153 Wash. App. 394 | Wash. Ct. App. | 2009
¶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
¶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.
¶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
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
¶10 The County responds that this is not a rezone; that it is accommodated by the current comprehensive plan and zoning regulations, whether it is a rezone or not; and that, therefore, the appropriate vehicle to challenge this land use action is a petition pursuant to LUPA. It argues that the challenge to the Hearings Board of the comprehensive plan comes too late. Woods v. Kittitas County, 162 Wn.2d 597, 614, 174 P.3d 25 (2007). The County continues that the recreational overlay is a site-specific project permit; therefore, it requires only authorization by statute and is not subject to review under the GMA. Id. at 610. And it urges that the permit meets the definition of a “project permit application” because it relates to a specific project for a specific use by a specific applicant that is authorized by existing zoning laws. RCW 36.70B.020(4); Woods, 162 Wn.2d at 613. Again, relying on Woods, the County urges that the superior court may review a project permit only by applying LUPA standards to decide whether the land use decision complies with a comprehensive plan and/or development regulations. Woods, 162 Wn.2d at 603.
fll The GMA was enacted in 1990 to stop uncoordinated, unplanned growth and the attendant threats to the environment. RCW 36.70A.010; Woods, 162 Wn.2d at 608. Toward that end, the legislature called for citizens, the local government, and the private sector to cooperate in “compre
¶12 Several planning goals in the GMA guide the development of a comprehensive plan and development regulations. RCW 36.70A.020; Skagit Surveyors, 135 Wn.2d at 547. Among these goals is the desire to “[m]aintain and enhance natural resource-based industries, including productive timber, agricultural, and fisheries industries. Encourage the conservation of . . . productive agricultural lands, and discourage incompatible uses.” RCW 36.70A-.020(8). The comprehensive plan must designate an area for urban growth and a rural area outside the urban growth area. RCW 36.70A.110(1), .070(5)(b); Woods, 162 Wn.2d at 608-09.
¶13 To implement the policies of the comprehensive plans, counties must adopt consistent development regulations. RCW 36.70A.040(3)(d), (4)(d); Woods, 162 Wn.2d at 609. Development regulations are “controls placed on development or land use activities by a county or city,” including zoning ordinances. RCW 36.70A.030(7). Development regulations do not include a decision to approve a project permit application, “even though the decision may be expressed in a resolution or ordinance.” Id. A site-specific rezone, authorized by a comprehensive plan, requires only a project permit application. RCW 36.70B.020(4).
¶14 Three growth management hearings boards enforce the GMA. Woods, 162 Wn.2d at 609. But the jurisdiction of these boards is limited. They can decide only those petitions that challenge comprehensive plans, devel
¶15 The Orchardists contend that the recreational overlay permit approved here is a zoning amendment that they may challenge as a violation of the GMA. They note that chapter 14.32 of the Douglas County Code (DCC) requires that all zoning amendments must be reviewed for consistency with the GMA. DCC 14.32.030, .040, .050. They insist that even site-specific rezones constitute zoning amendments that must comply with the GMA and cite DCC 14.32.040:
A. Types of Amendments.
1. Site-specific map amendments.
Site-specific plan map amendments apply to a limited geographical area controlled either by an individual property owner or all property owners within the designated area. . . .
Applications for site-specific map changes should be reviewed by the planning commission at a public hearing in June. The planning commission will make a recommendation on the proposed amendments and transmit them for final action by the Board of Commissioners at the completion of the annual comprehensive plan amendment process.
¶16 We disagree with the Orchardists. A recreational overlay district is not a zoning amendment. It is, rather, a special use overlay of existing zones. DCC 18.12.060. The County zoning regulations designate 10 zoning districts and 3 overlay districts, including the recreational overlay. DCC 18.12.020. The purpose of the district overlay designation is “to implement comprehensive plan policies that identify recreational activities or special opportunities for achieving public benefits by allowing uses that differ from
Whether the Recreational Overlay Violates State Law Protecting Agricultural Land
¶17 The Orchardists next contend that this recreational overlay district violates state law calculated to protect agricultural land. And this, they argue, is so whether the recreational overlay here is characterized as a site-specific rezone or simply a permitted use. We characterize this as a permitted use, for reasons we have already discussed. But it would not make any difference in the result if we were to characterize this as a site-specific rezone. RCW 36.70A.177(1) authorizes cities and counties to use “a variety of innovative zoning techniques” in agricultural areas to “conserve agricultural lands and encourage the agricultural economy.” Generally, a county or city should encourage nonagricultural uses in areas with poor soils or areas that are otherwise inappropriate for agriculture. RCW 36.70A.177(1). But whether, and to what extent, this recreational overlay, or any recreational overlay, impairs the use of this land for agriculture is, first of all, a factual question easily addressed in a LUPA action. Here, there was ample testimony to support the ultimate findings that the trail was not inconsistent with the use of this land for agriculture. We discuss this evidence in the section entitled “Substantial Evidence for Facts Supporting Recreational Overlay Designation” below.
