308 P.3d 745
Wash. Ct. App.2013Background
- Ellison Thorp proposed amendments (10-12 and 10-13) to Kittitas County’s comprehensive plan and zoning to develop a 29+ acre Thorp Travel Center (fuel station, retail, restaurant, 50-room hotel, RV park, extensive parking and infrastructure).
- County adopted both amendments during the 2010 amendment cycle; County issued a SEPA DNS (determination of nonsignificance) that was not administratively appealed to county commissioners.
- Futurewise appealed the amendments to the Eastern Washington Growth Management Hearings Board, which invalidated amendments 10-12 (LAMIRD expansion) and 10-13 (rezone from Rural/Agriculture study overlay to Commercial/Commercial Highway) for noncompliance with the GMA and SEPA.
- Superior court dissolved the hearings board decision; Futurewise appealed to the Court of Appeals (this opinion reverses the superior court).
- Central legal questions: (1) whether the hearings board had jurisdiction to review the site‑specific rezone (LUPA v. GMA jurisdictional divide), (2) whether Futurewise had to exhaust a county-level SEPA appeal, and (3) whether the hearings board’s substantive GMA findings (non-isolated, not small-scale, inconsistency with Agriculture Study Overlay) were supported.
Issues
| Issue | Futurewise's Argument | County/Ellison's Argument | Held |
|---|---|---|---|
| Jurisdiction: Was the site‑specific rezone reviewable by the GMA hearings board or exclusively by superior court under LUPA? | The rezone implemented a comprehensive plan amendment and is properly before the hearings board. | The rezone is a site‑specific project permit approval subject to superior court LUPA jurisdiction. | Reversed superior court: hearings board had jurisdiction because the rezone implemented a comprehensive plan amendment and was not “authorized by a then‑existing comprehensive plan.” |
| SEPA exhaustion: Must Futurewise appeal the County’s DNS to county commissioners before hearings board review? | No; where the action concerns comprehensive plan/development regulation amendments, hearings board review is available and county‑level appeal to commissioners is not required or available. | Futurewise failed to exhaust by not appealing the DNS to county commissioners. | Held for Futurewise: exhaustion to commissioners not required because the DNS related to plan/regulation amendments and county code provides direct hearings board review. |
| Amendment 10‑12 (LAMIRD expansion): Is the proposed Travel Center an "isolated" and "small‑scale" Type 3 LAMIRD use? | The Travel Center is not isolated or small‑scale given size, intensity, employees, 24‑hour operations, and infrastructure needs; it thus violates GMA/LAMIRD limits. | The project fits LAMIRD allowances and county discretion; hearings board erred. | Held for Futurewise: substantial evidence supports hearings board that the development is not isolated and not small‑scale; amendment 10‑12 is noncompliant. |
| Amendment 10‑13 (rezone/Agriculture Study Overlay): Is the rezone inconsistent with the existing Agriculture Study Overlay? | The overlay imposed interim limits to preclude commercial development until an agricultural significance study; the rezone to Commercial Highway conflicted with that overlay. | The rezone was valid; county discretion and intent make it consistent. | Held for Futurewise: hearings board correctly found inconsistency with the interim Agriculture Study Overlay; amendment 10‑13 noncompliant. |
Key Cases Cited
- Feil v. Eastern Wash. Growth Mgmt. Hearings Bd., 172 Wn.2d 367 (standard of review under APA for hearings board decisions)
- Kittitas County v. Eastern Wash. Growth Mgmt. Hearings Bd., 172 Wn.2d 144 (jurisdictional and APA standards)
- Woods v. Kittitas County, 162 Wn.2d 597 (site‑specific decisions v. comprehensive plan/development regulation distinction)
- King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wn.2d 543 (deference to hearings board GMA interpretation)
- City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wn.2d 38 (appellate review role and standards)
- Quadrant Corp. v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 154 Wn.2d 224 (county discretion under GMA)
- Wenatchee Sportsmen Ass’n v. Chelan County, 141 Wn.2d 169 (comprehensive plan vs. rezone authorization question)
- Citizens for Mount Vernon v. City of Mount Vernon, 133 Wn.2d 861 (development regulations must generally conform to comprehensive plan)