Opinion
No. 60896-7-I.
June 23, 2008.
Appeal from a judgment of the Superior Court for Skagit County, No. 07-2-00649-7, John M. Meyer, J., entered October 23, 2007.
Affirmed in part and reversed in part by unpublished opinion per Dwyer, A.C.J., concurred in by Appelwick and Leach, JJ.
This appeal arises from the denial of a rezone request. The central issue is whether in 1998 the subject parcel, currently zoned as Rural, should have instead been designated as Rural Village Lands, which would allow for more intensified development, when Island County adopted the Island County Comprehensive Plan (ICCP) and the development regulations to implement that plan, chapter 17.03 of the Island County Code (ICC).
The Board of Island County Commissioners (Board) denied the rezone application of the parcel's owner, Lenz Enterprises, Inc. (Lenz), based on the Board's determination that the parcel did not contain necessary existing development on December 1, 1998, the effective date of the ICCP. Lenz contends that the Board should have considered only whether the parcel contained the necessary existing development on July 1, 1990, the effective date of the Growth Management Act (GMA), chapter 36.70A RCW. Lenz also argues that regardless of the resolution of this question, the parcel meets the requirements for Rural Village designation.
On October 23, 2007, the Skagit County Superior Court, without deciding any other issue, determined that the Board's action was inconsistent with the GMA and ordered the Board to reconsider its decision, using the date of July 1, 1990, in making its findings as to the existence of necessary development.
At the time of the superior court's decision, it was "unclear whether a site-specific rezone is statutorily required to comply with the GMA." Woods v. Kittitas County, 162 Wn.2d 597, 612, 174 P.3d 25 (2007) (noting that the Supreme Court's decision in Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 178, 4 P.3d 123 (2000), suggested that a superior court might have subject matter jurisdiction to consider whether a site-specific rezone complies with the GMA). However, soon after the superior court ruled in this case, the Supreme Court held that a superior court lacks subject matter jurisdiction to decide whether a site-specific rezone complies with the GMA. Woods, 162 Wn.2d at 608.
Accordingly, we reverse the superior court's order remanding this matter to the Board. We also exercise our discretion to reach the merits of Lenz's other contentions and affirm the Board's denial of Lenz's rezone request.
I
The subject parcel of 5.32 acres is zoned Rural and is located on the northern end of Camano Island, fronting State Route 532. Prior to a boundary line adjustment in 2002, the subject parcel was actually two separate parcels: a 0.83 acre property (smaller parcel) and part of an 8.53 acre property (larger parcel). Prior to the County's adoption of the ICCP and chapter 17.03 of the ICC, the smaller parcel was zoned non-residential and the larger parcel was zoned rural.
At the time the GMA took effect, the Shipwreck Bar Grill operated on the smaller parcel. The restaurant ceased operation in 1993 and the building was removed. A 30-foot-by-90-foot structure that covers a sand filter septic system remains on the property along with a drain field. According to Lenz, the closure of the restaurant coincided with the widening of SR 532 in 1993 when the parcel's previous owner, Glen Rengen, obtained a fill permit and deposited over 85,000 cubic yards of roadway excavation material on the property.
The restaurant was previously called the Camano Island Inn, and was established in 1971.
In 1997, the GMA was amended to allow counties to permit limited areas of more intensive rural development (LAMIRD). The legislature required counties to "adopt measures to minimize and contain the existing areas or uses of more intensive rural development" so that "[l]ands included in such existing areas or uses shall not extend beyond the logical outer boundary of the existing area or use, thereby allowing a new pattern of low-density sprawl." Laws of 1997, ch. 429, § 7; RCW 36.70A.070(5)(d)(iv). The legislature determined that "[f]or purposes of [LAMIRDs], an existing area or existing use is one that was in existence . . . [o]n July 1, 1990, in a county that was initially required to plan under all of the provisions of this chapter." RCW 36.70A.070(5)(d)(v).