¶18 Second, even if the use of a recreational overlay in the agricultural zone did violate RCW 36.70A .177, the Orchardists had to bring a challenge within 60 days of adoption of a comprehensive plan that accommo
Once adopted, comprehensive plans and development regulations are presumed valid. RCW 36.70A.320G). Thus, if a project permit is consistent with a development regulation that was not initially challenged, there is the potential that both the permit and the regulation are inconsistent with the GMA. While this is problematic, the GMA does not explicitly apply to such project permits and the GMA is not to be liberally construed.
Woods, 162 Wn.2d at 614.
¶19 The Orchardists did not timely challenge the zoning regulations (ch. 18.46 DCC) as running afoul of the GMA. And that code provides for these “R-0 Recreational Overlay Districts” that specifically include as permitted uses “Recreational trail systems.” DCC 18.46.040(J).
¶20 The Orchardists’ essential challenge here implicates the application of these regulations, not the regulations themselves. But a hearings board’s jurisdiction is limited to challenges of comprehensive plans, development regulations, and amendments to comprehensive plans and development regulations. RCW 36.70A.280(l)(a), .302; Woods, 162 Wn.2d at 609. The Hearings Board simply “does not have jurisdiction to hear a petition alleging that a site-specific rezone violates the GMA.” Woods, 162 Wn.2d at 612. And that is what we are dealing with here.
¶21 LUPA is the exclusive means for judicial review of land use decisions that are not subject to review by quasi-judicial bodies such as the hearings boards. RCW 36.70C-.030; Woods, 162 Wn.2d at 610. We therefore conclude that the Hearings Board properly ruled that it did not have jurisdiction to decide whether the site-specific recreational overlay adopted here complied with the GMA. Woods, 162 Wn.2d at 610.
f 23 The trial court was correct: the Hearings Board did not have jurisdiction to pass on whether the recreational overlay permit complied with the GMA.
Overlay District — Site Specific — Authorized by the Comprehensive Plan
¶[24 The Orchardists next argue that the trail is not a “site-specific” rezone authorized by the comprehensive plan and does not, therefore, qualify for a project permit. They argue that a 200-foot-wide corridor 5 miles long is hardly “site-specific.” Indeed, they urge that under pre-GMA cases, a 200-foot-wide, 5-mile-long corridor zoned differently from the land on either side could never qualify as a site-specific rezone. They also note that the County’s comprehensive plan does not even mention recreational overlays.
¶26 A site-specific rezone involves specific parties requesting a classification change for a specific tract. Id. at 611 n.7. Here, there is no change to the zoning classification of land underlying or contiguous to this overlay district. And a defined trail across public land is a site-specific tract. Id.
f27 Again, a site-specific rezone is a project permit under RCW 36.70B.020(4) if it is authorized by a comprehensive plan or development regulations. Woods, 162 Wn.2d at 610. The Orchardists contend the recreational overlay district here is not authorized by the comprehensive plan because the County’s comprehensive plan does not mention recreational overlays and specifically discourages nonagricul-tural uses in agricultural areas. See CP at 0-1561 (Douglas County Countywide Comprehensive Plan § 5.2.3 (Agricultural Goals and Policies) (amended Jan. 28, 2003)). But a site-specific rezone need not be expressly included in a comprehensive plan as a permitted use. The comprehensive plan is a general blueprint for land use decisions; it does not directly regulate, nor was it intended to directly regulate, site-specific land uses. Woods, 162 Wn.2d at 613. “Thus, a proposed land use decision must only generally conform, rather than strictly conform, to the comprehensive plan.” Id. (emphasis omitted).
¶28 And yes, the comprehensive plan here sets out a goal to preserve, enhance, and maintain agricultural uses “to the greatest extent possible.” CP at 0-1561. But the same plan also encourages the “developing trail system” in East Wenatchee as an alternative mode of transportation.
¶29 The Greater East Wenatchee Comprehensive Plan supports extension of the trail system, citing the “healthy recreation opportunities” and the “personal mobility options” that will lighten the load on the transportation systems. CP at 0-0186. And the Greater East Wenatchee Comprehensive Plan specifically states that “[t]he current trail system should be increased to extend north to connect with Lincoln Rock State Park.” CP at 0-0188. We then conclude that the extension of the trail here is consistent with the policies of both the Greater East Wenatchee and Douglas County Countywide Comprehensive Plans.
