Caswell v. Pierce County

992 P.2d 534, 99 Wash. App. 194

• Court: Court of Appeals of Washington
• Decided: January 31, 2000
• Docket: 41882-3-I
• Status: Published

Opinions

Grosse, J.

The validity of a county’s Interim Urban Growth Area (IUGA) ordinance is an issue subject to review by a growth management hearings board and cannot be challenged in superior court under the Land Use Petition Act (LUPA). As a result, where, as here, a county approves a development outside its urban growth boundary that may be considered urban in nature, but the county’s action is in accordance with its IUGA ordinance, a petitioner may not challenge the ordinance under LUPA on the basis that the ordinance is contrary to the Growth Management Act (GMA). We reverse the superior court’s ruling to the contrary and reinstate the hearing examiner’s determination.

FACTS

On March 15, 1994, Fir Grove Partnership (Fir Grove) filed an application for a conditional use permit to expand its existing mobile home park in rural Pierce County. At the time of its application, the proposed development was within Pierce County’s general-rural zone.¹ The zone allowed low density development, which included mobile home parks with densities not to exceed 10 units per acre. Fir Grove’s proposed development had a density of 2.8 units per acre.

Also in effect during this time was a county ordinance designating its IUGA,² adopted pursuant to the GMA.³ Exhibit “B,” finding of fact 15 of the ordinance, specifically stated that the general-rural zone, along with several other interim development regulations, was adopted in anticipation and in furtherance of the GMA and would remain in effect during the interim period.

On January 31, 1997, a Pierce County hearing examiner concluded that Fir Grove’s proposed mobile home park would not have been permitted under then existing regulations because its approval would result in an urban density outside the IUGA. But the hearing examiner also found that Fir Grove’s application was complete on March 15, 1994 and, as a result, the conditional use permit was vested and subject to the development regulations in effect as of that date. The hearing examiner approved the conditional use permit, stating that the development was authorized by the general-rural zone, which took precedence over Pierce County’s Interim Growth Management Policies and Comprehensive Plan. The hearing examiner also approved Fir Grove’s May 28, 1996 request for a variance to Pierce County’s stream buffer requirements based on the conclusion that the variance would not adversely affect either the 1962 or 1994 comprehensive plan.

The Caswells, adjacent property owners, sought review of the hearing examiner’s decision in Ring County Superior Court under LUPA.⁴ The court concurred with the hearing examiner’s conclusion that the proposed development constituted urban growth outside Pierce County’s IUGA. The court also concurred that, notwithstanding Fir Grove’s request for a variance, the application for a conditional use permit was complete on March 15, 1994, and Fir Grove had a vested right to have the application evaluated under then existing development regulations. But the court reversed, holding that the hearing examiner committed an error of law by failing to consider that the proposal was contrary to Pierce County’s IUGA ordinance and the GMA.

Pierce County and Fir Grove appeal.

DISCUSSION

I. Scope of Review

The Caswells have not cross-appealed the hearing examiner’s conclusion, and the superior court’s concurrence, that Fir Grove’s application was complete upon filing and the application vested notwithstanding the requested variance. As a result, we do not address those issues.⁵ Our review is limited, therefore, to the issues upon which the superior court reversed, i.e., the court’s concurrence with the hearing examiner’s conclusion that the proposed development constituted urban density outside Pierce County’s IUGA, and the court’s determination that the hearing examiner failed to consider the fact that the proposed development, for the above cited reason, was contrary to Pierce County’s IUGA ordinance and the GMA.

II. The Caswells cannot challenge Pierce County’s IUGA ordinance under LUPA

The Legislature established a precise process by which its policies under the GMA are to be' implemented and procedures for review of local legislative decisions in furtherance of those policies. The GMA requires counties to adopt a Comprehensive Growth Management Plan, which, among other things, designates urban growth areas.⁶ In the development and amendment of those plans, the “GMA expressly provides for ‘early and continuous public participation!;.]’ ”⁷

The GMA further establishes growth management hearings boards. The boards have the power to hear and determine petitions alleging, inter alia, that a county is not in compliance with the requirements of the GMA.⁸ RCW 36.70A.280 permits those persons who participated before the county regarding the matter upon which review is requested, or persons aggrieved or adversely affected by the county’s actions, to file petitions for review with the board.