In 1998, the County adopted the ICCP, chapter 17.03 of the ICC, and its zoning atlas. The County designated various areas as those of more intense rural development (RAIDs), which is the County's version of LAMIRDs. ICCP 1-161. One such RAID designation is Rural Village Lands. Although parcels within close physical proximity to the subject property were designated as Rural Village Lands, the County rezoned the smaller parcel from non-residential to Rural.
In an appeal to the Western Washington Growth Management Hearings Board (GMHB), the Island County Citizens' Growth Management Coalition questioned the County's compliance with the GMA. Island County Citizens' Growth Mgmt. Coalition v. Island County, No. 98-2-0023c (Final Decision and Order), 1999 GMHB Lexis 321, at *67-69 (June 2, 1999).
This challenge raised several issues related to whether the County designated too much land for development. However, no party questioned the code provision providing that in determining whether a parcel contains existing development that development must have existed on December 1, 1998. The Coalition contended that the County's designation process was flawed because the County did not collect the data necessary to determine uses as they existed in 1990. The GMHB ruled that the County's actions were not clearly erroneous because "[a]bsent argument that a non-residential or mixed-use RAID allows uses that are more intensive than existed in 1990, the Coalition fails to meet its burden of demonstrating that the County did not comply with the Act." Island County Citizens' Growth Mgmt. Coalition, 1999 GMHB Lexis 321, at *68-69. The GMHB did agree with the Coaltion that the County established some RAIDS that extended beyond their logical outer boundaries in violation of the GMA. However, none of the boundaries that were declared invalid involved the subject parcel. No party raised the question of whether the County improperly excluded the subject property from a RAID designation.
Rural Village Lands are
smaller existing non-residential and mixed-use areas located within mixed-use areas of more intensive rural development and are primarily intended for the retail sale of convenience goods as well as personal and business services needed to support the localized geographic area.
ICCP 1-99, 100. These are the designation criteria for Rural Village Lands:
A. The designation shall primarily be located on the periphery of residential neighborhoods.
B. Area must be served by an approved public or private water system.
C. In combination with other portions of an area of more intensive rural development, is larger than 5 acres in size.
D. These areas are generally located along highways, major arterials and collector roads.
E. Characterized by existing development that is predominantly non-residential and mixed-use.
F. Located within a mixed-use area of more intensive rural development as established by forming a logical outer boundary.
ICCP 1-100.
Rural Lands are "areas of the County not otherwise designated or within UGAs, [RAIDs], Rural Agriculture, Rural Forest or Commercial Agriculture." ICCP 1-102. These are the designation criteria for Rural Lands:
A. Areas where the land capacity is unsuited for higher density residential development; or
B. Areas outside of areas of more intensive rural development; or
C. Areas that enhance rural character and living environment; or
D. A buffer between Commercial Agriculture, Rural Agriculture and Rural Forest uses and urban uses.
ICCP 1-102.
In 2002, Rengen, the owner of both the smaller and larger parcels, obtained a boundary line adjustment that enlarged the smaller parcel to its current 5.32 acre size. Lenz purchased this property in 2005 with the intent of providing landscaping products and services to the Camano Island community if the property could be rezoned. In February 2006, Lenz submitted its application to rezone the 5.32 acres from Rural to Rural Village, claiming that the property had been given an incorrect designation in 1998.
The County planning and community development department recommended to the planning commission that the rezone application be denied. The Planning Commission held a public hearing and unanimously recommended to the Board that the rezone application be approved. The Board conducted its own public hearing and denied the application. Lenz petitioned the superior court for review of the Board's decision pursuant to the Land Use Petition Act (LUPA), chapter 36.70C RCW. The superior court, without deciding any other issue, remanded the matter to the Board, ordering that it use only the date of July 1, 1990, rather than the date of December 1, 1998, or a combination of those dates, as the date to determine the subject property's existing uses or existing areas. From this order, the County appeals.
II
"[A] challenge to a site-specific land use decision can be only for violations of the comprehensive plan and/or development regulations, not violations of the GMA." Woods, 162 Wn.2d at 616.
