FILED AUG 30, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
EDWARD COYNE AND WEST ) RICHLAND CITIZENS FOR SMART ) No. 33653-1-111 GROWTH, ) ) Appellants, ) ) V. ) UNPUBLISHED OPINION ) GROWTH MANAGEMENT HEARINGS ) BOARD, CITY OF WEST RICHLAND, ) AND CHARLES GRIGG, ) ) Respondents. )
KORSMO, J. -Edward Coyne and the West Richland Citizens for Smart Growth
(Coyne) appeal from a decision of the Growth Management Hearings Board (GMHB)
rejecting their challenge to an amendment to the West Richland comprehensive plan. We
conclude that a city does not "consider" an application merely by placing it on a docket, ;
reject the remaining arguments, and affirm. I FACTS I This controversy has its genesis in an effort to rezone a lot from low-density I residential to commercial in order to develop a hardware store. The property, referred to
here as lot 29, sits on Bombing Range Road between Austin Drive and W. Van Giesen I Street in West Richland. Mr. Charles Grigg purchased the undeveloped property and I began efforts to change the zoning. II
I No. 33653-1-III Coyne, et al. v. Growth Mgmt. Hr 'g Bd, et al.
Mr. Grigg submitted his application prior to January 31, 2012, and requested that
West Richland amend its comprehensive plan to accommodate the change. 1 The West
Richland City Council (City Council) first addressed the proposed amendments on
November 6, 2012. At that time, the City Council approved the comprehensive plan list
and forwarded it to the planning commission. This established the "2012 Docket for
Comprehensive Plan Amendments." Clerk's Papers (CP) at 319. At this time, Mr.
Grigg's property was the only property in the vicinity of Bombing Range Road and Van
Giesen. However, one of the council members clarified that "the Planning Commission
is not limited to the property being proposed for changes in the private applications, but
can look at adjacent properties and make proposals on those." Id. ·
In January 2013, the mayor of West Richland invited property owners in the area
of Bombing Range and Van Giesen to a meeting to discuss the potential comprehensive
plan changes. On February 5, the City Council held a workshop, and the planning
director updated the City Council on the 2012 comprehensive plan docket. At the end of
that meeting, the City Council's consensus was to seek the recommendation of the
Planning Commission concerning the proposed amendments.
Following this workshop, the City purchased lot 28, the lot immediately adjacent
to lot 29. The City recorded its deed on February 25, 2013. Around the same time, Mr.
1 One other property owner also sought a comprehensive plan change for property in a different part of West Richland. That property is not at issue in this case.
2 No. 33653-1-III Coyne, et al. v. Growth Mgmt. Hr 'g Bd, et al.
Grigg purchased another area property, lot 1. Lot 1 is directly across Austin Drive from
lots 28 and 29. The Planning Commission held a workshop on March 14, 2013, where it
added the two new properties to the 2012 comprehensive plan proposals docket. 2 CP at
292.
With these two additional properties now part of the docket, the Planning
Commission held a public meeting on April 11, 2013. Prior to this meeting, the City sent
out notices to all property owners within 600 feet of the affected parcels, arranged for a
notice of the meeting to be published in the Tri-City Herald, and posted notice on various
public buildings within the city. Public notice signs were also posted at the properties.
After hearing public comment at the April 11 meeting, the Planning Commission voted
against adopting the comprehensive plan changes as to lots 1, 28, and 29, but
recommended approval of some unrelated changes.
After the Planning Commission's negative recommendation, the City Council held
three workshops on the comprehensive plan recommendations. Ultimately, the Council
scheduled a public meeting to consider the comprehensive plan change proposals
(including lots 1, 28, and 29). The City scheduled the meeting for June 17, 2013, and
arranged for the newspaper to publish notice of the meeting. It also mailed notice to the
2 There is some suggestion in the record that the planning staff had been considering a wider area surrounding Mr. Grigg's original lot from the beginning. See CP at 292 ("At this point, any additional parcels which had been previously studied for consideration were no longer included as part of the proposed amendment.").