This case arises from a LUPA petition for review of a hearing examiner’s ruling. LUPA is generally “the exclusive means of judicial review of land use decisions” by local jurisdictions.⁹ But LUPA does not apply to decisions subject to review by a growth management hearings board.¹⁰ Therefore, before conducting an analysis of the issues before this court, we must examine the nature of the Caswells’ allegations and the extent to which Pierce County’s actions could have been reviewed by the Central Puget Sound Growth Management Hearings Board.

The Caswells claim that Pierce County’s IUGA ordinance fails to comply with the GMA. RCW 36.70A.110(5) specifically states that a county’s IUGA ordinance may be appealed “to the appropriate growth management hearings board under RCW 36.70A.280.” Granted, the Caswells may not have standing at this juncture to appeal to the board because they failed to file a petition for review within 60 days after publication of Pierce County’s IUGA ordinance.¹¹ But whether the Caswells had standing is not the focus of our inquiry.

The issue under the LUPA exception in question is whether the local land use decision itself is subject to review by a growth management hearings board.¹²

(1) This 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, except that this chapter does not apply to:

(a) Judicial review of:

(ii) Land use decisions of a local jurisdiction that are subject to review by a quasi-judicial body created by state law, such as the shorelines hearings board or the growth management hearings board[.]

Whether an individual petitioner has standing to assert a claim based on that decision is immaterial. As a result, the issue of whether Pierce County’s IUGA ordinance complies with the GMA should have been brought before the Central Puget Sound Growth Management Hearings Board and may not be reviewed by way of a LUPA petition.¹³

We recognize that our holding here is in apparent conflict with the recent opinion in Association of Rural Residents v. Kitsap County,¹⁴ In that case, distinguishing a Washington Supreme Court opinion holding that a local zoning ordinance trumps a more general GMA definition of urban growth, this court stated:

Here, we are faced not with a difference between a local plan and local regulations, but a difference between local regulations and a state statute both defining in their different ways where urban growth is permissible and where it is not permissible. Where a local ordinance cannot be harmonized with a conflicting statute, the statute prevails.[¹⁵]

The court concluded that Kitsap County’s pre-GMA zoning and planned unit development ordinance, which permitted urban growth outside the county’s IUGA, was not controlling because it conflicted with the GMA’s definition of urban growth.¹⁶ The court did not reach the issue of whether the development also conflicted with the county’s IUGA ordinance, which was on remand from the Central Puget Sound Growth Management Hearings Board as contrary to the GMA. And most importantly, the court did not specifically address the scope of review permitted under LUPA. In fact, a review of the briefs filed in the case indicates that the issue was not raised on appeal.

Because the issue of the scope of review permitted under LUPA was not directly addressed in Association of Rural Residents, that case is not controlling. The Legislature established a process for the review of development regulations under the GMA, and there is no question that the issue before us would have been an appropriate subject for a growth management hearings board. To the extent the Caswells argue that Pierce County’s IUGA conflicts with the GMA, they have chosen the wrong forum.

III. Pierce County’s IUGA ordinance specifically references and further implements the county’s general-rural zoning ordinance, which permits the type of development Fir Grove proposes

A court may grant relief under LUPA only where, after review of the record before the hearing examiner, a petitioner establishes:

(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.[¹⁷]

Notwithstanding Fir Grove’s argument that the superior court failed to accord the hearing examiner substantial weight under RCW 36.70C.130(l)(b) in interpreting the Pierce County Code, this case actually turns on the hearing examiner’s application of the law under RCW 36.70C-.130(l)(d). The hearing examiner concluded that Fir Grove’s proposed development was urban in nature but the general-rural zoning ordinance was applicable and took precedence over the inconsistent Interim Growth Management Policies and Comprehensive Plan. The hearing examiner did not directly consider whether the general-rural zone remained in effect after Pierce County adopted its IUGA ordinance, which is itself a development regulation.¹⁸

Citing the GMA’s prohibition on urban development outside an IUGA, and concurring with the hearing examiner’s conclusion that Fir Grove’s proposed development would result in urban density outside Pierce County’s IUGA, the superior court held that the hearing examiner’s approval of Fir Grove’s conditional use permit violated Pierce County’s IUGA ordinance and the GMA. The court, in effect, conducted its own evaluation of Pierce County’s IUGA ordinance and concluded that the proposed development was in conflict with the ordinance as a matter of law. Consequently, we must independently examine the ordinance to determine whether Pierce County intended by its enactment to prohibit Fir Grove’s development of a mobile home park in the general-rural zone.