The legislature established Growth Management Hearing Boards (GMHBs) to decide petitions challenging whether comprehensive plans, development regulations, or permanent amendments to comprehensive plans or development regulations comply with the GMA. Woods, 162 Wn.2d at 609 (citing RCW 36.70A.250, .280, .290(2)).
[A] comprehensive plan or development regulation's compliance with the GMA must be challenged within 60 days after publication. RCW 36.70A.290(2). Once adopted, comprehensive plans and development regulations are presumed valid. RCW 36.70A.320(1). Thus, if a project permit is consistent with a development regulation that was not initially challenged, there is the potential that both the permit and the regulation are inconsistent with the GMA. While this is problematic, the GMA does not explicitly apply to such project permits and the GMA is not to be liberally construed. This court's "role is to interpret the statute as enacted by the Legislature . . .; we will not rewrite the [GMA]." Because the GMA does not provide for it, we hold that a site-specific rezone cannot be challenged for compliance with the GMA.
Woods, 162 Wn.2d at 614 (citations omitted).
Lenz contends that it did not raise the issue of whether the County's code requirements comply with the GMA but, rather, questioned whether the County properly followed the plain meaning of the ICC and ICCP. Lenz is wrong. The argument raised by Lenz induced the superior court to rule that the County's code definition was inconsistent with the GMA. The superior court was without authority to do so, as our Supreme Court declared seven weeks later.
Island County Comprehensive Plan
The ICCP defines "Rural Village" as lands that
are smaller existing non-residential and mixed-use areas located within mixed-use areas of more intensive rural development and are primarily intended for the retail sale of convenience goods as well as personal and business services needed to support the localized geographic area.
ICCP 1-99, 100 (emphasis added). Designation criterion "E" for a Rural Village requires that the land be "[c]haracterized by existing development that is predominantly non-residential and mixed-use." ICCP 1-100 (emphasis added). The glossary of the ICCP defines "Existing" as "[u]nless otherwise expressly stated, existing or vested on the effective date of this Comprehensive Plan, December 1, 1998." ICCP 1-163 (emphasis added). The ICCP defines "Existing Use" as "[a] use which meets the definition of existing and was lawfully established and maintained including those which, because of the enactment of this plan's accompanying development regulations, no longer conforms to the land use standards or use regulations of the land use district in which it is located." ICCP 1-163 (emphasis added).
Island County Code
The ICC states that the Rural Village Zone "is applied to Existing areas of Mixed-Use or intense Non-Residential or Commercial development and encompasses the Logical Outer Boundary of the Existing pattern of Mixed-Use or non-Residential development located on a State highway or County arterial." ICC 17.03.130 (emphasis added). The ICC also defines "Existing" as "[u]nless otherwise expressly stated, Existing or vested on the effective date of this Chapter, December 1, 1998." ICC 17.03.040 (emphasis added). The ICC defines "Existing Use" as "[a] Use which meets the definition of Existing and was lawfully established and maintained including those which, because of the enactment of this Chapter, no longer conforms to the land Use standards or Use regulations of the zone in which it is located." ICC 17.03.040 (emphasis added).
The ICC also states that
[a]reas with a predominant pattern of Mixed-Use or Non-Residential development Existing on July 1, 1990 may be designated [Rural Village] when all of the following criteria set forth are met. . . .
1. Parcels served by an approved public or private water system; and
2. Contain Residential and Non-Residential Uses legally established prior to July 1, 1990; and
3. In combination are five (5) acres or larger in size; and
4. Parcels that are adjacent to or between areas defined by designation criteria No. 2 that establish a Logical Outer Boundary for the [Rural Village] Zone.
ICC 17.03.130(D) (emphasis added).
Growth Management Act
The GMA does not define "existing," but does explain that "existing areas" of LAMIRDs "are those that are clearly identifiable and contained and where there is a logical boundary delineated predominately by the built environment, but that may also include undeveloped lands if limited as provided in this subsection." RCW 36.70A.070(5)(d)(iv). For the purposes of establishing LAMIRDs, "an existing area or existing use is one that was in existence . . . [o]n July 1, 1990, in a county that was initially required to plan under all of the provisions of this chapter." RCW 36.70A.070(5)(d)(v) (emphasis added).
