Schnitzer W., LLC v. City of Puyallup , 190 Wash. 2d 568 ( 2018 )

This opinion was filed for record
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SUPREME COURT CLERK
CMCF JUSTICE
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
SCHNITZER WEST, LLC, a Washington
limited liability company.
Petitioner,
No. 94005-3
V.
En Banc
CITY OF PUYALLUP, a Washington
municipal corporation. Filed MAY I 0 2Q1S
Respondent,
and
VIKING JV LLC,
Additional Party.
WIGGINS, J.—This case presents the question whether a city council's
restrictive zoning decision is judicially reviewable under chapter 36.70C RCW, the
Land Use Petition Act(LUPA), where the ordinance targeted a single property with a
sole owner and was not an amendment to the city's comprehensive plan. Because
such a land use decision is a site-specific rezone and is therefore reviewable under
LUPA, we reverse and remand to the Court of Appeals to proceed on the merits of the
Schnitzer West, LLC v. City of Puyallup, No. 94005-3
city's appeal of the superior court's decision^ and for other proceedings consistent with
this opinion.
Facts and Procedural History
In 2009, the city of Puyallup (City) created the "Shaw-East Pioneer Overlay Zone"
(SPG zone) as part of an amendment to the City's comprehensive plan. An overlay zone,
such as the SPG zone, establishes development criteria and standards to supplement
the base zoning standards that already exist. The Shaw Road and East Pioneer area is
considered to be a symbolic "gateway" to the City, and in creating the SPG zone, the City
intended to establish additional standards to encourage compatible development in that
area. When the SPG zone was adopted, the property at issue here was outside the
boundaries of the City.
In 2012, the City annexed the property at issue, which was zoned for industrial and
business park use. It also annexed several nearby commercially zoned properties. The
City did not extend the SPG zone into the area at the time.
In 2013, Schnitzer West LLC entered into a contract to purchase the property at
issue with plans for development. Schnitzer submitted a comprehensive plan amendment
and rezone request to the City to convert a portion of the property from a
business/industrial park zone to a light manufacturing/warehouse zone.
■■ When this case was before the Court of Appeals, the underlying ownership interest in the
property was transferred to Puyallup 5th Avenue LLC which subsequently transferred
ownership to Viking JV LLC. The City moved to dismiss on the ground that Schnitzer lacked
standing. Schnitzer claims to have a continuing contingent interest in the property. We deny
without prejudice the City's motion to dismiss. The City may raise again the issue of standing
on remand to the Court of Appeals.
Schnitzer West, LLC v. City of Puyallup, No. 94005-3
Over the verbal objection of at least one council member, the City approved
Schnitzer's comprehensive plan amendment and rezone request (Ordinance 3052)
by a vote of four to two, finding that the necessary criteria for redesignation and
rezoning was met. The City also found that if the comprehensive plan amendment
and rezone request were denied, industrial development on the property would not be
economically viable.
The new zoning designation allowed warehouse construction on the property
and brought the property into conformity with the zoning designations of adjacent
parcels.
Soon after Schnitzer received approval of its comprehensive plan amendment
and rezone request, two new city council members were elected, each replacing a
council member who had voted in favor of granting Schnitzer's comprehensive plan
amendment and rezone request. The city council immediately proposed and adopted
a 120-day emergency development moratorium on all development in the annexed
area, including the Schnitzer property. After the moratorium was proposed but before
it was adopted, Schnitzer filed an application to construct a 470,000 square foot
warehouse on the property.
Without consulting the rest of the council, four council members then drafted
and proposed Ordinance 3067. This new ordinance extended the SPG zone to the
Schnitzer property. The three council members who had been omitted from the
drafting process opposed Ordinance 3067 and the proceedings that surrounded it.