3 No. 33653-1-III Coyne, et al. v. Growth Mgmt. Hr 'g Bd, et al.
adjacent property owners and anyone who had previously spoken with regard to the 2012
comprehensive plan amendments docket. At that meeting, the City Council heard public
comment on the proposed changes.
At a subsequent meeting, the City Council voted to approve the amendments to the
comprehensive plan, adopting Ordinance No. 25-13. The ordinance changed the
designation on the plan map for the three properties from residential to commercial.
Contemporaneously with the change to the comprehensive plan, the City adopted
Ordinance No. 26-13, which rezoned the properties from low-density residential to
commercial general.
Mr. Coyne timely appealed the decision of the City Council to the GMHB,
asserting a number of violations of the Growth Management Act, ch. 36.70A RCW
(GMA). Before the GMHB, appellants appeared prose and raised fourteen issues, all of
which the City opposed. 3 Some of the issues did not provide specific reference to the
GMA. At oral argument, the board members repeatedly asked for clarification on what
specific provisions of the GMA the city allegedly violated. When the GMHB also
questioned how the zoning change to commercial general was inconsistent with the
comprehensive plan, Ms. Hauer responded that it was, in fact, consistent, but that other
designations would also have been consistent. CP at 850-852.
3 Mr. Coyne did not personally argue before the GMHB; Ms. Leslie Hauer spoke on behalf of Mr. Coyne and the organization.
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Ultimately, the GMHB rejected all of the challenges. It found the challengers had
not demonstrated an actual violation of the GMA and thus not met their burden of proof:
"The Board finds and concludes Petitioners failed to satisfy their burden of proof to
demonstrate that [the ordinances] were clearly erroneous in view of the entire record
before the Board and in light of the goals and requirements of the Growth Management
Act." CP at 733. In issuing its decision, however, the GMHB did not make formal
findings of fact or conclusions oflaw. Rather, it issued a "Final Decision and Order" in
which it analyzed the issues and made conclusions.
Represented by counsel, Mr. Coyne petitioned the Benton County Superior Court
for judicial review of the GMHB decision. Both parties requested attorney fees pursuant
to RCW 4.84.350. The superior court ultimately dismissed the petition. Our record does
not indicate whether the trial court ruled on the respective attorney fee requests.
Still represented by counsel, Mr. Coyne appealed to this court. A panel heard oral
argument. Subsequently, we directed the parties to identify portions of the record that
answered the court's questions concerning the content of the public notice given prior to
the June 17, 2013 meeting.
ANALYSIS
This appeal presents several procedural challenges to the comprehensive plan
amendment process, which we address in the following order: ( 1) the necessity of
findings by the GMHB, (2) the addition of the two other lots to the original docket notice
5 No. 33653-1-III Coyne, et al. v. Growth Mgmt. Hr 'g Bd, et al.
for lot 29, (3) the adequacy of public notice concerning the comprehensive plan change,
(4) whether the amendments constituted illegal spot zoning, and (5) whether the
amendments were consistent with the comprehensive plan. 4
This court reviews a GMHB decision under the Administrative Procedure Act, ch.
34.05 RCW (APA). Feil v. E. Wash. Growth Mgmt. Hr'gs Bd., 172 Wn.2d 367,376,259
P.3d 227 (2011). This court applies APA standards directly to the record before the
GMHB, performing the same function as the superior court. City of Redmond v. Cent.
Puget Sound Growth Mgmt. Hr'gs Bd., 136 Wn.2d 38, 45,959 P.2d 1091 (1998). The
party challenging the decision bears the burden of proving it invalid. RCW
34.05.570(l)(a). A decision is invalid ifit suffers from at least one of nine enumerated
infirmities. RCW 34.05.570(3).
Findings
Mr. Coyne argues that the GMHB was required-and failed-to make formal
findings of fact and conclusions of law. The "Final Decision and Order" are sufficient to
understand the ruling of the GMHB.
4 Both sides also seek attorney fees under the "Equal Access to Justice Act," RCW 4.84.350. However, that act does not apply to GMHB actions. Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd., 176 Wn. App. 555, 584, 309 P.3d 673 (2013).