¶30 Moreover, the recreational overlay permit for the trail is authorized by County development regulations, including DCC 18.46.010. That code section specifically provides that
[t]he purpose of the R-0 recreational overlay district is to provide for the continuance of public and private parks and other outdoor recreational facilities in order to encourage the development of additional active recreational facilities in Douglas County, and to maintain adequate buffers between recreational developments and surrounding land uses.
DCC 18.46.010. The same code permits these recreational overlay districts wherever they are not prohibited. DCC 18.46.020. And they are not prohibited where they are proposed here.
¶31 Recreational trails are a permitted use in a recreational overlay district. DCC 18.46.040(J). And these trails are not prohibited by agricultural development regulations. See DCC 18.34.050; DCC 18.36.050. The Orchardists are correct that “pedestrian/bicycle access corridors” are discouraged in agricultural lands of long term commercial significance. DCC 18.16.150(1). But the development standards of the recreational overlay regulations ensure that an
¶32 We conclude then that the recreational overlay district is both site specific and consistent with the comprehensive plans and County development regulations. Woods, 162 Wn.2d at 613. This recreational overlay district was properly reviewed as a project permit rather than as a rezone. RCW 36.70B.020(4).
Substantial Evidence foe Facts Supporting Recreational Overlay Designation
¶33 The Orchardists next contend that the County commissioners’ findings used to support their decision to approve the recreational overlay are not supported by substantial evidence. The commissioners adopted the November 2006 findings and conclusions of the hearing examiner and added their own findings and conclusions. The Orchardists assign error to the hearing examiner’s findings (1) that rely on the decision of the shoreline hearings board; (2) that state that the Washington State Department of Transportation was a proper applicant; (3) that fail to show authorization by the comprehensive plans; (4) that use a “mitigation” standard rather than a “protection” standard for agricultural areas; (5) that ignore buffer requirements; (6) that say that the State Environmental Policy Act (SEPA), chapter 43.21C RCW, requirements were met; and (7) that beekeepers’ concerns are mitigated. They also challenge the commissioners’ findings because they (8) do not consider the GMA requirements for innovative zoning techniques, (9) fail to show that alternatives to the trail site were considered or that mandatory development standards were met, and (10) approve a site plan that exceeds the scope of the recreational overlay zone.
¶34 We review land use decisions under LUPA. RCW 36.70C.130(1). We, like the superior court, apply the LUPA standards of review directly to the County commissioners’ decision. Henderson v. Kittitas County, 124 Wn.
¶35 We review challenges to the factual findings that underlie the land use decision for substantial evidence. J.L. Storedahl & Sons, Inc. v. Clark County, 143 Wn. App. 920, 928, 180 P.3d 848, review denied, 164 Wn.2d 1031 (2008). And, just like other challenges to factual findings that come before this court, we view the evidence in a light most favorable to the party that prevailed. Woods, 162 Wn.2d at 617. State Parks and the County prevailed before the County commissioners, and so we review the record that was before the commissioners in the light most favorable to the respondents. Id.
¶36 This record contains nearly 9,000 pages of administrative proceedings. It includes extensive testimony and exhibits that speak to the advantages and disadvantages of the trail extension proposed here. The hearing examiner reviewed the record after an open public hearing. And his findings are easily supported by the evidence.
¶37 Specifically, he correctly notes that the Greater East Wenatchee Comprehensive Plan “places significant importance on the protection of agricultural lands” and requires minimal disruption of agricultural activities. CP at 1-6628; see CP at 0-3859 (“[a]gricultural uses will be preserved, enhanced, and maintained to the greatest extent possible”). The hearing examiner lists a variety of measures that mitigate the effects on agriculture, including enhanced setbacks and buffers, gates at both ends of the agricultural area that can be closed during certain agricultural opera
¶38 The hearing examiner’s finding that State Parks complied with SEPA procedures is supported by the record and by a superior court ruling in McNeal v. Douglas County, No. 04-2-00045-6 (Douglas County Super. Ct., Wash. Sept. 13, 2005). CP at 0-1735, 0-3663, 0-7842. The superior court ruled that compliance with SEPA need not be reviewed further unless there were changes to the proposed project that would adversely affect the environment. See WAC 197-11-600(3)(b) (an environmental document may be used by an agency until there are substantial changes that would likely have a significant adverse impact). No changes in this project would prompt a new SEPA review.
f 39 The Orchardists also argue that the hearing examiner and the County commissioners failed to make certain necessary findings, specifically regarding compliance with the GMA and with County buffering ordinances. But, again, neither the hearing examiner nor the commissioners had jurisdiction to consider compliance with the GMA. And, therefore, they had no duty to enter findings to address GMA requirements under RCW 36.70A.177. Buffers were adequately covered in the hearing examiner’s findings and attached conditions of approval. The findings refer to the buffers established in the permit application, and the application in turn promises compliance with the buffer requirements of the County code. DCC 18.46.080.