The County contends that it was free to adopt stricter standards for LAMIRDs than those set forth in the GMA. To this end, the County asserts, it was free to require that, to qualify as an "existing use," the use must both have been in existence on July 1, 1990, and continue to be in existence on December 1, 1998.
The superior court disagreed.
I can't find any basis in either the Growth Management Act or the Island County code to justify using these dual dates. The only date that the statute calls for is the 1990 date. I don't think you can use both. I think that's an attempt to have the best of both worlds. Therefore, the 1990 date is the appropriate date.
(Emphasis added.) Thus, by ordering that the County could use only the July 1, 1990 date to determine the existing uses or existing areas in deciding Lenz's rezone request, the superior court necessarily determined that using the 1998 date set forth in both the ICCP and the ICC was precluded because it was inconsistent with the GMA. However, a superior court lacks subject matter jurisdiction to conduct such an analysis in the course of judicially reviewing a site-specific rezone request. Woods, 162 Wn.2d at 608. Accordingly, we reverse the superior court's decision.
III
Because this court stands in the same position as a superior court on review of a land use petition, the remaining issues advanced by Lenz are properly before us. Woods, 162 Wn.2d at 616. We choose to exercise our discretion to resolve them.
Before turning to the merits of these issues, we must first clarify the record on review.
By voice vote, the Board adopted a motion denying Lenz's rezone application at the March 26, 2007 hearing. On April 13, 2007, Lenz filed its LUPA petition in the superior court, attaching the Board minutes from the March 26, 2007 meeting. On May 7, 2007, the Board adopted its formal written decision, which was included as part of the record submitted to the superior court.
Noting that it petitioned for review of the Board's oral decision of March 26, 2007, not its written decision of May 7, 2007, Lenz contends that we should not concern ourselves with the Board's written decision. Lenz further asserts that the County's claim that it is proper to consider whether parcels contained existing development on both December 1, 1998 and July 1, 1990 first appeared in the written decision and has no support "anywhere in the written record."
In resolving Lenz's contention that we should disregard the Board's written decision, we note that Lenz does not cite to any authority in support of the proposition that by petitioning for review after an oral decision is made, but before a written decision is adopted, the petitioner precludes the reviewing court from considering the local government's written decision.
"Written findings and conclusions entered by a public body adjudicating land use issues may serve to elucidate the scope of the body's immediate oral decision." Snohomish County Improv. Alliance v. Snohomish County, 61 Wn. App. 64, 72, 808 P.2d 781 (1991) (quoting Martel v. Vancouver, 35 Wn. App. 250, 258-59, 666 P.2d 916 (1983)). Martel was an action challenging a zoning variance granted to landowners. 35 Wn. App. at 251. In that case, the Board of Adjustment filed its written findings and conclusions several weeks after the hearing in which the variance was granted. The party challenging the decision contended that the written findings included factual determinations that were not articulated by the Board at the conclusion of its deliberations at the hearing.
Martel, 35 Wn. App. at 258. The appellate court determined that the findings accurately reflected the proceedings and the Board's deliberations and noted that "[e]ven where an ordinance requires entry of supporting findings and conclusions contemporaneously with the administrative body's decision, a delay in entering them is not fatal to the action unless one of the parties is prejudiced by the delay." Martel, 35 Wn. App. at 258.
In the present case, the Board was only required to adopt findings of fact in the event that it approved Lenz's rezone request. ICC 16.26.060(F). However, that is not to say that the Board was precluded from issuing a written decision as its official decision upon denial of the request.
Moreover, as the County correctly notes, the minutes from the August 22, 2006 Island County Planning Commission public hearing demonstrate that Jeff Tate, assistant director of planning and community development, did address the County's consideration of both the 1990 and 1998 dates regarding Lenz's rezone application:
Jeff Tate explained that the GMA date is July 1, 1990. The County Code and Comprehensive Plan established a definition for existing use as of December 1, 1998. The County is looking at both those dates; it was in existence when the GMA was enacted but it was not in existence when the County's Comprehensive Plan and the designation criteria that were developed for the zone were put into place.
