Opinion
No. 51111-4-I.
Filed: May 3, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 01-2-34435-8. Judgment or order under review. Date filed: 08/23/2002. Judge signing: Hon. Kathleen J Learned.
Counsel for Appellant(s), Duana Theresa Kolouskova, Johns Monroe Mitsunga PLLC, 1500 114th Ave SE Ste 102, Bellevue, WA 98004-6902.
Counsel for Respondent(s), David Scott Mann, Attorney at Law, 1424 4th Ave Ste 1015, Seattle, WA 98101-2217.
Sharon Sullivan Eckholm, Washington Attorney General/Lic Emp, PO Box 40110, Olympia, WA 98504-0110.
Michael R. Kenyon, Kenyon Disend PLLC, 11 Front St. S, Issaquah, WA 98027-3820.
Darren E. Carnell, King Cnty Pros Atny Ofc, 516 3rd Ave Ste E550, Seattle, WA 98104-2390.
Michael Allan Spence, Attorney at Law, 2033 6th Ave Ste 1040, Seattle, WA 98121-2527.
A local government is the primary source for the meaning and interpretation of its actions in amending its comprehensive plan. This is what the deference required by the Growth Management Act means. The duty of a growth management hearings board is to determine whether particular amendments are consistent with a local government's comprehensive plan, and consistent with the Growth Management Act. Here, King County's interpretation of its amendments demonstrates no clear inconsistency between those amendments and the overall comprehensive plan. However, because the Central Puget Sound Growth Management Board did not determine whether the amendments were otherwise inconsistent with the Growth Management Act, we must remand for that determination.
Ch. 36.70A RCW.
FACTS
In 1994, King County incorporated a forest production district into its required Growth Management Act (GMA) comprehensive plan. That plan recognized that `very low residential densities adjacent to Resource Lands are essential to minimize land use conflicts.' The King County comprehensive plan limited residential densities in rural areas, and had even stricter density limitations on rural properties near forest production districts.
Robert Yerkes owns property located in King County's rural area between its forest production district and the City of North Bend's urban growth area. Yerkes' property consists of four parcels totaling 80 acres: two 20-acre parcels, one 36-acre parcel, and one 4-1/2 acre parcel. The property is bounded on the west and south by the forest production district and on the north and east by Interstate 90 and other rural properties. Across Interstate 90, the property is also rural. The City of North Bend and the North Bend/Snoqualmie urban growth areas are less than one-half mile from the property. In 1994, King County zoned Yerkes' property RA-10, allowing for a maximum density of one dwelling unit per 10 rural acres. The rural properties to the east of Yerkes' property and across Interstate 90 were also zoned RA-10.
On February 12, 2001, as part of its 2000 comprehensive plan amendments, the King County Council enacted Ordinance No. 14044. This ordinance changed the zoning designation of Yerkes' property from RA-10 to RA-5 (one home per five rural acres). However, the ordinance specified that any residential development on Yerkes' property be clustered on a 30-acre portion on the property, and that the remainder of the property be permanently dedicated as open space. In adopting the ordinance, King County specifically stated that the various zoning changes were needed to maintain conformity to the comprehensive plan, and that the rezones, including Yerkes' property, were `adopted as amendments to the King County Comprehensive Plan.' The map that was before the county council is attached to this opinion.
The rezone of Yerkes' property generated opposition from the public and the City of North Bend. The Forster Woods Homeowner's Association, the Friends and Neighbors of Forster Woods (Forster Woods), and the City of North Bend appealed King County's rezone to the Central Puget Sound Growth Management Hearings Board (Board), claiming the ordinance violated King County's comprehensive plan and the GMA.
The Board identified two primary issues raised by the City of North Bend and Forster Woods with respect to the Yerkes' rezone: (1) whether the ordinance violated the GMA by amending development regulations so that they were inconsistent with King County's comprehensive land use plan; and (2) whether the ordinance violated the GMA because the map amendments did not assure that the use of lands adjacent to forest resource lands would not interfere with the continued use of such lands.
The Board examined King County's comprehensive plan and various policies within the plan. With respect to the first issue, the Board focused on Policy R-205 and concluded:
The Board need only look to Plan Policy R-205 to address this legal issue. Policy R-205 provides in relevant part:
A residential density of one home per ten acres shall be applied in the rural area where the predominant lot size is ten acres or larger . . . (Emphasis added).
The Board is directed by the phrase `in the rural area' in Policy R-205 to look to the predominant lot size in the Rural Area, not the urban lands within the UGA nor the resource lands within the FPD. To discern what `the rural area' is, the Board reviews Ex. 12622, a zoning map titled `South I-90 Proposed Zoning Amendment.' Shown on this exhibit are the following designations: `UR' (Urban), `F' (Forest) and `RA-10' and `RA-5 (rural ten and five acre lot sizes, respectively).
