Kittitas Cnty. v. Kittitas Cnty. Conservation

176 Wash.App. 38

308 P.3d 745

KITTITAS COUNTY, a political subdivision of the State of Washington, Appellant,

v.KITTITAS COUNTY CONSERVATION and Futurewise, and Ellison Thorp Property, LCC and Ellison Thorp Property II, LCC, and Eastern Washington Growth Management Hearings Board, Respondents.

No. 30728–0–III.

Court of Appeals of Washington, Division 3.

Aug. 13, 2013.

Tim Trohimovich, Futurewise, Seattle, WA, for Appellant.

Neil Alan Caulkins, Kittitas County Prosecutor, Jeffrey David Slothower, Attorney at Law, Ellensburg, WA, for Respondents.

PUBLISHED OPINION

BROWN, J.

[176 Wash.App. 44]¶ 1 Development opponents Kittitas County Conservation Coalition and Futurewise (collectively Futurewise) ask us to reinstate a decision the Eastern Washington Growth Management Hearings Board entered against developmentproponents Kittitas County (the County), Ellison Thorp Property LLC, and Ellison Thorp Property II LLC (collectively Ellison), but which the superior court dissolved. The hearings board invalidated the County's planning actions in amendments 10–12 and 10–13 after finding and concluding the County did not, in adopting them, comply with the Growth Management Act (GMA), chapter 36.70A RCW, or the State Environmental Policy Act (SEPA), chapter 43.21C RCW. The superior court held, and the County and Ellison now contend, the hearings board lacked subject matter jurisdiction to review the County's rezone because it is a site-specific land use decision within the superior court's exclusive jurisdiction under the Land Use Petition Act (LUPA), chapter 36.70C RCW. Additionally, the County and Ellison contend the hearings board's decision lacks substantial evidence, erroneously interprets and applies the law, and is arbitrary and capricious. We reject their contentions and reverse.

FACTS

¶ 2 In June 2010, Ellison proposed two amendments to the County's comprehensive plan map and zoning map “for the purpose of developing the Thorp Travel Center consisting of a truck stop, restaurant and hotel and RV park.” Administrative Record (AR) at 13, 14. The first proposal, amendment 10–12, expanded a Type 3 Limited Area of More Intensive Rural Development (LAMIRD) from 12 to 30.5 acres within the property's Agriculture Study Overlay. The second proposal, amendment 10–13, changed the property's comprehensive plan category from Rural to Commercial and changed its zone designation from Agriculture 20 to Commercial Highway.

¶ 3 The proposed development would cover over 29 acres, comprising a 4,000 square foot fuel station, a 10,000 square foot retail store, a 5,000 square foot retail store, a 6,000 square foot restaurant, a 24,000 square foot hotel with 50 units, a 5,000 square foot recreational vehicle park with 45 spaces, and parking lots with spaces for hundreds of cars and trucks. These uses would operate 24 hours a day, employ up to 140 people, and generate $10.9 million annually. The proposed development would require new roads and a six-acre septic or sewer reserve area. Surrounding uses are mainly agricultural.

¶ 4 The proposed development would be located next to Interstate Highway 90. The existing LAMIRD encompasses a fuel station and retail store located across the highway from the proposed development, and an energy utility and office building located next to the proposed development. A truck stop once stood on a small portion of the existing LAMIRD located next to the proposed development.

¶ 5 Apparently, Ellison submitted a SEPA environmental checklist on June 10, 2010 but the County made no corresponding threshold determination. Then, the County issued a SEPA environmental checklist on October 15, 2010 and a corresponding determination of nonsignificance on November 2, 2010. The determination of nonsignificance stated, “There is no agency administrative appeal ( [Kittitas County Code (KCC) ] 15.04.210 and 15B.05.010).” AR at 465. Thus, Futurewise did not appeal the determination of nonsignificance to any county-level official.

¶ 6 On December 21, 2010, the Board of County Commissioners enacted Ordinance 2010–14, adopting Ellison's proposals along with five others during the annual comprehensive plan amendment cycle. The hearings board invalidated the County's planning actions upon Futurewise's appeal. The superior court dissolved the hearings board's decision. The County and Ellison appealed.

REVIEW STANDARD

¶ 7 We review the hearings board decision under the Administrative Procedure Act (APA), chapter 34.05 RCW. Feil v. E. Wash. Growth Mgmt. Hr'gs Bd., 172 Wash.2d 367, 376, 259 P.3d 227 (2011); seeRCW 34.05.510. We apply APA standards directly to the hearings board record, performing the same function as the superior court. City of Redmond v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 136 Wash.2d 38, 45, 959 P.2d 1091 (1998); seeRCW 34.05.526. The party challenging the hearings board decision (here the County and Ellison) bears the burden of proving it is invalid. RCW 34.05.570(1)(a). The decision is invalid if it suffers from at least one of nine enumerated infirmities. RCW 34.05.570(3). We must grant relief from the decision if, as relevant here:

(b) The order is outside the statutory authority or jurisdiction of the agency conferred by any provision of law;

....