(Emphasis added.) Accordingly, the Board's written decision is properly considered to be part of the record on review.
Before discussing whether the Board properly denied Lenz's rezone request, we must also clarify the parameters of such an analysis. Lenz contends that the ICCP and ICC "may not layout in detail" the standards for establishing Rural Village Lands. Instead, without citing to any supporting authority, Lenz contends that the County adopted the provisions of RCW 36.70A.070 as its standards simply by referencing the GMA statute in the ICCP. According to Lenz, statements in the ICCP that various of its provisions were adopted "pursuant to" RCW 36.70A.070, result in the statute being incorporated by reference into the ICCP. Thus, Lenz reasons, in determining whether the subject property should have been designated Rural Village under the ICCP, we necessarily must look to the provisions of RCW 36.70A.070. We disagree.
See ICCP 1-98, 1-161, 1-165.
We first note that, contrary to Lenz's contention, RCW 36.70A.070 expressly states that a "county shall adopt measures to minimize and contain the existing areas or uses of more intensive rural development, as appropriate, authorized under this subsection." RCW 36.70A.070(d)(iv) (emphasis added).
This is consistent with the statute's mandate that a county's comprehensive plan "shall consist of a map or maps, and descriptive text covering objectives, principles, and standards used to develop the comprehensive plan." RCW 36.70A.070. Nothing in RCW 36.70A.070 prohibits a county from laying out in detail the standards for establishing Rural Village Lands.
Similarly, we reject Lenz's contention that the ICCP incorporates the provisions of the GMA by reference.
The common law doctrine of incorporation by reference has general usage in civil law and is recognized in Washington. The burden of proving incorporation by reference is upon the party claiming it. One of the indispensable elements of incorporation by reference arises out of common sense, and that is the requirement that the incorporated document be described with sufficient specificity that it can be readily and accurately identified as the document intended to be incorporated.
State v. Ferro, 64 Wn. App. 195, 198, 824 P.2d 500 (1992) (citation omitted) (citing Baarslag v. Hawkins, 12 Wn. App. 756, 760-61, 531 P.2d 1283 (1975)). Lenz urges us to interpret the "pursuant to" language in the ICCP as evidence of the County's intent to adopt the provisions of RCW 36.70A.070 as its own standards for establishing Rural Village Lands. We decline to do so. Such "pursuant to" language, at most, explains the authority under which the County is acting in adopting its comprehensive plan. Thus, in addressing the merits of Lenz's LUPA petition, we apply the ICCP and ICC, as written.
Compare, e.g., RCW 15.65.047(2)(b) (statute addressing the duties and responsibilities of the state director of agriculture expressly states that the "proposed amendments adopt or incorporate by reference without material change federal statutes or regulations, Washington state statutes, or rules of other Washington state agencies, if the material adopted or incorporated regulates the same activities as are authorized under the marketing order or agreement").
IV
Lenz contends that the Board did not properly apply the County's designation criteria in denying its rezone request.
"An appellate court reviews an administrative decision under the substantial evidence standard and conclusions of law de novo." Woods, 162 Wn.2d at 616. "`Under the substantial evidence standard, there must be a sufficient quantum of evidence in the record to persuade a reasonable person that the declared premise is true.'" Woods, 162 Wn.2d at 616 (quoting Wenatchee Sportsmen, 141 Wn.2d at 176).
Under LUPA, the party seeking relief has the burden of establishing that one of the following six standards has been met:
"(a) The body or officer that made the land use decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless;
(b) The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise;
(c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court;
(d) The land use decision is a clearly erroneous application of the law to the facts;
(e) The land use decision is outside the authority or jurisdiction of the body or officer making the decision; or
(f) The land use decision violates the constitutional rights of the party seeking relief."