Pierce County’s IUGA ordinance had the stated purpose of designating interim urban growth areas, areas beyond which urban growth was precluded, and setting forth a process by which Pierce County was to designate final urban growth areas. The ordinance states in relevant part:

WHEREAS, RCW 36.70A.110G) requires Pierce County to designate an urban growth area(s) within which urban growth shall be encouraged and outside of which growth can occur only if it is not urban in nature; and

BE IT ORDAINED by the Council of Pierce County:

Section 2. The interim urban growth areas for Pierce County and the cities and towns within Pierce County are hereby adopted as shown in Exhibit “A” attached hereto and incorporated herein by reference. . . .

Section 6. The findings of fact, as set forth in Exhibit “B” are hereby adopted and by this reference incorporated herein.

Exhibit “A” is a large map designating with specificity Pierce County’s interim urban growth areas. Exhibit “B” provides in part:

14. The Council finds that Ordinance No. 93-91, designating the Interim Urban Growth Areas is a development regulation pursuant to RCW 36.70A.110(4). The Council further finds that the designation of the Interim Urban Growth Areas supplements and further implements existing development regulations of the County.

15. The Council finds that in anticipation of enactment of the Growth Management Act and in furtherance of its goals, the County enacted numerous interim development regulations to curb sprawl and manage development while planning could occur. Since 1990, the following interim development regulations have been adopted and remain in place:

• General-Rural Zone Created—Ordinance No. 93-84S2.

17. The Council finds that the enactment of Ordinance no. 93-84S2 on August 31, 1993, also has a direct effect outside the Interim Urban Growth Areas. This interim development regulation establishes the General Rural Zone and sets 10 acres as the minimum lot size for new development.

Based on our review of the ordinance, it is clear that the Pierce County Council intended to leave in effect the general-rural zone during the interim period as an integral part of its IUGA ordinance. The general-rural zone permits mobile home developments not to exceed 10 units per acre. Therefore, Fir Grove’s proposed development was in compliance with the development regulations in effect at the time of its development application.

Accordingly, we reverse and remand to the superior court with the directions that it reinstate the hearing examiner’s ruling.

Coleman, J., concurs.

1 Pierce County Ordinance No. 93-84S2.

2 Pierce County Ordinance No. 93-91S.

3 RCW 36.70A.

4 RCW 36.70C.130.

5 See Honcoop v. State, 111 Wn.2d 182, 193, 759 P.2d 1188 (1988) (the Supreme Court refused to consider the propriety of a Court of Appeals’ holding where respondent failed to assign error to the holding).

6 King County v. Central Puget Sound Growth Management Hearings Bd., 138 Wn.2d 161, 167, 979 P.2d 374 (1999).

7 Id. at 167 (quoting RCW 36.70A.140).

8 RCW 36.70A.280(l)(a).

9 RCW 36.700.030(1).

10 RCW 36.70C.030(1)(a)(ii). See also King County v. Central Puget Sound Growth Management Hearings Bd., 138 Wn.2d at 182 n.9 (rejecting “Friends’ additional contention that the Land Use Petition Act (LUPA) requires the court to independently review whether an underlying urban designation in a comprehensive plan is consistent with the GMA.”).

11 RCW 36.70A.290(2).

12 RCW 36.70C.030.

13 See King County v. Central Puget Sound Growth Management Hearings Bd., 138 Wn.2d at 182 n.9 (“The lawfulness of a county’s UGA designation may not be reviewed in a LUPA petition because the challenged county action is subject to review by the Board.”). See also RCW 36.70C.030(l)(a)(ii).

14 Association of Rural Residents v. Kitsap County, 95 Wn. App. 383, 974 P.2d 863, review granted, 138 Wn.2d 1008 (1999).

15 Id. at 395.

16 Id. at 395-96.

17 RCW 36.700.130(1).

18 See Exhibit “B” to Ordinance No. 93-91S, finding of fact 14.