(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 ...; [or]

(i) The order is arbitrary or capricious.

RCW 34.05.570(3)(b), (d)-(e), (i).

¶ 8 Our review is de novo under RCW 34.05.570(3)(b) or (d), determining whether the decision contains a legal error. Kittitas County v. E. Wash. Growth Mgmt. Hr'gs Bd., 172 Wash.2d 144, 155, 256 P.3d 1193 (2011). We accord the hearings board's interpretation of the GMA “substantial weight.” King County v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 142 Wash.2d 543, 553, 14 P.3d 133 (2000). But the interpretation does not bind us. City of Redmond, 136 Wash.2d at 46, 959 P.2d 1091.

¶ 9 We apply the substantial evidence review standard to challenges under RCW 34.05.570(3)(e), determining whether there exists “ ‘a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the order.’ ” City of Redmond, 136 Wash.2d at 46, 959 P.2d 1091 (quoting Callecod v. Wash. State Patrol, 84 Wash.App. 663, 673, 929 P.2d 510 (1997)). We view the evidence “in the light most favorable to ... ‘the party who prevailed in the highest forum that exercised fact-finding authority.’ ” City of Univ. Place v. McGuire, 144 Wash.2d 640, 652, 30 P.3d 453 (2001) (quoting State ex rel. Lige & Wm. B. Dickson Co. v. County of Pierce, 65 Wash.App. 614, 618, 829 P.2d 217 (1992)). Doing so “ ‘necessarily entails accept[ing] the factfinder's views regarding the credibility of witnesses and the weight to be given reasonable but competing inferences.’ ” Id. (quoting Lige & Wm. B. Dickson Co., 65 Wash.App. at 618, 829 P.2d 217).

¶ 10 We apply the arbitrary and capricious review standard to challenges under RCW 34.05.570(3)(i), determining whether the decision constitutes “ ‘willful and unreasoning action, taken without regard to or consideration of the facts and circumstances surrounding the action.’ ” City of Redmond, 136 Wash.2d at 46–47, 959 P.2d 1091 (quoting Kendall v. Douglas, Grant, Lincoln & Okanogan Counties Pub. Hosp. Dist. No. 6, 118 Wash.2d 1, 14, 820 P.2d 497 (1991)). “ ‘Where there is room for two opinions, an action taken after due consideration is not arbitrary and capricious even though a reviewing court may believe it to be erroneous.’ ” Id. at 47, 959 P.2d 1091 (quoting Kendall, 118 Wash.2d at 14, 820 P.2d 497).

ANALYSIS

A. Jurisdiction

¶ 11 The issue is whether the hearings board had subject matter jurisdiction to review amendment 10–13's rezone under the GMA. The County and Ellison contend the rezone is within the superior court's exclusive jurisdiction under LUPA. We review the hearings board's assertion of jurisdiction de novo. RCW 34.05.570(3)(b); Kittitas County, 172 Wash.2d at 155, 256 P.3d 1193.

¶ 12 Certain local governments like Kittitas County must “adopt a comprehensive plan under [the GMA] and development regulations that are consistent with and implement the comprehensive plan.” RCW 36.70A.040(3)(d), (4)(d), (5)(d). If a county later amends its comprehensive plan, it must concurrently adopt or amend consistent implementing development regulations. WAC 365–196–805(1). A comprehensive plan is a county's “generalized coordinated land use policy statement.” RCW 36.70A.030(4). Development regulations are a county's “controls placed on development or land use activities ..., including, ... zoning ordinances.” RCW 36.70A.030(7). But a “decision to approve a project permit application” is not a development regulation, even if it appears in a legislative ordinance or resolution. Id. Instead, a project permit approval is a “land use decision” under LUPA. RCW 36.70C.020(2)(a). Project permit applications include proposals for “site-specific rezones authorized by a comprehensive plan” but exclude proposals for “the adoption or amendment of a comprehensive plan ... or development regulations.” RCW 36.70B.020(4).

¶ 13 The hearings board has exclusive jurisdiction to review petitions alleging a county did not comply with the GMA in adopting or amending its comprehensive plan or development regulations.¹RCW 36.70A.280(1)(a); former RCW 36.70A.290(2) (1995); Somers v. Snohomish County, 105 Wash.App. 937, 945, 21 P.3d 1165 (2001). Additionally, the hearings board may review petitions alleging a county did not comply with SEPA in adopting or amending its comprehensive plan or development regulations. RCW 36.70A.280(1)(a); former RCW 36.70A.290(2). But the hearings board “do[es] not have jurisdiction to decide challenges to site-specific land use decisions because [those] decisions do not qualify as comprehensive plans or development regulations.” Woods v. Kittitas County, 162 Wash.2d 597,...