Schnitzer West, LLC v. City of Puyallup, No. 94005-3
Mayor John Knutsen voiced his dismay with the ordinance itself, saying, "This
is—I can't see this as anything but spot-zoning. If—if it's not, then I can't say where
spot-zoning exists." Clerk's Papers (CP) at 647. Council member Tom Swanson
shared the concern that the ordinance constituted spot-zoning, saying, "I would prefer
looking at doing it citywide, if that's something, which means it would go back to
planning commission at this time, versus attaching it to one particular three-parcel
zone and one overlay." CP at 643. He continued,"So that's—I mean, I don't like spot-
zoning. I don't like targeting one property owner for different zoning than everybody
else has. If we're going to do a Shaw Road overlay, you do it to the whole area." CP
at 644.
Council member Steve Vermillion was disconcerted with the way Ordinance
3067 had been drafted and proposed, stating that he was "not impressed with the fact
that four people moved this forward and three Council members were left in the dark
on it." CP at 642. He continued, suggesting that "the City manager and the City
attorney need to put a halt to this four-member control and bringing forward
documents without the consent of the whole Council." Id. Mayor Knutsen was similarly
concerned with the way the ordinance had been drafted and proposed: "I'm deeply
concerned if - if - if, indeed, four Council members instructed you to bring up an
ordinance, that's to be done here. It's to be done here and only here." CP at 647. He
continued, saying that he was "stunned" when he saw the ordinance and called
Vermillion and Swanson: "They were totally unaware of this. So if we're to be a four-
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member Council, then let's - you know, then let's not expect things to go as smoothly
as we would wish." Id.
The city council voted four to three to hold a special meeting at which council
members would vote on Ordinance 3067. CP at 656. Mayor Knutsen and council
members Vermillion and Swanson voted against the special meeting. Id.
At the special meeting, against the recommendation of the planning
commission, without public comment or hearing, and with only four out of seven
council members present,^ the city council approved Ordinance 3067.
Ordinance 3067 applied solely to the Schnitzer property. The city council did
not extend the ordinance to the surrounding properties to which the moratorium had
applied, despite similar characteristics, location, and zoning. Through Ordinance
2 After voting against holding a special meeting to vote on the passage of Ordinance 3067,
Knutsen, Vermillion, and Swanson sent letters explaining their absences from the special
meetings. These letters stated in part:
"As for the special meeting, after ten-plus years, 1 see no reason why
this item could not have been put on the next Council meeting's agenda so we
could all attend it. . . ."
"1 am dismayed that four Council members opted to not allow citizen
comments, which apparently has been implemented to eliminate dissent. ..."
"... I would request Council delay action to our next regularly scheduled
meeting, as i feei this issue rising to a levei of importance which should be
openly discussed by aii members with aii viewpoints being expressed."
"1 have heard no reason explaining why this action cannot be deiayed
until next Tuesday's regular Council meeting, when more and hopefuliy ail ~
including myself - members are able to attend."
CP at 659.
Schnitzer West, LLC v. City of Puyallup, No. 94005-3
3067, the City Imposed major restrictions on the Schnitzer property: the Ordinance
created and applied a new overlay zone for "limited manufacturing"(ML-SPO) uses
to the Schnitzer property and added a building size limitation of 125,000 square feet.
It also imposed regulations pertaining to outdoor storage uses; standards governing
the design, size, setback, and orientation of buildings; requirements dictating
landscaping, open space usage, and pedestrian infrastructure; provisions
constraining signage; and rules for storm water management.
Schnitzer filed a land use petition in Pierce County, challenging the ordinance
as an unlawful site-specific rezone.^ The City filed a motion to dismiss. The trial court
ruled in favor of Schnitzer, denied the motion to dismiss, and held Ordinance 3067
invalid. On appeal, a majority of the Court of Appeals reversed the trial court and
dismissed the action, holding that Ordinance 3067 was not a "land use decision"
reviewable by the superior court under LUPA. Chief Judge Bjorgen penned a
persuasive dissent, concluding that Ordinance 3067 was reviewable under LUPA.
