruling. As a
preliminary issue, the Neighborhood Association also contends that, because no party
challenged Douglass' dismissal before the GMHB, the GMHB's action could not be
challenged on appeal to the superior court or litigated in this court. In turn, Douglass
contends that, regardless of its dismissal from the GMHB proceeding, it had standing,
under the Administrative Procedure Act, chapter 34.05 RCW, to participate in the trial
court proceeding and has standing for the same reason to participate in this appeal.
Douglass emphasizes RCW 34.05.530, which gives standing to obtain judicial review of
agency action to any person aggrieved or adversely affected by the agency action.
We decline to resolve the issue of Douglass' standing because its resolution does
not impact our decision on the merits. Principles ofjudicial restraint dictate that if
29
No.3l941 5 III
M M
Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd.
resolution of another issue effectively disposes of a case, we should resolve the case on
that basis without reaching the first issue presented. Wash. State Farm Bureau Fed'n v.
Gregoire, 162 Wn.2d 284,307, 174 P.3d 1142 (2007); Hayden v. Mut. o/Enumclaw Ins.
Co., 141 Wn.2d 55, 68, 1 P.3d 1167 (2000).
Even if we ruled that Douglass could not participate in this appeal, Spokane
County would remain a party. Spokane County forwards the same arguments on the
merits of the appeal as forwarded by Douglass. Dismissing Douglass would not narrow
those arguments. Douglass raises some arguments about the GMHB's subject matter
jurisdiction that the county does not raise. Nevertheless, as shown below, we reject those
arguments.
Issue 2: Whether the GMHB held subject matter jurisdiction over the petition
challenging Resolution 11-1191 and amendment l1-CPA-05 adopted concurrently by
Spokane County?
Answer 2: Yes.
The second procedural question for us to address arises from the trial court's
ruling that the GMHB lacked subject matter jurisdiction over the Neighborhood
Association's petition. The Neighborhood Association assigns error to this ruling. Ifwe
affirmed this ruling by the trial court, we need not address the merits of the appeal.
Nevertheless, we reverse the trial court's ruling on subject matter jurisdiction.
RCW 36.70A.280 bestows jurisdiction upon the GMHB over limited subject
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No. 31941-5-111
Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd.
matters. The statute reads, in relevant part:
( 1) The growth management hearings board shall hear and determine
only those petitions alleging either:
(a) That, except as provided otherwise by this subsection, a state
agency, county, or city planning under this chapter is not in compliance
with the requirements of this chapter ... or chapter 43.21 C RCW as it
relates to plans, development regulations, or amendments, adopted under
RCW 36.70A.040 or chapter 90.58 RCW.
(Emphasis added.)
The plans, to which RCW 36.70A.280 refers, are comprehensive plans. RCW
36.70A.040. The definition of "development regulation" includes "zoning ordinances,"
but excludes "approval of a project permit application" as defined in RCW
36.70B.020(4). RCW 36.70A.030(7). RCW 36.70B.020(4) defines a "project permit
application" as:
any land use or environmental permit or license required from a
local government for a project action, including but not limited to building
permits, subdivisions, binding site plans, planned unit developments,
conditional uses, shoreline substantial development permits, site plan
review, permits or approvals required by critical area ordinances, site­
specific rezones authorized by a comprehensive plan or subarea plan, but
excluding the adoption or amendment ofa comprehensive plan, subarea
plan, or development regulations except as otherwise specifically included
in this subsection.
(Emphasis added.)
Resolution of subject matter jurisdiction in this appeal depends on whether we
characterize amendment II-CPA-05 to the county's comprehensive plan as a rezone, on
the one hand, or a project permit or site-specific rezone authorized by a previously
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No.31941-5-III
Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd.
existing comprehensive plan, on the other hand. The resolution has characteristics of
both. If the amendment is a rezone, the GMHB held subject matter jurisdiction. We hold
the resolution and corresponding comprehensive plan amendment to be a rezone other
than a site-specific rezone. We also note that Spokane County's argument that the
amendment constituted a project permit contradicts its position on the merits that no
relief should be granted the Neighborhood Association because its complaints about the
proposed project can be heard at the permitting stage.
After the trial court's ruling, this court issued its opinion in Spokane County v.
Eastern Washington Growth Management Hearings Board, 176 Wn. App. 555, 309 P.3d
673 (2013), review denied, 179 Wn.2d 1015 (2014) (Spokane County II). We deem
Spokane County II controlling. In that case, as here, the Spokane County Board of
I
Commissioners amended the county's comprehensive plan and rezoned certain property
in one legislative action. We addressed whether the rezone was an amendment to a
development regulation subject to challenge under the GMA or a project permit subject
to review under LUPA. We held the GMHB had jurisdiction because the rezone was
adopted at the same time as the comprehensive plan amendment:
Considering all, we hold a site-specific rezone is a project permit
approval under LUPA ifit is authorized by a then-existing comprehensive
plan and, by contrast, is an amendment to a development regulation under
i
the GMA if it implements a comprehensive plan amendment. In sum, the
hearings board had subject matter jurisdiction to review amendment 07­
f
CPA-05's rezone for compliance with both the GMA and SEPA. See I
former RCW 36.70A.280(l)(a), .290(2).
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No.3l94l-5-III
Spokane County v. E. Wash. Growth Mgmt. Hr'gs Bd
Spokane County 11, 176 Wn. App. at 572 (emphasis added). Thus, if the county authority
adopts the rezone concurrent with the amendment to the comprehensive plan, the GMHB
can assume subject matter jurisdiction under the GMA.
In this appeal, Spokane County respectfully disagrees with our analysis in Spokane
County 11, but concedes its application. Douglass urges reversal of Spokane County 11.
Douglass argues Spokane County 11 failed to explain when and how a comprehensive
plan becomes "existing," and then Douglass poses hypothetical questions in an attempt to
belittle our holding.