6 No. 33653-1-III Coyne, et al. v. Growth Mgmt. Hr 'g Bd, et al.
Mr. Coyne points to no provision of the GMA mandating a specific form in which
the GMHB must report its rulings. 5 He relies on our decision in Citizens for Responsible
and Organized Planning v. Chelan County, 105 Wn. App. 753, 21 P.3d 304 (2001).
There we reversed a decision by the Chelan County Board of Commissioners that failed
to address the primary issue argued by the parties. Id. at 755. We remanded for the
county commissioners to make appropriate findings. Id. Without a determination of
what facts the commissioners had found, this court could not apply the law to the findings
to resolve the case. Id. at 762.
While we can envision cases where the GMHB decision does not adequately
explain matters to permit appellate review, this is not one of those cases. There is no
need for additional findings of fact because the GMHB essentially found that Mr. Coyne
did not meet his burden. Before the GMHB, the burden is on the petitioner to
demonstrate the City violated some provision of the GMA by its action; the GMHB
5 The GMA does not require formal findings. The relevant statutes are RCW 36.70A.290 and 36.70A.300, but neither of them require formal findings of fact. RCW 36.70A.300 requires that the board "issue a final order ... based exclusively on whether or not a state agency, county, or city is in compliance with the requirements of this chapter." It does not otherwise specify what form the order must take. Further, RCW 36.70A.290 indicates only that the "board shall render written decisions articulating the basis for its holdings," and precludes the board from "issu[ing] advisory opinions." The decision in King County v. Central Puget Sound Growth Management Hearings Bd., 142 Wn.2d 543, 14 P.3d 133 (2000), appears to assume that the board makes findings of fact and conclusions oflaw, but it does not require so specifically. Id. at 553 (stating the court reviews legal conclusion de novo, and findings of fact for substantial evidence).
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presumes the City's conduct is valid. RCW 36.70A.320(1). Perhaps to help the
petitioners, who appeared pro se, the board members repeatedly asked during oral
argument for them to be very precise about what specific provisions of the GMA the City
violated, explaining that the GMHB only has jurisdiction to review violations of the
GMA itself. Ultimately, the GMHB found the petitioners did not adequately point to
specific violations of the GMA. Thus, the GMHB did not need to resolve disputed facts
for its ultimate disposition. It merely noted that the petitioners failed to meet their
burden: "[T]he Board finds and concludes Petitioners failed to satisfy their burden of
proof to demonstrate that [the ordinances] were clearly erroneous in view of the entire
record before the Board and in light of the goals and requirements of the Growth
Management Act." CP at 733; see also CP at 734, 737, 740 (making essentially the same
conclusion on each of the four main issues).
The decision was sufficient. It adequately explained the ruling. No more was
required of it.
Docketing of Change Requests
Mr. Coyne also argues that West Richland violated the GMA by considering
comprehensive plan changes more than once during the year due to the fact that it added
lots 1 and 28 to the list under consideration after the City Council approved the original
docket. We conclude that adding items to an agenda over the course of a year does not
amount to "consideration" of the item on multiple occasions.
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This issue presents a question of pure statutory interpretation, a matter this court
reviews de novo. State v. Bradshaw, 152 Wn.2d 528, 531, 98 P.3d 1190 (2004). A court
begins by looking at the plain meaning of the statute as expressed through the words
themselves. Tesoro Ref & Mktg. Co. v. Dep 't of Revenue, 164 Wn.2d 310, 317, 190 P .3d
28 (2008). If the statute's meaning is plain on its face, the Court applies the plain
meaning. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007). Only if the
language is ambiguous does the court look to aids of construction, such as legislative
history. Id. at 110-111. A provision is ambiguous if it is reasonably subject to multiple
interpretations. State v. Engel, 166 Wn.2d 572, 579, 210 P.3d 1007 (2009). While this
court reviews the GMA de novo, it gives substantial weight to the growth board's
interpretation. 6 Manke Lumber Co., Inc. v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd.,
. 113 Wn. App. 615, 622, 53 P.3d 1011 (2002). As relevant to this issue, the order is
invalid if the GMHB "erroneously interpreted or applied the law." RCW 34.05.570(3)(d).