Schnitzer W., LLC v. City ofPuyallup, 196 Wash. App. 434,444-50, 382 P.3d 744(2016)
(Bjorgen, C.J., dissenting). Chief Judge Bjorgen analyzed the content, context,
purpose, and effect of Ordinance 3067 and determined that it "was not an adoption of
legislative or area-wide policy, but rather a rezone of a specific, relatively small
property in the context of a development proposal on that property," id. at 447, and
that "[wjhether a rezone is proposed by a property owner, a neighbor, or the local
3 Schnitzer also filed a petition with the Growth Management Hearings Board, which was
stayed pending resolution of our review.
Schnitzer West, LLC v. City of Puyallup, No. 94005-3
government has little to do with the[]distinctions[between legislative and site-specific
actions]," id. at 449-50.
Schnitzer appealed the dismissal of its land use petition, and we granted
review.
Standard of Review
Whether a city council's decision regarding the use of land is reviewable by the
superior court under LUPA is a question of law that this court reviews de novo. See
Durland v. San Juan County, 182 Wash. 2d 55, 64, 340 P.3d 191 (2014).
Analysis
Ordinance 3067 was approved by the Puyallup City Council against the
recommendation of the Planning Commission, without public comment or hearing,
and with only four council members present. It applies solely to the Schnitzer property
and imposes major restrictions. The City argues that Ordinance 3067 is not reviewable
under LUPA because it was proposed by the city council and was not a ruling in
response to an application by a third party. The City also argues that Ordinance 3067
is a legislative action expressly excluded from review under LUPA. We disagree.
I. Ordinance 3067 is a site-specific rezone and can be challenged only in superior
court under LUPA
The City argues that regardless of its content, the ordinance cannot be subject
to LUPA review because it was proposed by the city council and was not an
application by an outside party. We disagree. Ordinance 3067 is a site-specific rezone
that must be challenged in superior court under LUPA.
Schnitzer West, LLC v. City of Puyallup, No. 94005-3
A. LUPA grants superior courts exclusive jurisdiction to review chaiienges
to site-specific rezones
There are two primary mechanisms by which to challenge local jurisdictions'
land use decisions: review by the Growth Management Hearing Board(GMHB)under
the Growth Management Act (GMA), chapter 36.70A RCW, or review by a superior
court under LUPA. See Woods v. Kittitas County, 162 Wash. 2d 597, 608-10, 174 P.3d
25 (2007)(explaining the statutory framework for review of local jurisidictions' land
use decisions). And, "[i]f a GMHB does not have jurisdiction to consider a petition, it
must be filed in superior court under LUPA." Wenatchee Sportsmen Ass'n v. Cheian
County, 141 Wash. 2d 169, 176, 4 P.3d 123(2000).
GMHBs have limited jurisdiction and may decide only challenges to or
amendments of comprehensive plans or development regulations. Woods, 162 Wash. 2d
at 609. GMHBs do not have jurisdiction over "challenges to site-specific land use
decisions because site-specific land use decisions do not qualify as comprehensive
plans or development regulations." id. at 610. LUPA, however, grants superior courts
exclusive jurisdiction to review land use decisions unless the decision is made by a
body outside a local jurisdiction or is subject to review by a quasi-judicial body such
as the GMHB. RCW 36.700.030; Woods, 162 Wash. 2d at 610 ("LUPA grants the
superior court exclusive jurisdiction to review a local jurisdiction's land use decisions,
with the exception of decisions subject to review by bodies such as the GMHBs."
(emphasis omitted)).