Douglass first asks: if a county adopts a rezone one day after the authorizing
amendment to a comprehensive plan, is the amended plan an "existing planT' Stated
differently, do the rezone and the amendment to the comprehensive plan retain
concurrent status if not adopted on the same day? Or does the rezone implement an
already existing comprehensive plan if the county adopts the rezone a day after the
authorizing amendment to the comprehensive plan? Douglass presumably wishes to
drive the point that a government entity could avoid application of Spokane County 11 by
always adopting a requested rezone one day, or perhaps even one hour, after amending
the comprehensive plan, such that the two are no longer concurrent or subject to the
GMHB's jurisdiction. Since no delay occurred in the adoption of the rezone here,
however, we need not address Douglass' question.
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No. 31941-5-111
Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd.
Douglass also asks the existential question: "If the GMHB upheld an amendment
to a comprehensive plan, would the comprehensive plan, as amended, then become an
'existing' comprehensive plan such that the concurrent rezone became 'authorized' and
therefore a 'project permit' over which the GMHB lacked jurisdiction?" Br.ofResp't
Harley C. Douglass at 17. In other words, is the amendment in existence before approval
by the GMHB? We believe the answer is no, since the upholding of an amendment is not
itself a second amendment. Under RCW 36.70A.320(1), comprehensive plans and
amendments thereto are presumed valid upon adoption.
In Washington, the doctrine of stare decisis requires a clear showing that an
established rule is incorrect and harmful before it is abandoned. Riehl v. Foodmaker,
Inc., 152 Wn.2d 138, 147,94 P.3d 930 (2004); In re Rights to Waters ofStranger Creek,
77 Wn.2d 649, 653,466 P.2d 508 (1970). Douglass has not met its burden of showing
Spokane County II was incorrectly decided or that its holding is harmful.
Issue 3: Whether the GMHB erred when declaring amendment II-CPA-05 to be
inconsistent with Spokane County's comprehensive plan policy UL.2.16?
Answer 3: No.
We now begin our analysis of each of the alleged inconsistencies of the
comprehensive plan amendment with the preexisting Spokane County comprehensive
plan and the county zoning code. The GMHB found amendment II-CPA-05 inconsistent
with three of Spokane County's comprehensive plan policies: UL.2.I6, UL.2.20, and
34
No. 31941-5-III
Spokane County v. E. Wash. Growth Mgmt. Hr'gs Ed.
CF.3.1. We address separately whether the plan amendment violated the respective
polices. We later address whether any such violations compels the invalidation of
amendment 11-CPA-05.
The central purpose ofthe Growth Management Act is to coordinate land use,
zoning, subdivision, planning, development, natural resources, public facilities, and
environmental laws into one scheme in order to concentrate new development in compact
urban growth areas, while conserving environmentally critical land and valuable natural
resources. Richard L. Settle & Charles G. Gavigan, The Growth Management Revolution
in Washington: Past, Present, and Future, 16 U. PUGET SOUND L. REv. 867,872-73
(1993). The GMA requires counties to compose comprehensive plans to responsibly
manage their growth and to enact regulations to effectuate those plans. A comprehensive
plan is a guide or blueprint to be used when making land use decisions. Citizens for
Mount Vernon v. City ofMount Vernon, 133 Wn.2d 861,873,947 P.2d 1208 (1997).
Several GMA provisions impose requirements upon the comprehensive plan and plan
amendments. RCW 36.70A.l30(1 )(d) dictates:
Any amendment of or revision to a comprehensive land use plan
shall conform to this chapter [the Growth Management Act]. Any
amendment of or revision to development regulations shall be consistent
with and implement the comprehensive plan.
RCW 36.70A.070 commands: "The plan shall be an internally consistent document."
Under the GMA, a newly adopted or amended development regulation must be
35
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s No. 31941-5-III
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"consistent with and implement the comprehensive plan." RCW 36.70A.040(3)(d),
(4)(d), (5)(d); See, e.g., Spokane County II, 176 Wn. App. at 574-75. There need not be
strict adherence, but any proposed land use decision must generally conform to the
comprehensive plan. Citizens/or Mount Vernon, 133 Wn.2d at 873; Barrie v. Kitsap
County, 93 Wn.2d 843,849,613 P.2d 1148 (1980). Ultimately, the comprehensive plan
and any amendment to it must obey the GMA' s clear mandates. Spokane County IJ, 176
Wn. App. at 575. The GMHB is charged with adjudicating GMA compliance and
invalidating noncompliant comprehensive plans. RCW 36.70A.280; .302; City 0/
Arlington v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 164 Wn.2d 768, 778, 193 P.3d
1077 (2008).
Under Spokane County's comprehensive plan Urban Land Use (UL) policy 2.16,
the county must: "Encourage the location of medium and high density residential
categories near commercial areas and public open spaces and on sites with good access to
major arterials." AR at 247. The Spokane County Board of Commissioners found:
23. The proposed amendment is consistent with Spokane County
Comprehensive Plan Goals and Policy UL.2.16 that encourage location of
medium and high density residential categories with good access to major
arterials such as Waikiki Road, which is designated as an Urban Minor
Arterial.
AR at 13 (emphasis added). The County's findings of fact did not address whether the
Douglass project would lie near commercial areas or public open spaces. The GMHB
held that the finding of fact 23 was not based on substantial evidence. We agree.
36
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No. 31941-5-111
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We first address whether the Douglass site is near commercial areas and public
open spaces. The Spokane County Board of Commissioners entered no finding that the
land lay near either. The Douglass land is .9 miles from the nearest commercial area.
Spokane County argues that the Neighborhood Association does not indicate what
1
constitutes or what distance constitutes "near." Although we agree that the
Neighborhood Association provides no help in measuring nearness in this context, the
Ii
Spokane County Board of Commissioners also afforded us no assistance. Instead, the
Board of Commissioners ignored the policy language. In its brief, Spokane County also I
fails to supply any definition for "near." We will therefore defer to the GMHB who did
not consider .9 miles to be near the proposed development. Presumably the policy seeks
!
to provide shopping areas within reasonable walking distance for the large number of
residents of a medium density development. Although many people walk more than .9
miles each day, few people walk this distance for shopping purposes.