The relevant statute is RCW 36. 70A.130(2):
Each county and city shall establish and broadly disseminate to the public a public participation program consistent with RCW 36.70A.035 and 36.70A.140 that identifies procedures and schedules whereby updates, proposed amendments, or revisions of the comprehensive plan are considered by the governing body of the county or city no more frequently
6Here, the GMHB did not analyze this section of the GMA. Therefore, there is nothing on which to give deference.
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than once every year .. .. Amendments may be considered more frequently than once per year under the following circumstances.
(Emphasis added.)
The issue hinges on what the legislature meant by the language "considered by the
governing body." Id. In this case, "governing body" must refer to the City Council
because only the Council can approve or reject amendments to the comprehensive plan.
However, what the legislature meant by the word "consider" is not specifically known,
and the statute includes no definition. Where a word is undefined, courts give the word its
ordinary meaning. Lake v. Woodcreek Homeowners Ass 'n, 169 Wn.2d 516, 528, 243 P.3d
1283 (2010). To determine a word's ordinary meaning the court may consult a dictionary.
Id. As relevant, the verb "consider" is defined as: "to give thought to with a view of ...
adopting." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 483 (1993). With this
definition, the meaning of the statute becomes plain: the City Council may not consider
adopting changes to the comprehensive plan more than once a year.
Using this understanding of "consider," the issue is easily resolved. The City
Council's first involvement with the rezone occurred in November 2011, when it held a
public meeting approving the "Comprehensive Plan Amendment List," which established
the docket, and then forwarded it to the Planning Commission for review. At this time, the
two additional properties were not included. A series of "workshops" followed this
meeting, some of which involved the City Council. At all but one of these workshops, the
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additional properties had already been added to the agenda. At the first workshop, where
the properties had not yet been added, the Planning Director merely updated the City
Council on the progress of the proposed amendments. Finally, on June 17, 2013, the City
Council held a public meeting to consider whether to adopt the proposed changes to the
comprehensive plan. This is the only time the City Council considered the amendments for
adoption, and it included the two additional properties. Mr. Coyne has pointed to no other
meetings where the City Council considered adopting any other comprehensive plan
amendments within one year of the June 17th meeting. Therefore, the City did not violate
RCW 36.70A.130(2) when it amended the docket prior to formal consideration of the
changes to the comprehensive plan.
Mr. Coyne argues that after the November 2012 meeting, the docket was "set in
stone" and could not be changed. This argument lacks any support in the statutory
language. The only way the argument could prevail is if the Council's approval and
establishment of the amended docket constituted actual consideration of the amendments
themselves. Such an interpretation contradicts the plain meaning of "consider" discussed
above. The City Council was not formally considering the amendments for approval at the
November meeting. Rather, the council was merely forwarding them through the
appropriate process. 7
7 Other provisions clarify that docketing is distinct from considering. RCW 36.70A.470 prohibits cities and counties from using project planning procedures to make
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Mr. Coyne also argues that the City violated the OMA by not following its own
procedures, which it adopted pursuant to the OMA. This argument also fails. While the
GMA requires a municipality to adopt some sort of procedures for amending the
comprehensive plan, it does not always specify what is required. See RCW 36.70A.035
(discussing "notice procedures that are reasonably calculated to provide notice to
property owners"); RCW 36.70A.130(2)(a) (requiring the municipality to "establish and
broadly disseminate to the public a public participation program"); RCW 36.70A.140
(requiring procedures for "early and continuous public participation in the development
and amendment of comprehensive land use plans"). Mr. Coyne, however, does not argue
that the adopted procedures are insufficient, but rather that the City did not follow the
adopted procedures. CP at 892 ("[Board member:] Is that correct: The procedures are
okay, but they didn't follow them? Ms. Hauer: Yes, sir.").