Accordingly, a challenge to a site-specific land use decision can be brought
only under LUPA. Woods, 162 Wash. 2d at 610 ("GMHBs do not have jurisdiction to
Schnitzer West, LLC v. City of Puyallup, No. 94005-3
decide challenges to site-specific land use decisions because site-specific land use
decisions do not qualify as comprehensive plans or development regulations. A
challenge to a site-specific land use decision should be brought in a LUPA petition at
superior court." (citation omitted)). LUPA defines a "land use decision" as a "final
determination . . . on . . . [a]n application for a project permit or other governmental
approval." RCW 36.70C.020(2)(a). And, "[a] site-specific rezone occurs 'when there
are specific parties requesting a classification change for a specific tract.'" Woods,
162 Wash. 2d at 611 n.7 (quoting Cathcart-Maltby-Clean/iew Cmty. Council v.
Snohomish County, 96 Wash. 2d 201, 212, 634 P.2d 853(1981)).
A site-specific rezone requires three factors: (1) a specific tract of land, (2) a
request for a classification change, and (3) a specific party making the request. Id.
For example, in Fell v. Eastern Washington Growth Management Hearings
Board, we held that a recreational overlay district was a site-specific rezone. 172
Wash. 2d 367, 380, 259 P.3d 227 (2011). In Fell, the Washington State Parks and
Recreation Commission applied for a recreational overlay district permit from Douglas
County to develop a trail along the shore of the Columbia River. Id. at 373. The overlay
permit dealt with a single tract of land. Id. at 380. This court determined that the
permitting decision was a site-specific rezone. Id. There, the Parks Commission was
the specific party, the recreational overlay was a classification change, and the parcel
of land was a specific tract.
To determine whether Ordinance 3067 is reviewable under LUPA, we must
determine whether Ordinance 3067 applies to a specific tract of land, whether it is a
Schnitzer West, LLC v. City of Puyallup, No. 94005-3
classification change, and whether it was requested by a specific party. Because
Ordinance 3067 is a classification change of a specific tract of land requested by a
specific party, we hold that it is a site-specific rezone.
B. The Schnitzer property is a specific tract ofland
First, Ordinance 3067 applies not area-wide, but to a specific tract of land: the
Schnitzer property. Puyallup Ordinance 3067(May 28, 2014); CP at 17-23. It carves
out the Schnitzer property from adjacent parcels, despite the council's initial stated
intent that the new zoning overlay would apply to all newly annexed properties. See
CP at 124-29. Ordinance 3067 applies only to the Schnitzer property, leaving all
surrounding annexed properties unaffected, despite their similar characteristics,
location, and zoning. Puyallup Ordinance 3067; CP at 19-21, 23.
C. Ordinance 3067 Is a classification change
Second, Ordinance 3067 is a classification change. Ordinance 3067 applied a
new zoning overlay to the Schnitzer property. The overlay changes the Schnitzer
property's zoning classification from limited manufacturing to ML-SPO; imposes a
building size limitation: restricts the design, size, setback, and orientation of buildings;
imposes landscaping, open space, and pedestrian infrastructure requirements; and
establishes regulations pertaining to outdoor storage uses, storm water management,
and signage. See Fell, 172 Wash. 2d 367 (application of a recreational overlay district
was a classification change of the tract to which it applied).
D. The city council Is a specific party
Finally, Ordinance 3067 was requested by a specific party. The City argues that
a zoning decision cannot be a site-specific rezone unless it was initiated by a third-
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Schnitzer West, LLC v. City of Puyallup, No. 94005-3
party application, and that the government "does not apply for a permit to itself, nor
does it apply for approval of its own action." Schnitzer, 196 Wash. App. at 442.
Accordingly, the City argues that Ordinance 3067 was not a site-specific rezone
because the ordinance was proposed by the City. We disagree: a government can
approve its own actions, can apply for or initiate a request for its own approval, and
can be a specific party for the purpose of a site-specific rezone classification.
First, the government is regularly characterized as approving its own actions.