The county also contends policy UL.2.16 only "encourages" closeness and good
access. It does not "demand" closeness or good access. Along these lines, the county
argues that policy UL.2.16 is only one of competing goals to be balanced with other
goals. The weighing of these goals, Spokane County argues, is for the local government
and not the GMHB. We might consider these arguments compelling had the Spokane
County Board of Commissioners weighed, on the record, the various goals and polices of
the GMA. It did not. We will return to these arguments and our response when we
37
No. 31941-5-III
Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd.
determine if amendment ll-CPA-05 should be declared invalid. Our decision in Spokane
County I, 173 Wn. App. 310 (2013) addressed the use of the word "encourage" in the
context of addressing the invalidity of the zoning amendment. 173 Wn. App. at 333. We
note that in Spokane County I, this court held that the rezoning amendment passed muster
under Spokane County's UL.2.16 because the high density project was adjacent to a
shopping center and surrounding commercial development.
UL.2.16 also desires that the Douglass site benefit from good access to major
arterials. Douglass' property abuts two roads: Five Mile Road and Waikiki Road. Five
Mile Road is not a major arterial. For the first time on appeal, Spokane County argues
that Waikiki Road is a major arterial. We must limit our response to the county's
argument to the record before the GMHB. Pierce County SherifJv. Civil Servo Comm 'n
for Sheriff's Emp. ofPierce County, 98 Wn.2d 690,693-94,658 P.2d 648 (1983). The
record defeats the county's argument.
A hearing examiner addressing Douglass' Redstone application wrote that Waikiki
Road is a minor principal arterial. Nevertheless, the examiner's finding is not a direct
source for this information. Also, the examiner's use of the adjective "principal" rather
than "major," lessens the credibility of the finding. "Minor" and "principal" are
inconsistent terms.
The Department of Building and Planning staff report identified Waikiki as a
It
"Minor Urban ArteriaL" Douglass' letter to the Board of Commissioners labels Waikiki
38
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Road as minor arterial. Spokane County's own internally inconsistent finding of fact 23
designates Waikiki Road as minor arterial.
Spokane County agrees that the record before the Board of Commissioners and the
GMHB only labeled Waikiki Road as a minor arterial. Spokane County claims any
identification ofWaikiki Road as a minor arterial is an unfortunate error and asks this
court to take judicial notice of Spokane County's Arterial Road Map, available at
wwW.spokanecounty.orgidataiengineers/traffic/arterialroadmap.pdf, which identifies
Waikiki as an "urban principal arterial." We deny Spokane County's request.
ER 201 permits a court to take judicial notice of "adjudicative facts ... not subject
to reasonable dispute" in the sense that they are either "( 1) generally known within the
territorial jurisdiction of the trial court or (2) capable of accurate and ready determination
by resort to sources whose accuracy cannot reasonably be questioned." Spokane County
does not isolate which ground or grounds it forwards in asking us to take judicial notice.
We do not consider the classification ofWaikiki Road's status to be common knowledge
within Spokane County, nor does the county argue such. We also know of no decision
that recognizes an Internet web page to be a source whose accuracy cannot reasonably be
questioned. In In re Marriage o/Meredith, 148 Wn. App. 887,904,201 P.3d 1056(2009), the husband asked this court to take judicial notice of information on internet
sites of immigrant rights organizations in order to support his claim of judicial bias. This
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Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd.
court reasoned, with double negatives, that information contained on the internet sites
were not from a source whose accuracy cannot reasonably be questioned.
We recognize that Spokane County asks us to take judicial notice of information
on a government entity website, rather than a website of questionable origin.
Nevertheless, we will not take judicial notice of information on a government website
that is inconsistent with all evidence before the government entity and contrary to the
entity's own findings of fact.
The Spokane County Board of Commissioners also found that the Douglass land
garnered good access to Waikiki Road. The GMHB correctly concluded that substantial
evidence did not support this finding. A review of the record shows no evidence
supported the finding. "Good access" is more of an opinion than a fact, because of the
modifier "good." Spokane County failed to include in its finding any underlying facts
upon which it found good access to Waikiki Road.
Unlike other policy goals couched in concurrency language, policy UL.2.16 seeks
good access presently, as opposed to simply by completion of development. At the
present, the site lacks direct access to Waikiki Road. Douglass' engineer included a map
depicting a potential site road joining with Waikiki Road. This street would wind across
closely packed contour lines as it traverses steep terrain. These characteristics are not
hallmarks of good access. Finally, Douglass previously represented, when advocating the
Redstone subdivision, that an access road to Waikiki Road was impossible.
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Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd.
Spokane County may also rely on its conditioning of amendment Il-CPA-OS on
the developer's entering a development agreement requiring access to Waikiki Road.
This reliance is misplaced since UL.2.16 desires current, good access. The proposed
street is neither current nor good.
Spokane County contends that policy UL.2.16 does not capitalize "major arterial"
and the term is not defined in the comprehensive plan. So, argues the county, the
definition of "major arterial" is not necessarily the same as found in the county
classification system, and the Board of Commissioners was therefore free to conclude
that Waikiki Road is a major arterial. Spokane County is using doublespeak. The county
fails to provide us any other definition for "major arterial." The Board of Commissioners
failed to include in its findings why Waikiki Road should be considered a major arterial
when it is otherwise designated a minor arterial.
Spokane County relies on our decision in Spokane County I. In Spokane County I,
we ruled that the county only needs to ensure sufficient facilities at time of development,
not at the time of amending its comprehensive plan. Nevertheless, this ruling was not
based on UL.2.16, but on the GMHB's use ofRCW 36.70A.070(6)(b) to invalidate the
zoning amendment. The statute demands concurrency. Concurrency does not exact
sufficient utilities and roads until someone begins to live on the land. UL.2.16
encourages currency, which is sufficient roads in the present. Thus, the county's reliance
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is misplaced. Spokane County I did not address the question of whether the decision's
proposed development enjoyed good access to a major arterial.