¶40 The Orchardists also contend the hearing examiner failed to find that construction of the trail would comply with DCC 19.18.035(2). That code section states that trail facilities must “minimize the removal of trees, shrubs,
¶41 The Orchardists label some findings as inappropriate. Appellants’ Br. at 43-47. But those findings are not relevant to the decisions of the hearing examiner and County commissioners. For example, the Orchardists contend that the hearing examiner inappropriately relied on the decision of the shoreline hearings board. Not so. The hearing examiner merely includes the shoreline development permit process in his summary of the trail permit proceedings. And the County commissioners entered several findings that express their disagreement with the superior court’s conclusion that the hearing examiner had no authority to issue the trail project permit. Yet the County commissioners considered the permit as ordered.
¶42 The Orchardists also contend that the County commissioners should have included findings that State Parks (1) failed to study appropriate alternatives to the trail site, (2) did not comply with County regulations on buffers (DCC 18.46.070(A)), and (3) should have required the signatures of each applicant and property owner on the project application (DCC 14.06.010(B)(7)). The hearing examiner, however, included findings on each of these points. His findings were adopted by the County commissioners. He found that State Parks considered alternative routes and has proposed buffers and setbacks to minimize the impact on agriculture. The Department of Transportation is a property owner, and the Orchardists complain that the department did not sign the application as required by DCC 14.06.010(B)(7). But we find no authority to impose what we conclude is a hypertechnical reading of the code. The Department of Transportation verified that it was aware of the project and authorized the State Parks by letter to represent its interests in the application process. That is sufficient.
¶43 The findings here are supported by this record.
¶44 The Orchardists next contend the County commissioners approved a site plan that is up to 220 feet wide, including buffers, and this exceeds the 20-foot-wide recreational overlay. They argue that approval of a recreational overlay district authorizes only the specific overlay proposed. DCC 18.46.030(A), cited by the Orchardists, states that approval of a recreational overlay application “shall be based on a specific site design authorizing only the specific development proposed, unless amended.” The specific site design here includes buffers from 60 to 100 feet wide on each side of the trail. The approved recreational overlay district did not exceed the scope of the proposed development.
Whether the Comprehensive Plan Conflicts with General Laws of the State Protecting Agricultural Lands
f45 The Orchardists contend that the Douglas County Countywide and Greater East Wenatchee Comprehensive Plans and development regulations are void because they permit what the GMA prohibits: recreational zoning in an agricultural resource area of prime soil. And for that reason, the Orchardists urge that the commissioners have run afoul of article XI, section 11 of the state constitution.
¶46 Article XI, section 11 of the state constitution allows local governments to adopt regulations that are not in conflict with general law. State v. Kirwin, 165 Wn.2d 818, 825, 203 P.3d 1044 (2009). A local regulation conflicts with general law if it permits what state law forbids or forbids what state law permits. Id. An ordinance or regulation that conflicts with a statute is invalid. Id. at 826.
¶47 The Orchardists contend that the comprehensive plans and development regulations authorizing a recreational overlay in an agricultural resource area conflict with RCW 36.70A.177. This provision of the GMA states that a county or city may use innovative techniques
Attorney Fees
¶48 Both the County and State Parks request attorney fees and costs pursuant to RCW 4.84.370. The statute mandates fees and costs to the prevailing party or substantially prevailing party on appeal of a decision to issue, condition, or deny a development permit involving a site-specific rezone. RCW 4.84.370(1). An award under this statute is limited, however, to a prevailing party on appeal who was the prevailing party or substantially prevailing party in all prior judicial proceedings. RCW 4.84.370(l)(b).
¶49 The Orchardists note that State Parks and the County did not prevail in previous judicial proceedings. The superior court reversed the hearing examiner’s approval of the trail as a transportation facility and reversed the hearing examiner’s grant of the recreational overlay. In both cases, the court concluded that the hearing examiner did not have authority to make those decisions. Eventually, State Parks and the County obtained the recreational overlay permit and site plan approval from the County
¶50 The appeal before this court is limited to the Or-chardists’ challenges to the County commissioners’ resolution. State Parks and the County are then the prevailing parties and are entitled to the attorney fees and costs on appeal.
¶51 We affirm the decisions of the superior court that dismissed the challenges of the Orchardists to the recreational overlay district.
Schultheis, C.J., and Korsmo, J., concur.
Reconsideration denied February 19, 2010.
Review granted at 169 Wn.2d 1006 (2010).