The Washington State Constitution contemplates government approval of its own
actions by categorizing the governor's and the legislature's actions as "approval" prior
to an act becoming law.'^ Governmental approval for its own actions is also
contemplated in the United States Constitution, which categorizes both the president's
actions and Congress's actions as "approv[al]." U.S. Const, art. I, § 7, cl. 2. Statutes
also characterize the government as approving its own actions. For example, RCW
^ Every act which shall have passed the legislature shall be, before it becomes
a law, presented to the governor. If he approves, he shall sign it; but if not, he
shall return it, with his objections, to that house in which it shall have
originated . . . . If, after such reconsideration, two-thirds of the members
present shall agree to pass the bill it shall be sent, together with the objections,
to the other house, by which it shall likewise be reconsidered, and if approved
by two-thirds of the members present. It shall become a law.
Wash. Const, art. Ill, § 12(emphasis added).
This court has reinforced this characterization: "In approving or disapproving legislation, the
Governor acts in a legislative capacity and as part of the legislative branch of government."
Hallin v. Trent, 94 Wash. 2d 671, 677, 619 P.2d 357(1980)(emphasis added).
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Schnitzer West, LLC v. City ofPuyallup, No. 94005-3
35A.12.130 requires every ordinance passed by the city council to be presented to
and approved by the mayor.®
And here, even the Puyallup City Council expressly classified its actions as
"approval" by articulating that Ordinance 3067 was "[p]assed and approved by City
Council of the City of Puyallup at an open public meeting on the 28th day of May.
2014." Puyallup Ordinance 3067(May 28, 2014)(emphasis added); CP at 21-22.
Second, the government can be a specific party for the purpose of a site-
specific rezone classification. See, e.g., Feil, 172 Wn.2d at 380(a rezone initiated by
the Washington State Parks and Recreation Commission was a site-specific rezone
exclusively reviewable under LUPA); of. Spokane County v. E. Wash. Growth Mgmt.
Hr'gs Bd., 176 Wash. App. 555, 571-72, 309 P.3d 673 (2013)(The county initiated a
rezone of an individual property and argued that the rezone was site-specific, and the
Court of Appeals articulated that "a site-specific rezone is a project permit approval
under LUPA if it is authorized by a then-existing comprehensive plan.").
The legislature enacted LUPA to establish "uniform, expedited appeal
procedures" for "judicial review of land use decisions made by local jurisdictions" in
order to provide "consistent, predictable, and timely judicial review." RCW
36.70C.010. The standards governing relief under LUPA primarily focus on ensuring
® "Every ordinance which passes the council in order to become valid must be presented to
the mayor; if he or she approves it, he or she shall sign it, but if not, he or she shall return it
with his or her written objections to the council . . . ." RCW 35A.12.130 (emphasis added).
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Schnitzer West, LLC v. City of Puyallup, No. 94005-3
that a party impacted by a land use decision was treated fairly by the decision-maker,
in process and in substance. ®
Limiting challenges exclusively to land use decisions proposed by
nongovernmental parties would result in a framework under which the decision-
maker's duties of fairness to an interested party change based upon the origin of the
initial request. This would contravene LUPA's objective of providing "uniform, . . .
consistent, predictable, and timely judicial review" and would effectively grant city
councils the opportunity to make decisions with impunity, unreviewable by the superior
court, if the request was self-initiated.
Furthermore, here the Puyallup Municipal Code (PMC) itself names the city
council as a specific party that has the authority to initiate a site-specific rezone
application. See Puyallup Municipal Code 20.11.005. Chapter 20.11 of the PMC
"establishes the rules and procedures for handling and management of project permit
applications and records pertaining to matters under this code." Puyallup Municipal
Code 20.11.001. The next section lists the parties that may initiate a rezone
application, explicitly including the city council;
20.11.005 General rules for processing applications.
Applications to initiate consideration of matters under this code may be.
made by persons or agencies, including owners, bona fide agents, the
commission and the councii.