Woods, 162 Wn.2d at 616-17 (quoting RCW 36.70C.130(1)). "`Issues raised under subsection (c) challenge the sufficiency of the evidence.' In a challenge for sufficiency of the evidence, `[w]e view inferences in a light most favorable to the party that prevailed in the highest forum exercising factfinding authority.'" Woods, 162 Wn.2d at 617 (quoting Benchmark Land Co. v. City of Battle Ground, 146 Wn.2d 685, 694, 49 P.3d 860 (2002) (citation omitted)). Therefore, we view the record and inferences therefrom in the light most favorable to the County, the party that prevailed before the Board.
The Board concluded that the subject parcel, on December 1, 1998, did not meet the ICCP's designation criteria "E" for Rural Village Lands. Rural Village Lands are "smaller existing non-residential and mixed-use areas." ICCP 1-99 (emphasis added). Designation criterion "E" for a Rural Village requires that the land be "[c]haracterized by existing development that is predominantly non-residential and mixed-use." ICCP 1-100 (emphasis added). "Existing" is defined as "existing or vested on the effective date of this Comprehensive Plan, December 1, 1998." ICCP 1-163 (emphasis added). The ICCP further defines "Existing Use" as "[a] use which meets the definition of existing and was lawfully established and maintained." ICCP 1-163 (emphasis added).
It is undisputed that the restaurant that once operated on the subject property ceased operation in 1993 and the building was removed. As the Board noted, while "utilities such as a septic system or drainfield may be considered development, the Board does not agree that an abandoned stand-alone septic system or drainfield which is not serving any particular use may be considered non-residential or mixed-use development." Thus, the subject property did not meet the ICCP's definition of Rural Village Lands or its designation criteria on December 1, 1998.
Nevertheless, Lenz contends that the subject property met the designation criteria under the County code. According to the County's code, the Rural Village Zone "is applied to Existing areas of Mixed-Use or intense Non-Residential or Commercial development." ICC 17.03.130 (emphasis added). The code also defines "existing" as "[e]xisting or vested on the effective date of this Chapter, December 1, 1998." ICC 17.03.040 (emphasis added). The code further defines "Existing Use" as "[a] Use which meets the definition of Existing and was lawfully established and maintained." ICC 17.03.040 (emphasis added). The code also states that for property to be designated as Rural Village, it must " Contain Residential and Non-Residential Uses legally established prior to July 1, 1990." ICC 17.03.130(D) (emphasis added). Thus, in order for the subject property to have been designated as Rural Village, its non-residential use must have been established by July 1, 1990, and continue to be present on December 1, 1998. This two-date approach is consistent with applicable authority. "In general, LAMIRDs allow continuation of greater densities than are usually permitted in rural areas, such as commercial areas at crossroads, recreational areas, and transportation corridors." Gold Star Resorts, Inc. v. Futurewise, 140 Wn. App. 378, 391, 166 P.3d 748 (2007) (emphasis added). "LAMIRDs are intended to be a one-time recognition of existing areas and uses and are not intended to be used continuously to meet needs (real or perceived) for additional commercial and industrial lands." People for a Liveable Community v. Jefferson County, No. 03-2-0009c (Final Decision and Order) 2003 GMHB Lexis 34, at *2 (August 22, 2003) (emphasis added).
Lenz contends that the ICCP and ICC definition of "existing" only applies to non-conforming uses and not to the designation criteria of a Rural Village. His contention is without merit. Nothing in the ICCP or ICC limits the application of the definition of "existing" only to non-conforming uses.
Thus, not only did the subject property not qualify for a Rural Village designation under the ICCP, it also did not qualify under the County code. Accordingly, the Board properly denied Lenz's rezone request.
Because the subject property did not qualify for a Rural Village designation under the County code, we need not address Lenz's contention that the Board failed to follow proper review procedures by applying the designation criteria of the ICCP rather than that of the County code. We note, however, that "if a conflict between the [Comprehensive] Plan and the Zoning Code arises, the Plan will control." ICC 17.03.030(B).
Moreover, because we affirm the Board's denial of Lenz's rezone request, we need not address the County's contention that granting the rezone would improperly extend the outer boundary of a RAID.
V
The superior court order is reversed. The Board's decision to deny the rezone application is affirmed.