On this issue, the municipal code (WRMC) is not clear. Mr. Coyne reads two
provisions of the WRMC to require that the City receive internal proposals for
comprehensive plan or land use decisions. It requires that the county include procedures for suggested plan amendments, and that those amendments be "docketed and considered." RCW 36.70A.470(2). It then defines docketing: "docketing refers to compiling and maintaining a list of suggested changes to the comprehensive plan or development regulations in a manner that will ensure such suggested changes will be considered by the county or city." RCW 36.70A.470(4) (emphasis added). This definition distinguishes docketing from considering. The county or city "consider[ s]" the changes at some point after it "docket[s]" them. Id. Therefore, when the City docketed the comprehensive plan proposals, it did not consider them for the purposes of RCW 36.70A.130(2)(a).
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amendment to the comprehensive plan by the January 31 deadline, treating them the same
as private proposals. However, those provisions do not mandate that conclusion. First,
WRMC 14.09.03 outlines the submission deadline for amendments:
Proposed amendments to the comprehensive plan or land use plan map may be submitted at any time. . . . Applications received ... will be considered during the ... annual review period with the last working day in January being the deadline for submittal for each annual review period.
A second provision states who can propose amendments: "Amendments may be initiated
by any interested person, including applicants, citizens, and staff of other agencies."
WRMC 14.09.060 (emphasis added). These provisions may suggest the outcome that
Mr. Coyne desires, namely that staff proposals must be treated the same as private
proposals and thus submitted by January 31. However, the provisions do not require that
reading. Nothing in WRMC 14.09.03 defines "Proposed Amendments" to include the
planning director's suggested expansion of a private proposal to include a greater area.
Such an expansion could reasonably fall outside the definition of a "Proposed
Amendment" under the code.
The City's practice appears to be the opposite of Mr. Coyne's reading. When the
City Council was approving the docket in November 2012, one of the council members
clarified that "the Planning Commission is not limited to the property being proposed for
changes in the private applications, but can look at adjacent properties and make
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proposals on those." CP at 319. Therefore, while Mr. Coyne's reading is possible, it is
not necessary, and he has failed to demonstrate a violation of the WRMC.
Finally, even if Mr. Coyne had demonstrated a violation of the WRMC, it would
not necessarily correlate with a violation of the GMA. Generally, a minor violation of
the enacted procedures does not amount to a violation of the GMA. RCW 36.70A.140
("Errors in exact compliance with the established program and procedures shall not
render the comprehensive land use plan or development regulations invalid if the spirit of
the program and procedures is observed."). In other words, municipalities need not
precisely follow their own provisions so long as the spirit of the GMA is followed,
namely public notice and involvement.
The docketing of lot 29 in November did not amount to a "consideration" of the
merits of the rezoning and comprehensive plan amendment requests.
Notice of Comprehensive Plan Amendments
Mr. Coyne next argues that West Richland did not provide adequate public notice
that it was considering amendments governing three lots on Bombing Range Road
instead of one. The GMHB concluded, as do we, that appellants have not demonstrated
any error.
A county or city planning under the GMA must establish a "public participation
program identifying procedures providing for early and continuous public participation in
the development and amendment of comprehensive land use plans." RCW 36.70A.140.
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The procedures must provide for broad dissemination of proposals, opportunity for
written comments, public meetings after effective notice, open discussion,
communication programs, information services, and consideration of and response to
public comments. Id. However, inexact compliance with the established public
participation program and procedures does not invalidate a comprehensive plan "if the
spirit of the program and procedures is observed." Id. This court gives deference to the
GMHB's "interpretation of the statutes it administers," but the standard of review is de
novo. Manke, 113 Wn. App. at 622.
Also relevant are two related provisions of the GMA. RCW 36.70A.130(2)
requires the city to create a public participation program: "Each county and city shall
establish and broadly disseminate to the public a public participation program." RCW
36.70A.130(2)(a). RCW 36.70A.035 mandates public participation requirements that are
"reasonably calculated to provide notice to property owners and other affected and
interested individuals." RCW 36.70A.035(1). It then lists specific examples of
"reasonable notice provisions," including "Publishing notice in a newspaper" and
"Notifying public or private groups with known interest in a certain proposal." Id.