® Relief is granted under LUPA when one of six standards has been met: (1) the decision-
maker engaged in unlawful procedure or failure to follow a prescribed process; (2) the
decision was an erroneous interpretation of law; (3) the decision was not supported by
substantial evidence; (4) the decision was an erroneous application of the law to the facts;
(5) the decision was outside the authority or jurisdiction of the decision-maker; or (6) the
decision violates the constitutional rights of the party seeking relief. RCW 36.70C.130.
13 .
Schnitzer West, LLC v. City of Puyallup, No. 94005-3
PUYALLUP Municipal Code 20.11.005(emphasis added). Here, the City can be and is
the specific party that sought to apply an overlay zone and Its major restrictions to the
Schnitzer property.
Accordingly, Ordinance 3067 is a site-specific rezone. The zoning overlay is a
classification change, the Schnitzer property is a specific tract, and the city council is
a specific party. Because Ordinance 3067 is a site-specific rezone, it is subject to
exclusive review under LUPA.
II. Ordinance 3067 is not a legislative action
LUPA expressly excludes from review "applications for legislative approvals
such as area-wide rezones and annexations." ROW 36.70C.020(2)(a). Ordinance
3067 is a site-specific rezone and not a legislative approval; therefore. Ordinance
3067 is not excluded from LUPA review.
The City argues that Ordinance 3067 is a legislative action excluded from
review under LUPA. In arguing that Ordinance 3067 is legislative, the City relies on
the Paynes'^ factors. However, the Raynes factors are inapposite when determining
whether an action qualifies as "legislative" under LUPA.
In Raynes, we created a four-factor test® for determining whether an action is
legislative for the purpose of deciding whether a statutory writ of certiorari is warranted
^ Raynes v. City of Leavenworth, 118 Wash. 2d 237, 244, 821 P.2d 1204 (1992).
® The four factors are (1) whether the action results from a duty the court could have been
charged with, (2) whether the courts have historically performed such duties, (3) whether
existing law is being applied to a set of facts or if a new general law of prospective application
is being applied, and (4) whether the action resembles court duties as opposed to legislative
or administrative duties, id.
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under chapter 7.16 RCW. Raynes, 118 Wash. 2d at 244 ("A 4-part test has been
developed to determine when a given action is quasi-judicial or legislative in relation
to the writ."). However, LUPA replaced the writ as the exclusive means for judicial
review of land use decisions. We have explicitly declined to apply the requirements
for a statutory writ to review under LUPA;
The common law writ of certiorari has been codified in chapter
7.16 RCW as the writ of review, which generally grants review of only
quasi-judicial determinations. . . . However, LUPA makes no reference
to chapter 7.16 RCW. Reading LUPA together with chapter 7.16 RCW
to ascertain legislative intent is not consistent with rules of statutory
interpretation. . . .
Construing the express language of RCW 36.70C.030(1) ("[tjhis
chapter replaces the writ of certiorari for appeal of land use decisions
and shall be the exclusive means of judicial review of land use
decisions")(emphasis added) according to its obvious meaning without
regard to previous common law or, in this case, chapter 7.16 RCW, all
land use decisions are subject to LUPA unless specifically excluded
under RCW 36.70C.030.
Chelan County v. Nykreim, 146 Wash. 2d 904, 930-31, 52 P.3d 1 (2002)(third alteration
in original) (footnotes omitted). As a result, because Raynes examined only the
procedures for a statutory writ, we cannot rely on its test when determining whether
Ordinance 3067 is a legislative action under LUPA.
Instead, to determine whether Ordinance 3067 is a legislative action excluded
by LUPA, we turn to statutory interpretation. In doing so, we hold that Ordinance 3067
is not excluded from LUPA review.
LUPA does not exclude all legislative action; rather, it excludes "applications
for legislative approvals such as area-wide rezones and annexations." RCW
36.70C.020(2)(a). However, the inclusion of "such as" in this section indicates the list
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Schnitzer West, LLC v. City of Puyallup, No. 94005-3
of excluded "legislative approvals" is illustrative, not exhaustive. Of. In re
Postsentence Review of Leach, 161 Wash. 2d 180, 186, 163 P.3d 782(2007)(because
the statute lacked a provision for "similar" or "like" offenses, "the legislature plainly
meant for these enumerated crimes to be the exclusive and complete list").