Spokane County may argue that, under policy UL 2.16, the acreage need not enjoy
good access to major arterials, if the site remains near commercial areas. We do not read
the policy as such since the policy employs the word "and" between commercial areas
and good access. We presume "and" functions conjunctively. State v. Kozey, 183 Wn.
App. 692, 698, 334 P.3d 1170 (2014), review denied, 182 Wn.2d 1007 (2015). Also,
nearness to a commercial area does not lessen the need for a major arterial. To the
contrary, this closeness may increase the need.
We would be remiss to continue without now discussing the standards of review
for the GMHB, the superior court, and this appellate court. The GMA directs the GMHB
to grant Spokane County considerable deference in its planning decisions. RCW
36.70A.320(3) reads:
In any petition under this chapter, the board, after full consideration
of the petition, shall determine whether there is compliance with the
requirements of this chapter. In making its determination, the board shall
consider the criteria adopted by the department under RCW 36. 70A.190(4).
The board shall find compliance unless it determines that the action by the
state agency, county, or city is clearly erroneous in view ofthe entire record
before the board and in light of the goals and requirements of this chapter.
To find an action "clearly erroneous," the GMHB must be left with the firm and definite
conviction that a mistake has been committed. King County v. Cent. Puget Sound
Growth Mgmt. Hr'gs Bd, 142 Wn.2d 543,552, 14 P.3d 133 (2000).
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Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd.
The GMA contains a unique provision, adopted by the state legislature in 1997,
presumably because the legislature concluded that the GMHB failed to give sufficient
deference to local government planning decisions. RCW 36.70A.320 I reads:
The legislature intends that the board applies a more deferential
standard of review to actions of counties and cities than the preponderance
of the evidence standard provided for under existing law. In recognition of
the broad range of discretion that may be exercised by counties and cities
consistent with the requirements of this chapter, the legislature intends for
the board to grant deference to counties and cities in how they plan for
growth, consistent with the requirements and goals of this chapter. Local
comprehensive plans and development regulations require counties and
cities to balance priorities and options for action in full consideration of
local circumstances. The legislature finds that while this chapter requires
local planning to take place within a framework of state goals and
requirements, the ultimate burden and responsibility for planning,
harmonizing the planning goals of this chapter, and implementing a
county's or city's future rests with that community.
This GMA provision shows the legislature's desire that the GMHB reluctantly declare a
county action to be noncompliant or invalid. This deference is not unlimited, however.
Our state high court observed:
Without question, the "clearly erroneous" standard requires that the
Board give deference to the county, but all standards of review require as
much in the context of administrative action. The relevant question is the
degree of deference to be granted under the "clearly erroneous" standard.
The amount is neither unlimited nor does it approximate a rubber stamp. It
requires the Board to give the county's actions a "critical review" and is a
"more intense standard of review" than the arbitrary and capricious
standard.
Swinomish Indian Tribal Cmty. v. W. Wash. Growth Mgmt. Hr'gs Bd., 161 Wn.2d 415,
435 n.8, 166 P.3d 1198 (2007).
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Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Ed.
Spokane County and Douglass lost before the GMHB. When a party appeals a
GMHB decision to a court, the court reviews the board decision, not the local
government action. RCW 36.70A.300(5). We do not defer to the Superior Court.
Spokane County /1, 176 Wn. App. at 564-65 (2013). On review, we stand in the same
position as a superior court reviewing a board's decision. Lewis County v. W. Wash.
Growth Mgmt. Hr'gs Bd., 157 Wn.2d 488,497, 139 PJd 1096 (2006). The court, be it
the superior court or an appeals court, applies a different standard of review from that of
the GMHB as supplied by the Washington Administrative Procedure Act. RCW
34.05.570 reads, in pertinent part:
(1) Generally. Except to the extent that this chapter or another statute
provides otherwise:
(a) The burden of demonstrating the invalidity of agency action is on
the party asserting invalidity;
(3) Review of agency orders in adjudicative proceedings. The court
shall grant relief from an agency order in an adjudicative proceeding only if
it determines that:
(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 before the court, which includes the
agency record for judicial review, supplemented by any additional evidence
received by the court under this chapter;
(i) The order is arbitrary or capricious.
Under the potpourri of rules, we afford the GMHB deference, while the GMHB
grants the local government deference. Our job is easy if the GMHB affirms the local
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Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd.
county, but becomes problematic, because of the rival review standards, if the GMHB
reverses the local entity.
We conclude the GMHB gave Spokane County sufficient deference when it found
amendment Il-CPA-05 noncompliant with policy UL.2.I6. The Spokane County Board
of Commissioners failed to inform anyone what constitutes "near" under its
comprehensive plan policy that requires medium density housing to be near open space
or commercial zoning. The record revealed the absence of this desired nearness. The
undisputed evidence showed that the Douglass land lacks good access to a major arterial.
The Spokane County Board of Commissioners' action conflicted with its own planning
commission's findings and recommendations. The GMHB's finding of noncompliance is
supported by the evidence or lack thereof before it. The GMHB's order was neither
arbitrary nor capricious. We reverse the trial court's ruling to the extent that the trial
court reversed the GMHB's ruling concerning policy UL.2.16.
Issue 4: Whether the GMHB erred when ruling that amendment II-CPA-05 is
inconsistent with Spokane County's comprehensive plan policy UL.2.20?
Answer 4: Yes.
Spokane County's comprehensive plan urban land use policy 2.20 requires
Spokane County to: "Encourage new developments, including multifamily projects, to be
arranged in a pattern of connecting streets and blocks to allow people to get around easily
by foot, bicycle, bus or car. Cul-de-sacs or other closed street systems may be
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appropriate under certain circumstances including, but not limited to, topography and
other physical limitations which make connecting systems impractical." AR at 248. The
Spokane County Board of Commissioners failed to enter a finding of fact regarding
compliance with policy UL.2.20.
In its findings and conclusions, the GMHB focused on the ability of pedestrians
and bicyclists to access the proposed development from either Five Mile Road or Waikiki
Road and the danger of Five Mile Road and the proposed internal access road to Waikiki
Road. The GMHB thereby misapplied UL.2.20. The GMHB's concerns do not relate to
UL.2.20. By its express terms, UL.2.20 addresses the internal arrangement of streets
within a new development. The diagram that accompanies UL.2.20 bolsters this reading.