In evaluating the `Rural Area' shown on this County map, the Board notes that a County staff person has made notations of the lot sizes of the parcels, which range from `less than 5 acres' in the southeast corner of the `Rural Area' to `20 acre' and [']40 acre' lots in most of the rest of the area. After a review of the information on this map, the Board concludes that the most conspicuous and prevalent lot sizes `in the rural area' are more than ten acres in size. Some five acre lots exist within this rural area, however the predominant lot size is more than ten acres (20 and 40 acre lots.) Therefore, the County's rezoning of the Yerkes property to RA-5 is inconsistent with Policy R-205 and does not comply with RCW 36.70A.040(3) and .130(1).
Because the decision on the first issue rendered the rezoning invalid, the Board did not examine whether the ordinance violated RCW 36.70A.060. Yerkes appealed the Board's order to the King County Superior Court. The superior court declined to overturn the Board's determination that the rezone was invalid, holding that the Board properly interpreted and applied Policy R-205. Yerkes appeals.
RCW 36.70A.060 (2000) addresses development regulations for natural resource lands and critical areas, requiring counties and cities with comprehensive plans to adopt development regulations to assure the conservation of designated agricultural, forest, and mineral resource lands. It also requires such regulations `assure that the use of lands adjacent to agricultural, forest, or mineral resource lands shall not interfere with the continued use, in the accustomed manner and in accordance with best management practices, of these designated lands for the production of food, agricultural products, or timber, or for the extraction of minerals.'
DECISION
When reviewing a decision of the Board, we base our review upon the record before the Board. The validity of the Board's decision is determined in accordance with the standards of review provided in RCW 34.05.570 of the Administrative Procedure Act. We review the Board's decision from the same vantage point as the trial court. We review the Board's findings of fact for substantial evidence, but we review the Board's legal conclusions de novo, giving substantial weight to its interpretation of the statute it administers. The `burden of demonstrating the invalidity of [the Board's decision] is on the party asserting the invalidity.'
Thurston County v. Cooper Point Ass'n, 148 Wn.2d 1, 7, 57 P.3d 1156 (2002).
Cooper Point Ass'n, 148 Wn.2d at 8.
Diehl v. Mason County, 94 Wn. App. 645, 652, 972 P.2d 543 (1999).
Diehl, 94 Wn. App. at 652.
Cooper Point Ass'n, 148 Wn.2d at 7-8 (citing RCW 34.05.570(1)(a)).
The Board has statutory authority under the GMA to hear petitions and determine whether King County complied with the requirements of the act. Amendments to comprehensive plans are deemed valid upon adoption. The GMA requires the Board to grant deference to King County's decision to amend its own comprehensive plan. The GMA also requires a reviewing body to give great weight to the enacting body's interpretation of zoning ordinances. Thus, the Board must find compliance `unless it determines that the action by the state agency, county, or city is clearly erroneous in view of the entire record before the board and in light of the goals and requirements [of the act].'
See, e.g., RCW 36.70A.280(1); Skagit Surveyors Engineers, LLC v. Friends of Skagit County, 135 Wn.2d 542, 558-59, 958 P.2d 962 (1998).
RCW 36.70A. 3201.
McTavish v. City of Bellevue, 89 Wn. App. 561, 564, 949 P.2d 837 (1988).
At issue here is the meaning and interpretation of the words `predominant lot size' in Policy R-205. King County argued to the Board that Policy R-205 and the amendments rezoning Yerkes' property were not inconsistent. King County asserted that the language `predominant lot size' in Policy R-205 was to be interpreted in reference to all the surrounding lots within a reasonable radius of the property, not just the rural properties, and such an approach resulted in Yerkes' property being excluded from Policy R-205.
The Board's emphasis on the words `Rural Area' is misguided because the lots at issue will be ipso facto in the rural area. If the words `Rural Area' help in the analysis at all, it is because they are defined in the Comprehensive Plan. Most pertinently, Policy R-102 contains the following:
The Rural Area is comprised of all lands in King County outside of the designated Urban Growth Area (UGA), and not including the designated Forest and Agricultural Production Districts. The Rural Area is generally located east of the UGA, with the exception of the Rural Cities and their UGAs, and also includes the entirety of Vashon-Maury Islands. Within the Rural Area, three land use categories are applied: Rural, allowing low-density residential development, forestry, farming, and a range of traditional rural uses; Rural Town, recognizing historical settlement patterns and allowing commercial uses to serve rural residents; and Rural Neighborhood, allowing small-scale convenience services for nearby rural residents. Putting the section in context, it was not clearly erroneous for the County to interpret the term `Rural Area' in section 205 as being merely a general reference. As the County and Yerkes argue, 10-acre zoning is not fixed, but only where that is the predominant lot size and the land is adjacent to a forest production district. Further context for section 205 exists. Policy R-204 provides:
A residential density of one home per 20 acres or 10 acres shall be achieved through regulatory and incentive programs on lands in the Rural Area that are managed for forestry or farming respectively, and are found to qualify for a Rural Farming Forest District designation in accordance with Policy R-108.