Nonetheless, the plain ianguage of RCW 36.70C.020(2)(a) indicates that the
illustrative examples were intended to limit the scope of exclusions. Of. State v.
Larson, 184 Wash. 2d 843, 849, 365 P.3d 740 (2015)(the illustrative examples in RCW
9A.56.360, which state in part, "The person was, at the time of the theft, in possession
of an item, article, implement, or device designed to overcome security systems
including, but not limited to, lined bags or tag removers," were intended to limit the
scope of the statute).
Principles of statutory interpretation suggest that "general terms, when used in
conjunction with specific terms in a statute, should be deemed only to incorporate
those things similar in nature or 'comparabie to' the specific terms." Simpson Inv. Co.
V. Dep't of Revenue, 141 Wash. 2d 139, 151, 3 P.3d 741 (2000)(quoting John H. Sellen
Constr. Co. v. Dep't of Revenue, 87 Wash. 2d 878, 883-84, 558 P.2d 1342 (1976)).
Therefore, the scope of exclusions under LUPA is limited to actions similar in nature
to area-wide rezones and annexations.
Further, the modification of "rezone" by "area-wide" is exclusive, indicating that
rezones are only part of the illustrative list when they are area-wide, not when they
are site-specific. See In re Det. of Williams, 147 Wash. 2d 476, 491, 55 P.3d 597(2002)
("Under expressio unius est exclusio alterius, a canon of statutory construction, to
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Schnitzer West, LLC v. City of Puyallup, No. 94005-3
express one thing in a statute implies the exclusion of the other. Omissions are
deemed to be exclusions." (citation omitted)).
Here, Ordinance 3067 is not an area-wide rezone or annexation, nor is it similar
in nature to either. Rather, Ordinance 3067 is a site-specific rezone, confined to a
specific tract and impacting a sole owner. See supra Section I. Thus, Ordinance 3067
does not fall within the category of "legislative approvals such as area-wide rezones
and annexations." As a result. Ordinance 3067 is not excluded from LUPA review.
Conclusion
We hold that site-specific rezones—regardless of the initiating party—are
reviewable under LUPA. Because Ordinance 3067 is a site-specific rezone, the
Ordinance is subject to review in the superior court under LUPA. We reverse the Court
of Appeals and hold that the superior court correctly denied the City's motion to
dismiss. We remand to the Court of Appeals to proceed on the merits of the City's
appeal of the superior court's decision and for other proceedings consistent with this
opinion.
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Schnitzer West, LLC v. City of Puyallup, No. 94005-3
WE CONCUR:
a
'A
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Schnitzer West, LLC v. City ofPuyallup
No.94005-3
Gonzalez, J.(concurring)—I agree with the lead opinion, but write
separately to emphasize that Land Use Petition Act(LUPA)(ch. 36.70C RCW)
review in this context is limited. In order to preserve the chance to develop its
property, Schnitzer West LLC submitted a short plat application to the city of
Puyallup on January 7, 2014. That short plat application vested the project to the
city's land use regulations at the time. RCW 58.17.033; RCW 19.27.095. The
legislature intended property owners to have recourse when "municipalities ...
abus[e] their discretion with respect to land use and zoning rules." Snohomish
County V. Pollution Control Hr'gs Bd., 187 Wash. 2d 346, 362, 386 P.3d 1064
(2016). Consequently, Schnitzer may seek redress under LUPA because the city
passed a site-specific ordinance targeting Schnitzer's existing proposal. See, e.g..