The diagram focuses on internal arrangement.
The Neighborhood Association argues that the proposed comprehensive plan map
amendment established that the site is not arranged in a pattern of connecting streets and
blocks, rather it is arranged in a cul-de-sac pattern of unconnected streets disfavored by
policy UL.2.20. This argument fails to note the second sentence of the policy, which
permits cul-de-sacs under circumstances of difficult terrain. Furthermore, the GMHB
either did not address this argument or, if it did, made no finding of a lack of connecting
streets. The record does not even show the Neighborhood Association forwarding the
argument to the GMHB. The GMHB did not hold amendment II-CPA-05 to thwart
policy UL.2.20 on this ground.
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Our review of an administrative decision is limited to a review of the record
below. Pierce County SherifJv. Civil Servo Comm 'nfor SherifJ's Emp. ofPierce County,
98 Wn.2d at 693-94 (1983). A corollary to this rule is that we do not address arguments
not raised below. We will not decide an appeal from an administrative agency when no
argument or evidence was presented to the agency concerning the issue. Int'l Ass 'n of
Firefighters, Local No. 469 v. Pub. Emp 't Relations Comm 'n, 38 Wn. App. 572, 579,686
P.2d 1122 (1984).
In Spokane County I, 173 Wn. App. at 341-342, we discussed UL.2.20 without
holding that the policy applies only internally. Instead, our opinion includes a discussion
about connections outside the development. We did not rest our decision, however, on
such a reading ofUL.2.20, but rather held any violation ofUL.2.20 was unimportant at
the zoning amendment stage since transportation elements would be addressed at project
permitting stage. This ruling is an additional reason for holding that amendment 11­
CPA-05 does not violate Spokane County comprehensive plan policy UL.2.20. Douglass
has yet to propose a plat.
We affirm the trial court to the extent the trial court reversed the GMHB's ruling
that amendment l1-CPA-05 violated policy UL.2.20. The GMHB's ruling was likely
based on an erroneous interpretation of the policy. Evidence does not support the
GMHB's ruling.
Issue 5: Whether the GMHB committed error when it ruled that amendment 11­
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Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd.
CPA-05 contravenes Spokane County comprehensive plan policy CF.3.1?
Answer 5: Yes.
Under Spokane County Comprehensive Plan Capital Facilities and Utilities (CF)
policy 3.1: "Development shall be approved only after it is determined that public
facilities and services will have the capacity to serve the development without decreasing
levels of service below adopted standards." AR at 276. In its finding of fact 25, the
Spokane County Board of Commissioners found the Douglass property rezone consistent
with CF.3.1 because the property is located "'in an area where adequate public facilities
and services can be provided without decreasing levels of service." AR at 13. In ruling
Resolution 11-1191 and amendment ll-CPA-05 inconsistent with policy CF.3.1, the
GMHB focused on local schools being at capacity and the costs those schools would
incur to bus children, who cannot safely walk along Five Mile Road.
We reverse this ruling of the GMHB for two reasons. First, adequacy of facilities
under policy CF.3.1 is determined at the project permit stage. Second, there is a lack of
evidence of decreasing education services below adopted standards. The GMHB's ruling
is contrary to law and not supported by substantial evidence.
The GMHB ruling and the Neighborhood Association argument clashes with our
decision in Spokane County J, 173 Wn. App. at 335. Comprehensive plan policy CF 3.1
regulates the conditions for "approval of a development." But a zoning "amendment is
not a development proposal." Spokane County J, 173 Wn. App. at 335. The rezone did
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Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd.
not authorize Douglass to develop the land. Without a specific project proposal, Spokane
County cannot determine whether the proposed development would overextend extant
public facilities and services.
Spokane County I, did not directly address Spokane County comprehensive plan
policy CF.3.1, but rather addressed transportation goals and policies that required
transportation system improvements concurrent with new development. Nevertheless,
the decision's reasoning applies in the context of policy CF.3.1, since the policy refers to
the time of development. We have held the time of development to be the project
permitting stage not the time of a rezone. The Neighborhood Association seeks to
distinguish Spokane County I from this appeal on the basis that CF.3.1 uses the word
"shall," and the transportation policies addressed in Spokane County I lacked this
imperative. Regardless, Spokane County I holds that development occurs at the
permitting stage.
Moving to the second basis of our reversal, in finding the comprehensive plan
amendment violative of policy CF.3.l, the GMHB relied only on the lack of capacity of
schools. Policy CF.3.1 demands that facilities have the capacity to serve the development
without decreasing levels of service below adopted standards. Evidence supports the
GMHB's finding that schools are at capacity and that schools incur additional busing
costs due to Five Mile Road's current condition. Nevertheless, the GMHB did not find
that the Douglass development would cause a decrease in the level of school services
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No. 31941-5-111
Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd.
below adopted standards. The GMHB heard no evidence of any education standards, let
alone a prospective breach of the standards. The school district's director of facilities
wrote that Douglass' request for a change in land use would have "an impact on schools."
AR at 343. But he did not elaborate on the anticipated impact. Likewise, while busing
children is expensive, nothing in the record shows busing would drop below an adopted
standard or the cost of busing would reduce other school standards.
The Neighborhood Association raises the legitimate concern that Spokane County
concurrency regulations do not allow it the opportunity to complain about the adequacy
of school, fire protection, and police services at the time that Douglass applies for a
project development permit. In forwarding this argument, the Neighborhood Association
moves beyond the GMHB ruling, which limited itself to school services, and worries
about the potential adequacy of police services, fire protection services, and solid waste
disposal, in addition to schools.