Policy R-206 provides:
A residential density of one home per 5 acres shall be used in portions of the Rural Area where the land is physically suitable for development and can be supported by rural services, and does not meet the criteria in this plan for higher or lower density designations.
The accompanying comment states:
Although King County intends to retain low residential densities in the Rural Area, residential development has occurred in the past on a wide variety of lot sizes. Both existing homes on small lots and rural infill on vacant, small lots contribute to the variety of housing choices in the Rural Area. In some cases, however, rural-level facilities and services (e.g. on-site sewage disposal, individual water supply systems) may not permit development of the smallest vacant lots.
Policy R-207 provides in pertinent part:
A residential density of one home per 2.5 acres shall recognize areas of existing lots below five acres in size. These existing substandard lots may still be developed provided applicable standards for sewage disposal, environmental protection, water supply, roads and rural fire protection can be met. A subdivision at a density greater than one home per five acres shall not be permitted unless the property is zoned RA 2.5 and is surrounded on at least three sides by existing lots of less than five acres in size or existing lots that are at least five acres in size and are developed for schools, libraries or commercial facilities.
It is evident that King County intends a comprehensive plan that attempts to recognize the reality of rural development, that such development runs the gamut from rural cities to forest production and farming. The comprehensive plan does not favor 10 acre zoning. Indeed, it favors 5 acre zoning in rural areas.
The term `predominant lot size' is far from clear and King County's approach is reasonable both in terms of the actual circumstances of the Yerkes property and in terms of the comprehensive plan considered more as a whole. It is at this juncture that the deference required by the GMA, as well as by general principles for review of administrative decisions, comes into play.
The Board's authority is circumscribed by the language of the GMA. The Board may review the County's action for consistency with the comprehensive plan and for compliance with the GMA. In doing so, it must give deference to the County with regard to interpretation of the County's ordinances, and it can only overturn that interpretation when it determines that the county action is clearly erroneous. That process was short circuited here.
RCW 36.70A.280(1).
McTavish, 89 Wn. App. at 564.
As reference to the decision shows, the Board truncated the inquiry in this case, apparently applying a form of the `plain meaning' rule to this action. While we do not question that the Board must give statutory language its plain meaning where it is clear and unambiguous, that is not the case here. Thus, deference was required, and deference demanded the Board take the County's interpretation at face value. This left the Board to determine two questions, whether the interpretation was consistent with the King County Comprehensive Plan and, if so, whether it was otherwise inconsistent with the GMA. On this record, it should be apparent that our answer to the first question is in the affirmative. The Board did not answer the second question and to that extent we must reverse the trial court and remand to the Board.
Washington State Human Rights Comm'n ex rel. Spangenberg v. Cheney Sch. Dist. 30, 97 Wn.2d 118, 121, 641 P.2d 163 (1982).
We express considerable skepticism that the Board can determine the action inconsistent with the GMA if it properly applies the clearly erroneous standard.
APPELWICK and BECKER, JJ., concur.
I concur in the result reached by the majority but not necessarily the analysis. The central problem as I see it is the ambiguity in policy R-205: The density of one home per 10 acres `shall be used in the Rural Area where the predominant lot size is 10 acres or larger'. I am not convinced that any of the various interpretations of this language make any sense at all nor have I been able to come up with an interpretation that is any more plausible.
I am not even sure the County had an interpretation at the time the rezone was adopted; the record of the vote on the rezone contains none. The Board's characterization of the County's interpretation is based on the argument made by the County later, when the dispute arrived at the Board. At that point, the County argued: `While the Forest Production District is primarily composed of large lots, the majority of the other lots in the vicinity of the Yerkes property have lot sizes less than ten acres in size.' The phrase, `in the vicinity' of the Yerkes property, contains no limitation. It would appear to give the County complete flexibility to decide which lots are near enough `in the vicinity' to be included in some undefined portion of the County's Rural Area where `predominant' lot sizes are being measured.
Board Final Decision and Order at p. 25, citing CPB at 20 (Clerk's Papers at 35).
Vague terms and phrases tend to lead to arbitrary decision making. Nevertheless, because policy R-205 is ambiguous, the County's unexplained and unsatisfactory interpretation is entitled to more deference than the Board's unexplained and unsatisfactory interpretation.
The majority remands so that the Board can answer the question it did not have to reach in its first decision: whether the ordinance violates RCW 36.70A.060. I agree that remand is the proper result in this appeal. What the outcome will be on remand is in my view an open question, and despite the view expressed by the majority in footnote 17, the issue should be considered by the Board with an open mind.