Clerk's Papers at 463(a council member described the ordinance as "personal
retribution against Schnitzer"); Resp't's Opening Br., Schnitzer West, LLC v. City
ofPuyallup, No. 47900-1-II, at 8 & n.2(Wash. Ct. App. Dec 7., 2015)("the
Project... will immediately become a 'nonconforming' structure on the site,
because it will not comply with the Ordinance"). On narrower grounds, 1 concur.
Schnitzer West, LLC v. City ofPuyallup, No. 94005-3 (Gonzalez, J., concurring)
Schnitzer West, LLC v. City ofPuyallup
No. 94005-3
JOHNSON,J.(dissenting)—The lead opinion ignores the statutory language
in concluding that the city ofPuyallup (City) qualifies as "an applicant" for a
"project permit" for purposes ofjudicial review under the Land Use Petition Act
(LUPA), chapter 36.70C ROW. The statutory language does not support the lead
opinion's conclusion, and the Court of Appeals should be affirmed.
The statutory language is fairly clear that a "land use decision" is a final
determination of"[a]n application for a project permit or other governmental
approval." RCW 36.70C.020(2)(a). "Project permit" is then defined as a "permit or
license requiredfrom a local government for a project action." RCW
36.70B.020(4)(emphasis added). The Court of Appeals correctly read these two
statutes together to conclude that a land use decision reviewable under LUPA
requires an application that the government responds to and then acts on.
Schnitzer West, LLC v. City ofPuyallup, No. 94005-3
(Johnson, J., dissenting)
The lead opinion's reasoning that the City can qualify as an applicant for a
project permit makes no logical or legal sense. Here, the City was not approving or
ruling on an application. The Court of Appeals correctly noted that Schnitzer does
not point to any "application" by the City to initiate expansion ofthe SPO(Shaw-
East Pioneer Overlay)zone. Schnitzer W., LLC v. City ofPuyallup, 196 Wash. App.
434, 444, 382 P.3d 744(2016), review granted, 187 Wash. 2d 1025 (2017). Under the
statute, a city cannot be an applicant; a government agency does not apply to
permit itself, nor does it apply for approval of its own actions.
The lead opinion and concurrence seem most offended by the motivations of
city council members and make much of the argument that the City deliberately
"targeted" the Schnitzer property, but this should make no difference under the
statutory provisions.' Our cases recognize the authority of cities and counties to
enact ordinances that may result in a nonconforming use designation for a
particular property. See Ackerley Comma 'ns, Inc. v. City ofSeattle, 92 Wash. 2d 905,
602 P.2d 1177(1979)(upholding an ordinance requiring the removal of outdoor
'Additionally, it is hard to imagine how the Ordinance "targets" Schnitzer when the City
has conceded the Ordinance does not apply to Schnitzer.
Schnitzer West, LLC v. City ofPuyallup, No. 94005-3
(Johnson, J., dissenting)
advertising signs after a three to seven year amortization period); Horan v. City of
Federal Way, 110 Wash. App. 204, 39 P.3d 366(2002)(recognizing the city's
authority to enact an ordinance that resulted in a nonconforming use designation
and the amortization ofthat use, but not until compensation procedures were
followed); Asia v. City ofSeattle, 4 Wash. App. 530, 482 P.2d 810(1971)(upholding
an ordinance that authorized the city to discontinue the defendant's advertising
sign that was deemed nonconforming).
Even though Schnitzer's claim is not reviewable under LUPA, as amicus
Washington State Association of Municipal Attorneys accurately recognizes, a
property owner has multiple ways to challenge a city's legislative decision if he or
she feels targeted. Schnitzer has filed a petition with the Growth Management
Hearings Board(GMHB), which is stayed pending our review of this case, and is
free to pursue that avenue of relief. In addition to review by the GMHB,a property
owner can seek redress through a declaratory judgment or a writ process. The
Court of Appeals' conclusion entails a straightforward analysis ofthe statutory
Schnitzer West, LLC v. City ofPuyallup, No. 94005-3
(Johnson, J., dissenting)
language and should be affirmed.
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