Concurrency is the prospective availability and adequacy of utilities, public
facilities, and public services at the time when residents begin to occupy a new housing
development. Spokane County Code (SCC) 13.650.102 distinguishes between direct and
indirect concurrency. Direct concurrency requirements apply to transportation, public
water, and public sewer facilities and demand that the developer show, when applying for
a project permit, that such facilities will be adequate. SCC 13.650.1 02(2). Indirect
concurrency requirements apply to fire protection, police protection, parks and recreation,
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No.31941-5-III
Spokane County v. E. Wash. Growth Mgmt. Hr'gs Bd.
libraries, solid waste disposal, and schools. SCC 13.650.102(3). Indirect concurrency is
determined annually during the update ofthe county's capital facilities plan. SCC
13 .650.1 02(3).
Despite these differences in concurrency evaluations, we find the Neighborhood
Association's argument wanting. The Neighborhood Association fails to explain why it
cannot register its concerns during the annual update ofthe capital facilities plan. More
importantly, Spokane County I, held that "development" in this context means the time of
permit application rather than a rezone. The Neighborhood Association has not shown
this holding in Spokane County I, to be incorrect or harmful, as to overcome the principle
of stare decisis.
The Neighborhood Association notes that the Spokane County comprehensive
plan uses the term "development" to all stages of the process of developing. The
Neighborhood Association also emphasizes that "development" is not defined in policy
CF.3.l. From this observation, the Neighborhood Association argues that all potential
problems with roads, schools, and other facilities should be resolved before the rezone
and not await the building process. Here again, the Neighborhood Association goes
beyond the ruling of the GMHB and even beyond its argument regarding indirect
concurrency limitations. The Neighborhood Association also does not show that the term
"development" as used in CF.3.1 means a rezone or demands resolving facility questions
before a rezone.
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No. 31941-5-III
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The Spokane County Board of Commissioners found that the Douglass land "is
located in an area where adequate public facilities and services can be provided without
decreasing levels of service." AR at 750. The Neighborhood Association argues that this
finding is different from a finding that public facilities and services will have the capacity
to serve the development without decreasing levels of service below adopted standards as
required by policy CF.3 .1. The Neighborhood Association emphasizes the lack of
planning to ensure a continued acceptable level of services. Nevertheless, the
Neighborhood Association carried the burden before the GMHB to show a likely drop of
services below accepted standards. The Neighborhood Association failed to present
evidence of this drop, let alone the applicable standards.
Issue 6: Whether the GMHB committed error when ruling that amendment 11­
CPA-05 disregards SCZC section 14.402.040?
Answer 6: No.
Spokane County Zoning Code [SCZC] 14.402.040 reads, in relevant part:
The County may amend the Zoning Code when one of the following
is found to apply.
1. The amendment is consistent with or implements the
Comprehensive Plan and is not detrimental to the public welfare.
2. A change in economic, technological, or land use conditions has
occurred to warrant modification of the Zoning Code.
Clerk's Papers (CP) at 521.
The Spokane County Board of Commissioners found:
I
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20. The proposed amendment [amendment ll-CPA-OS] is
consistent with the criteria for a zone reclassification under Section
14.402.040 (1) and (2) ofthe Spokane County Zoning Code as the proposed
amendment implements the goals and objectives of the Comprehensive
Plan and the subject area has experienced a change of conditions as
evidenced by development of duplex dwelling units in proximity to the
subject property thereby creating a mix of land use types and densities in
the Urban Growth Area boundary.
CP at 522 (footnote omitted). In reversing Spokane County, the GMHB reasoned:
The development of duplex dwelling units in proximity to the
subject property cannot constitute a change in circumstances under SCZC
14.402.040(2) since duplexes are already a permitted use in the "Low
Density Residential" zone and so there is no need to change the zoning to
accommodate duplexes.
Moreover, if zoning classifications could be readily changed
whenever there are cyclical market fluctuations (as advocated by
applicant's engineering consultant), then property owners could lose the
reliance value of the zoning code and thereby frustrate the investment
backed expectations of homeowners.
AR at 1029 (footnote omitted). We ask whether amendment ll-CPA-OS satisfies either
clause 1 or 2 of the zoning code section, or at least whether the Spokane County Board of
Commissioners reasonably found that the zoning change satisfied one of the clauses.
In its finding 20, the Board of Commissioners referred to the goals and objectives
ofthe comprehensive plan. Nevertheless, the comprehensive plan contains no goals or
objectives labeled as such. SCZC 14.402.000 requires consistency with the
comprehensive plan, but does not mention any "goals" or "objectives" of the plan. We
conclude that the Board of County Commissioners must have referred to the visions and
policies of the comprehensive plan in its finding 20. As we analyzed above, amendment
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No. 31941-5-111
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ll-CPA-05 thwarts comprehensive plan policy UL.2.16.
We question whether one inconsistency with the many policies of the
comprehensive plan is sufficient to declare the amendment as a whole disobedient to
SCZC section 14.402.040(1) but we need not resolve this question. Under clause 1 of the
code section, the zoning amendment must be consistent with the comprehensive plan and
not detrimental to the public welfare. The Spokane County Board of Commissioners
made no finding of an absence of a detriment. Strong evidence showed the zoning
change harmed the public, particularly neighbors, and benefited only Douglass. The
Spokane County Planning Commission found the zoning change to adversely impact the
public interest, and the Board of Commissioners registered no disagreement. Therefore,
amendment ll-CPA-05 does not satisfy SCZC section 14.402.040(1).
The Spokane County Board of Commissioners' finding 20 supports the conclusion
that the Board of Commissioners found a sufficient change in land use conditions to
warrant the zoning amendment. According to the Board of Commissioners. the subject
area had experienced a change of conditions by reason of development of duplex
dwelling units in proximity to the subject property thereby creating a mix of land use
types and densities. Douglass had argued that changed economic circumstances
warranted the amendment. The Board of Commissioners did not rely on any change in
the economy.
We find ambiguity in the language of and confusion between the GMHB's and
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No. 31941-5-111
Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd.
