Feil v. Eastern Washington Growth Management Hearings Board

153 Wash. App. 394
CourtCourt of Appeals of Washington
DecidedDecember 3, 2009
DocketNo. 28248-1-III
StatusPublished
Cited by3 cases

This text of 153 Wash. App. 394 (Feil v. Eastern Washington Growth Management Hearings Board) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Feil v. Eastern Washington Growth Management Hearings Board, 153 Wash. App. 394 (Wash. Ct. App. 2009).

Opinion

¶1 This is a land use case. Douglas County approved something called a “recreational overlay district” to accommodate an extension of a bicycle/pedestrian trail. The recreational district will “overlay” and border agricultural land used for orchards. Area orchardists objected to the overlay district and raised a number of legal and factual challenges to the county commissioners’ decision to approve [400]*400the overlay. We conclude that the recreational overlay district is not an amendment to the county’s comprehensive plan and that, even if it was, any challenge to the comprehensive plan comes too late. We conclude that the recreational overlay district does not run afoul of state statutes that encourage the preservation of agricultural land. And we conclude that the decision to permit the overlay is amply supported by the findings of the commissioners, including those they adopted from the hearing examiner. We therefore affirm the decision of the superior court that dismissed the challenges of the orchardists to the recreational overlay district.

Sweeney, J.

[400]*400FACTS

¶2 The Washington State Parks and Recreation Commission (State Parks) applied to Douglas County (County) for a permit to build a five-mile, nonmotorized recreation trail along the Columbia River in the Baker Flats area of East Wenatchee, Washington. The proposed trail will link with a current trail system and extend a bicycle and pedestrian path. All of the trail will be built on public property, including a right-of-way owned by the Washington State Department of Transportation and property owned by the Chelan County Public Utility District No. 1. The Greater East Wenatchee Comprehensive Plan designates the property over which the trail will run as “Tourist Recreation Commercial,” “Residential Low,” “Commercial Agriculture 5 acres,” and “Commercial Agriculture 10 acres.” Clerk’s Papers (CP) at 1-6626, 1-6658. Trail systems are permitted in the tourist recreation district and are also allowed in districts zoned residential low, commercial agriculture 5, and commercial agriculture 10 under a recreational overlay district permit.

¶3 Orchardists Jack and Delaphine Feil and John and Wanda Tontz lease portions of the Baker Flats public properties that abut their orchards, and they grow fruit trees on those public lands. The proposed trail, including a 10-foot-wide asphalt top plus gravel edging, and 60 to 100 foot buffers would require that nearly 24 acres of mature fruit trees be removed.

[401]*401¶4 In 2004, a County hearing examiner concluded that the trail was permitted in all zoning districts as a “transportation facility” and issued a shoreline development permit to State Parks. The Feils, the Tontzes, and the Right to Farm Association of Baker Flats (we will refer to them as the Orchardists) appealed the decision to issue the permit to the shoreline hearings board. C.F. McNeal, Betty McNeal, and others filed a petition under the Land Use Petition Act (LUPA), chapter 36.70C RCW, in superior court and challenged the decision to issue the permit. In March 2005, the shoreline hearings board approved the trail permit subject to conditions. The Orchardists then petitioned the superior court for further review. The court affirmed the shoreline hearings board’s decision. The Orchardists appealed that decision to this court but later abandoned that appeal. The superior court on the LUPA petition disagreed with the examiner’s conclusion that the trail was a transportation facility (that would be permitted in any zone) and reversed. The court remanded with directions to State Parks to apply for permits required by the County code.

¶5 In March 2006, State Parks then applied for a recreational overlay district permit. A recreational overlay district does not change the underlying zoning. It allows recreational activities in other zoning classifications. In November 2006, the County hearing examiner held a hearing, granted the recreational overlay designation, and issued a site plan development permit for the trail. The hearing examiner conditioned approval of the permit on a number of conditions. The examiner required that State Parks provide (1) an agreement with beekeepers to mitigate contact between trail users and bees, (2) a trail design that will minimize “frost pockets” affecting the abutting orchards, and (3) additional steps to ensure that trail users are protected from agricultural activities (such as pesticide application) and that the orchards are protected from the trail users.

¶6 In November 2006, the Orchardists petitioned under LUPA to the superior court and challenged the hearing [402]*402examiner’s authority to issue a recreational overlay permit. They also petitioned for review with the Eastern Washington Growth Management Hearings Board (Hearings Board) and argued that the hearing examiner’s decision to grant the overlay violated the Growth Management Act (GMA), chapter 36.70A RCW. In February 2007, the Hearings Board concluded that it had no jurisdiction to review this permit, since it was a site-specific project, and dismissed the Or-chardists’ GMA petition. The Orchardists appealed that decision to the superior court; the court affirmed the dismissal of the GMA petition in July 2007. The court also concluded that the recreational overlay designation amounted to a rezone and therefore the County hearing examiner did not have authority to grant the permit because the rezone required legislative action by the County commissioners. The court then remanded for further proceedings.

f 7 The County commissioners adopted the findings and conclusions of the hearing examiner, added some of their own, and approved the overlay district. The Orchardists again petitioned for relief under LUPA in the superior court; and they again petitioned for review by the Hearings Board. Once again, the Hearings Board ruled that it did not have jurisdiction to review a site-specific rezone and dismissed the petition. The Orchardists appealed this ruling to the superior court. The superior court affirmed the County commissioners’ decision to issue the permit and dismissed the LUPA petition. The following month, the superior court dismissed the petition for review of the Hearings Board’s decision.

¶8 Both decisions were appealed directly to the Washington State Supreme Court. That court consolidated the appeals and transferred them here for our review.

DISCUSSION

Jurisdiction op the Hearings Board To Pass on the Commissioners’ Decision To Issue a Recreational Overlay Permit

¶9 The Orchardists first contend that the Hearings Board erred, as did the trial court, when it concluded that it [403]*403did not have authority to hear this petition because it was “site specific.” They argue that the effect of this recreational overlay designation is to convert land that had been zoned agricultural into something other than agricultural in violation of the comprehensive plan and state law requiring, or at least encouraging, the preservation of agricultural land. The Orchardists agree that generally challenges to a comprehensive plan or development regulations must be made within 60 days of the decision by the Hearings Board. But here, they argue, there was no way to anticipate, under the comprehensive plan as adopted and approved, that this bicycle and pedestrian path would be approved in an agricultural zone.

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Related

Feil v. Eastern Washington Growth Management Hearings Board
172 Wash. 2d 367 (Washington Supreme Court, 2011)
Feil v. E. WASHINGTON GROWTH MGMT. HEARINGS
259 P.3d 227 (Washington Supreme Court, 2011)
Feil v. E. WASH. GROWTH MGMT. HEARINGS BD.
220 P.3d 1248 (Court of Appeals of Washington, 2009)

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Bluebook (online)
153 Wash. App. 394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/feil-v-eastern-washington-growth-management-hearings-board-washctapp-2009.