Mr. Coyne argues that the notice and public participation here were insufficient
because properties were added during the process. On this issue, the GMHB ruled that
appellants had not proven their case and indicated that "RCW 36.70A.035 does not
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prescribe a particular type of notice that is required at the earlier stages of process for
amending a comprehensive plan." CP at 732.
Mr. Coyne does not point to a violation of any of these provisions. The City
arranged for notice to appear in the local newspaper prior to the Planning Commission
meeting on April 11, 2013, and the City Council public meeting on June 17, 2013. 8
8 The West Richland code describes comprehensive plan changes, development regulations, zoning ordinance text amendments, and area-wide zoning map amendments as "Type VII" actions. WRMC 14.0l.030(8)(7). For Type VII actions, WRMC 14.03.030(8)(4) requires that the City post notices "as described in subsection A of this section on the official city website and notify the news media." (Emphasis added.) Subsection A requires as follows: A. Content of Notice of Public Hearing for All Applications. The notice of a public hearing required by this chapter shall contain: 1. The name and address of the applicant or the applicant's representative; 2. Description of the subject property reasonably sufficient to inform the public of its location, including but not limited to a vicinity location or written description, a map or postal address, and a subdivision lot and block designation, but need not include a legal description; 3. The date, time and place of the hearing; 4. The nature of the proposed use or development; 5. A statement that all interested persons may appear and provide testimony; 6. The sections of the code that are pertinent to the hearing procedure; 7. A statement explaining when information may be examined, and when and how written comments addressing findings required for a decision by the hearing body may be admitted; 8. The name of a city representative to contact and the telephone number where additional information may be obtained; 9. A statement that a copy of the application materials are available for inspection; and 10. A statement explaining that a copy of the staff report will be available for inspection prior to the hearing. WRMC 14.03.030(A) (emphasis added).
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Further, the planning staff mailed letters to property owners adjacent to the affected
properties. Notices were posted on the properties 9 that included copies of the
comprehensive plan map. All of these actions gave interested individuals the opportunity
to come to the public meetings and participate in the discussion. Since the City gave
three different types of notice from the examples listed in RCW 36.70A.035(1), the
notice was sufficient.
Mr. Coyne specifically points to RCW 36.70A.035(2) as requiring a new review
and comment period. Mr. Coyne is correct that the provision requires additional
From these provisions it appears the formal notice (including the property description) need only appear on the website and news, not necessarily on any mailings. However, a separate chapter discusses comprehensive plan changes more thoroughly, and it also discusses notice: A notice of public hearing(s) on proposed amendments to the comprehensive plan shall be sent to the news media and posted on the city's official website. For site-specific land use map amendment proposals (i.e., sites involving four or fewer parcels, or sites consisting of multiple contiguous parcels under a single ownership), the notice ofpublic hearing shall be mailed to all property owners within 600 feet of the subject site. Notices shall be both mailed and posted at least seven days prior to the scheduled public hearing. WRMC 14.09.100 (emphasis added). It is unclear whether the "notice of the public hearing" required to be mailed under 14. 09 .100 must contain the content of 14.03.030(A). This particular decision involved only three properties, so it is a "site specific land use map amendment proposal," requiring mailed notice to property owners. But the notice referred to in 14.03.030 could be different from that in 14.09.100. 9 The City and Mr. Coyne each point to the same part of the record and draw opposite conclusions as to whether or not all notice was posted on all three lots or simply the first one. The City's evidence suggested that notices were posted on all three lots.
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comment and review in certain situations, but is incorrect that this situation required
additional comment and review. The statute states:
[I]f the legislative body for a county or city chooses to consider a change to an amendment to a comprehensive plan or development regulation, and the change is proposed after the opportunity for review and comment has passed under the county's or city's procedures, an opportunity for review and comment on the proposed change shall be provided before the local legislative body votes on the proposed change.