Board of Commissioners' respective interpretations ofSCZC 14.402.040(2). The
GMHB's ruling implied that the GMHB believed the change in land use conditions in the
area referred to in SCZC 14.402.040(2) is a change consistent with the zoning change
sought. In other words, Douglass or the Board of Commissioners, according to the
GMHB, needed to show that the new land uses in adjoining lands were other medium
density uses, not simply duplexes allowed in a low density zone. Although duplexes may
have been recently built on the adjoining land, duplexes were always permitted, and, in
fact, remain permitted on the Douglass property. SCZC 14.402.040(2) could also be read
to require the change in conditions to occur inside the proposed zoning change boundary,
rather than outside the rezone as concluded by the Board of Commissioners. Finally, the
section could be read to require the change in land use conditions are conditions in the
adjoining land such as uses not already allowed in the neighborhood. In other words, the
I
~
adjoining land also needed a zoning change.
We would defer to the Spokane County Board of Commissioners' reading of its
own code section, but we do not consider the resolution of the various readings of SCZC
14.402.040(2) helpful. Regardless, Spokane County, the GMHB, and this court must still
determine whether some change in land use conditions merits the rezone. We conclude
SCZC 14.402.040(2) does not refer to any change in conditions, otherwise there would be
no limit to the circumstances under which the code section permits a rezone. No matter
f
I!
how small or large the change, no matter how inconsistent or consistent to land uses in I
55 I
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the rezoned area the change in adjoining land use may be, the county could justify the
adopting of any change in zoning. For example, the section should not be read to include
the planting of a garden on adjoining land, which theoretically is a change in land use
conditions. We conclude a reasonable reading ofSCZC 14.402.040(2) requires us to
determine whether the change in land use conditions necessitates a rezone or the change
in conditions is close in nature to the rezone uses such that the rezone is a natural
extension of the change.
We find compelling the Neighborhood Association's argument that the building of
duplexes in the neighborhood should not warrant the change in zoning the Douglass
property from low density to medium density in neighboring property, because a
multifamily project on the Douglass land significantly increases the number of dwellings
per acre compared to duplexes. By way of illustration, under low density zoning,
Douglass' Redstone plat contemplated 38 lots, 26 for single family dwellings and 12 for
duplexes for a total of 50 dwelling units. Even if Douglass placed duplexes on each lot,
the total units would be 78. On the other hand, proposed medium density zoning would
allow 200 dwelling units, more than double the units in low density. The multifamily
medium density project would also generate a significant increase in need for parking.
I
The nearby duplexes therefore are not the type of land use change that generates a need
for a rezone on the Douglass land. Multifamily units on the Douglass land are not a
natural extension to the neighborhood duplexes. The rezone does not preserve the
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No. 31941-5-111
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character of the extended neighborhood.
Spokane County argues that economic circumstances impacting the area in 20 I 0
to 20 II rendered the property as zoned low density fiscally impractical. Nevertheless,
the Board of Commissioners did not justify the rezone on economic changes. The
County Board of Commissioners, rather than this appellate court, should be the body to
make the original finding of changes in economic conditions meriting a rezone.
Spokane County may argue on appeal that the change in land use conditions that
merits the rezone is the change that occurred by reason of the comprehensive plan map
amendment, by which the county rezoned the Douglass property from low density to
medium density use. Assuming the county forwards this argument, we reject it. The
rezone and the comprehensive plan amendment were essentially the same action by the
Board of Commissioners. One should not justify the other.
We conclude the GMHB gave Spokane County sufficient deference when it found
amendment II-CPA-05 noncompliant or violative of SCZC 14.402.040(2). Substantial
evidence failed to show a change in land use conditions meriting a rezone for the
Douglass land. The Spokane County Board of Commissioners failed to address whether
a zoning amendment furthers or harms the public welfare. The planning commission
found the rezone detrimental. The GMHB' s order was neither arbitrary nor capricious.
We reverse the trial court's ruling to the extent that the trial court reversed the GMHB's
ruling concerning SCZC 14.402.040(2).
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No. 31941-5-111
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We question whether the GMHB holds power to rule a comprehensive plan
amendment noncompliant with a county's zoning code. RCW 36.70A.300 grants
authority to the GMHB to review a plan's compliance only with the GMA, the Shoreline
Management Act, and the State Environmental Policy Act. RCW 36.70A.280 grants the
GMHB authority to address whether a development regulation complies with the GMA
and a zoning ordinance is a development regulation. This authority may not extend,
however, to determining whether a county complies with its internal code when adopting
a zoning change. Nevertheless, Spokane County has not argued that the GMHB may not
find its plan amendment noncompliant with the county code, or that the GMHB can use
such noncompliance to form the basis for a determination of invalidity of the plan
amendment.
Issue 7: Whether the GMHB committed error when it ruled Spokane County
amendment 11-CPA-05 invalid under the GMA?
Answer 7: We do not answer this question. Since we have both reversed and
affirmed several determinations of noncompliance made by the GMHB, we remand to the
GMHB to readdress whether amendment II-CPA-05 should be invalidated.
We have reversed the GMHB on two of the four grounds upon which it
invalidated amendment II-CPA-05. We must now determine what remedy or remedies
are appropriate. In particular, we must ask whether we should affirm the GMHB' s
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declaration of invalidity of the plan amendment now that there are only two
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noncompliance grounds: UL.2.16 and SCZC section 14.402.040.
A number of GMA sections address remedies available to the GMHB. Those
remedies include a two-step process. If the GMHB finds a county action to be
noncompliant with the GMA, the GMHB will first enter an order of remand for the
county to comply. Second, the GMHB will determine whether to invalidate the action
such that the action lacks force during the time of remand. Presumably, the purpose of
invalidity is to prevent owners and developers from gaining vested rights under the
county action, such as a rezone, during the remand.
RCW 36.70AJOO reads, in relevant part:
(1) The board shall issue a final order that shall be based exclusively
on whether or not a state agency, county, or city is in compliance with the
requirements of this chapter [the GMA], [the Shoreline Management Act,
or the State Environmental Policy Act].
(3) In the final order, the board shall either:
(a) Find that the state agency, county, or city is in compliance with
the requirements of this chapter.
(b) Find that the state agency, county, or city is not in compliance
with the requirements of this chapter ... in which case the board shall
remand the matter to the affected state agency, county, or city. The board
shall specify a reasonable time not in excess of one hundred eighty days, or
such longer period as determined by the board in cases of unusual scope or
complexity, within which the state agency, county, or city shall comply
with the requirements of this chapter. The board may require periodic
reports to the board on the progress the jurisdiction is making towards
compliance.
(4)(a) Unless the board makes a determination of invalidity under
RCW 36.70AJ02, a finding of noncompliance and an order of remand
shall not affect the validity of comprehensive plans and development
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Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd.
regulations during the period of remand.
RCW 36.70A.302(1) reads:
(I) The board may determine that part or all of a comprehensive plan
or development regulations are invalid if the board:
(a) Makes a finding of noncompliance and issues an order of remand
under RCW 36.70A.300;
(b) Includes in the final order a determination, supported by findings
of fact and conclusions oflaw, that the continued validity of part or parts of
the plan or regulation would substantially interfere with the fulfillment of
the goals of this chapter; and
(c) Specifies in the final order the particular part or parts of the plan
or regulation that are determined to be invalid, and the reasons for their
invalidity.
RCW 36.70A.302(1) refers to a "'comprehensive plan" and ""development
regulations." At issue in this appeal is a plan amendment. The GMHB declared the plan
amendment and not the underlying comprehensive plan to be invalid. The GMHB did
not invalidate the entire Spokane County Resolution 11-1191, which contained
comprehensive plan amendments, but only that portion of the resolution involving the
rezone of the Douglass land. The GMHB's singling out of amendment II-CPA-05 for
invalidity, rather than declaring the underlying comprehensive plan invalid or the entire
Resolution 11-1191, makes sense.
In this case, the GMHB invalidated amendment II-CPA-05 for substantially
interfering with GMA goals (1), (3), and (12), of the thirteen GMA goals found in RCW
36.70A.020. The relevant subsections reads:
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(1) Urban growth. Encourage development in urban areas where
adequate public facilities and services exist or can be provided in an
efficient manner.
(3) Transportation. Encourage efficient multi modal transportation
systems that are based on regional priorities and coordinated with county
and city comprehensive plans.
(12) Public facilities and services. Ensure that those public facilities
and services necessary to support development shall be adequate to serve
the development at the time the development is available for occupancy and
use without decreasing current service levels below locally established
minimum standards.
We agree with the GMHB that amendment 11-CPA-OS interferes with UL.2.16 and
SCZC section 14.402.040. This agreement supports a conclusion that amendment 11­
CPA-OS interferes with the identified goals of the GMA. Nonetheless, we disagree with
the GMHB that amendment Il-CPA-OS contradicts comprehensive plan polices UL.2.20,
and CF.3 .1. This disagreement undercuts the GMHB' s conclusion that amendment 11­
CPA-OS interferes with the stated GMA goals.
We wrote in Spokane County I:
In identifying 13 goals to guide local comprehensive planning, the
legislature itself cautioned that it was not listing goals in order of priority
and that its identification of the goals "shall be used exclusively for the
purpose of guiding the development of comprehensive plans and
development regulations." RCW 36.70A.020. Goals considered by local
governments in comprehensive planning may be mutually competitive at
times. For that reason, if a map amendment meaningfully advances other
comprehensive plan goals and policies, a finding by the growth board that it
fails to advance another-if it fails to advance, for example, a goal of
encouraging high density residential development on sites having good
access to a major arterial-that alone cannot be an invalidating
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inconsistency. The weighing of competing goals and policies is a
fundamental planning responsibility of the local government.
173 Wn. App. at 333 (citation omitted). Based on this passage in Spokane County I, we
would defer to any reasonable weighing of the goals and policies conducted by the
Spokane County Board of Commissioners. While the Board of Commissioners declared
amendment 11-CPA-05 consistent with the goals of the GMA, the Board of
Commissioners never provided any reasoning behind this declaration. More importantly,
the Board of Commissioners never recognized the rezone's inconsistency with
comprehensive plan amendment UL.2.16 or the violation of SCZC section 14.402.040.
Thus, the Board of Commissioners never weighed whether countervailing goals and
policies of the GMA trump the clash with GMA goals and polices resulting from
inconsistencies with comprehensive plan policy UL.2.16 or the violation of SCZC section
14.402.040.
RCW 34.05.574, a section of the Administrative Procedure Act, controls our
review of the GMHB's decision. This statute reads:
(1) In a review under RCW 34.05.570, the court may (a) affirm the
agency action or (b) order an agency to take action required by law, order
an agency to exercise discretion required by law, set aside agency action,
enjoin or stay the agency action, remand the matter for further proceedings,
or enter a declaratory judgment order.
(4) If the court sets aside or modifies agency action or remands the
matter to the agency for further proceedings, the court may make any
interlocutory order itfinds necessary to preserve the interests ofthe parties
and the public, pending further proceedings or agency action.
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(Emphasis added.)
Based on our authority under RCW 34.0S.S74, we remand this case to the GMHB
for proceedings consistent with this opinion. The GMHB should reweigh the extent of
the interference by amendment II-CPA-OS with the goals and policies of the GMA,
based on the amendment's noncompliance with only comprehensive plan policy UL.2.16
and SCZC section 14.402.040.
We order that the GMHB's declaration of invalidity remain in effect during the
additional review by the GMHB. Without this declaration of invalidity, Douglass might
gain vested rights to develop its property within the limited strictures of medium density
zoning. To preserve the interests of the parties, Douglass should not gain any vested
rights during the additional review.
CONCLUSION
We hold the GMHB possessed subject matter jurisdiction to review the concurrent
amendment and resolution. We affirm in part and reverse in part the superior court's
substantive ruling that reverses the GMHB and reinstates Spokane County
Comprehensive Plan amendment II-CPA-OS. We hold amendment II-CPA-OS
inconsistent with comprehensive plan policy UL.2.16 and SCZC section 14.402.040, but
consistent with comprehensive plan policy UL.2.20 and CF.3.l. We remand to the
GMHB for further proceedings consistent with this opinion.
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A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Lawrence-Berrey, J.
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