RCW 36.70A.035(2)(a) (emphasis added). Here, the City did not choose to consider the
change "after the opportunity for review and comment." RCW 36.70A.035(2)(a). The
additional properties were added to the docket in March 2013. Subsequently, the City
provided two public meetings where the public could participate and give feedback on
the proposed amendments: one before the planning commission on April 11, 2013, and
one before the City Council on June 17, 2013. Both of the meetings occurred after the
planning staff added the additional properties to the proposal. The City did not violate
RCW 36.70A.035(2).
The record reflects that West Richland gave multiple types of notice prior to
considering the proposal. The GMHB correctly concluded that Mr. Coyne did not
establish that the City failed to comply with the GMA.
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Spot Zoning
Mr. Coyne also contends the rezoning constituted illegal "spot zoning." Because
the OMHB did not have jurisdiction over this allegation of spot zoning, it properly found
that there was no violation of the OMA.
Spot zoning occurs when there is a "zoning action by which a smaller area is
singled out of a larger area or district and specially zoned for a use classification totally
different from and inconsistent with the classification of surrounding land." Smith v.
Skagit County, 75 Wn.2d 715,743,453 P.2d 832 (1969). No provision of the OMA
expressly gives the OMHB authority to consider claims of spot zoning. 10 Most land use
regulation challenges are left to the Land Use Petition Act (LUPA) process. See RCW
36.70C.030(1) (stating that LUPA "shall be the exclusive means of judicial review of
land use decisions.")
The jurisdiction of the OMHB is limited to violations of the OMA itself. "A
OMHB ... has very limited jurisdiction." Somers v. Snohomish County, 105 Wn. App.
937, 21 P.3d 1165 (2001). "The growth management hearings board shall hear and
determine only those petitions alleging either: (a) that ... a state agency, county, or city
10 There is one instance where the OMHB could address spot zoning. Any development regulation that is in conflict with a comprehensive plan also violates the OMA. See RCW 36.70A.040(3)(d); Woods v. Kittitas County, 162 Wn.2d 597, 613, 174 P.3d 25 (2007) ("Such regulations must be consistent with the comprehensive plan."). Thus, the OMHB has some jurisdiction in the case of alleged spot zoning when the zoning regulation is inconsistent with the comprehensive plan.
19 No. 33653-1-III Coyne, et al. v. Growth Mgmt. Hr 'g Bd, et al.
planning under this chapter is not in compliance with the requirements of this chapter."
RCW 36.70A.280(1) (emphasis added). "Unless a petition alleges that a comprehensive
plan or a development regulation or amendments to either are not in compliance with the
requirements of the GMA, a GMHB does not have jurisdiction to hear the petition."
Wenatchee Sportsmen Assn. v. Chelan County, 141 Wn.2d 169, 178, 4 P.3d 123 (2000).
For this reason, Mr. Coyne's challenge fails. He does not point to any violation of the
GMA, nor did he prove that violation to the GMHB.
The jurisdiction of the GMHB is tightly controlled by statute. The GMHB does
not have jurisdiction when a challenge does not involve an alleged violation of the GMA.
RCW 36. 70A.280(1 ). Only if a site-specific rezone violates a specific provision of the
GMA does the GMHB have authority to hear the challenge. That did not occur here.
Consistency with Comprehensive Plan
The final argument is a contention that the amendments render the comprehensive
plan inconsistent. The challengers conceded this issue before the GMHB, but it also is
without merit.
The GMA requires a comprehensive plan be internally consistent. RCW
36.70A.070. 11 "This requirement means that differing parts of the comprehensive plan
'must fit together so that no one feature precludes the achievement of any other.'"
11 "The plan shall be an internally consistent document and all elements shall be consistent with the future land use map."
20 No. 33653-1-III Coyne, et al. v. Growth Mgmt. Hr 'g Bd, et al.
Brinnon Grp. v. Jefferson County, 159 Wn. App. 446,476,245 P.3d 789 (2011) (quoting
WAC 365-196-500). Further, all development regulations must be consistent and
implement the comprehensive plan. WAC 365-196-500. While a city or county must
conform its planning to the requirements of the GMA, it receives deference in its
weighing and balancing of various goals and planning policies. See RCW 36.70A.3201;
see also King County v. Cent. Puget Sound Growth Mgmt. Hr 'gs Bd., 142 Wn.2d 543,
561, 14 P.3d 133 (2000).
Here, Mr. Coyne argues the changes make the plan internally inconsistent because
they violate various goals of the comprehensive plan. He also argues that the zoning
change was improper. However, appellants conceded before the GMHB that zoning the
property commercial was consistent with the comprehensive plan. Board members asked
at oral argument how the proposals were inconsistent with the comprehensive plan: "So
is it Petitioner's contention that the zoning designation ... the commercial general zoning
designation is not consistent with the Comprehensive Plan; is that a contention or not?"
CP at 850-851. Ms. Hauer replied: "Commercial general could be consistent with the
Comprehensive Plan. Other designations could also be consistent and perhaps more
compatible with the neighborhood." CP at 851. An attempt was made to clarify the
answer: "So just to before we move on, I want to make sure I heard correctly, you're
saying that the commercial general zoning designation could be consistent with the plan;
you're not alleging that it is not consistent, right?" to which Ms. Hauer responded, "No.
21 No. 33653-1-III Coyne, et al. v. Growth Mgmt. Hr 'g Bd, et al.
However, since the specific of zoning wasn't discussed at Planning Commission, and as
near as we can tell wasn't discussed at council, we don't have any record to show that
that would have been the best choice, but yes, commercial general is one of several
designations that could be consistent." CP at 851-852 (emphasis added).
On its face, the concession only speaks to the city's zoning decision; however, it
logically extends to the purported internal inconsistency of the comprehensive plan as
well. The only relevant change to the comprehensive plan was relabeling the planning
map for these properties from residential to commercial. No other polices or goals were
changed. 12 If zoning these properties commercial general is not inconsistent with the
policies of the comprehensive plan, it is hard to imagine how changing the planning map
to reflect the change makes the comprehensive plan internally inconsistent.
Although this issue has logically been conceded, we will briefly address the
arguments raised. Mr. Coyne argues that three goals were violated by allowing
commercial development on these sites. These arguments are either undeveloped,
misread the goals, or fail to give deference to the City's interpretation. Ultimately, Mr.
Coyne fails to establish any internal inconsistency.
Mr. Coyne focuses on Goal 3, Policy 4, but he misreads it. Goal 3, Policy 4
requires that the City "Encourage the use of previously passed-over parcels within areas
12 There were some text amendments that are not relevant to Mr. Coyne's issues.
22 No. 33653-1-III Coyne, et al. v. Growth Mgmt. Hr 'g Bd, et al.
characterized by urban growth." CP at 369. However, this goal is not inconsistent with
the plan change involving these properties. As the planning staff noted, two of these
properties have not been developed since they were platted in the 1940s. Those
properties are "passed-over parcels." It is, therefore, logical that the City would want to
rethink the best use of these sites.
Mr. Coyne also argues inconsistency with two other goals. The first, Goal 5,
Policy 1, requires the City to "Maintain or improve the integrity and livability of
established neighborhoods." CP at 371. The second, Goal 4, Policy 1, requires the City
to "Provide adequate, well-located areas for public lands and facilities." CP at 370. Mr.
Coyne, however, does not articulate exactly how the first is violated by these changes and
actually misstates the second. Further, he does not demonstrate how this change does not
meet the goals listed by the staff and adopted by the City. In contrast, the City found
these changes to be consistent with four of its stated goals, including "Encourage a
walkable community by supporting small commercial nodes located within walking
distance of residential development." Ultimately, the City receives deference on its
balancing and weighing of the various goals and policies, and the City found the changes
consistent. See RCW 36.70A.3201; see also King County, 142 Wn.2d at 561. The
GMHB did not err in concluding that no violation of the GMA was established.
23 No. 33653-1-III Coyne, et al. v. Growth Mgmt. Hr 'g Bd, et al.
No violation of the GMA, nor any error by the GMHB, having been established,
we affirm.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
j
Pennell, J.