[No. 62167-0-I. Division One. November 2, 2009.]
April 17, 2009, Oral Argument
George R. Hill (of McCullough Hill, PS) and John M. Groen (of Groen Stephens & Klinge, LLP), for appellants.
Greg A. Rubstello; Michael C. Walter (of Keating Bucklin McCormack, Inc., PS); and Philip A. Talmadge (of Talmadge/Fitzpatrick), for respondent City of Woodinville.
J. Richard Aramburu and Jeffrey M. Eustis (of Aramburu & Eustis, LLP), for respondent Concerned Neighbors of Wellington.
Timothy M. Harris on behalf of Building Industry Association of Washington, amicus curiae.
[As amended by order of the Court of Appeals March 1, 2010.]
¶1 LEACH, J. -- Phoenix Development, Inc., appeals decisions of the city of Woodinville denying site-specific rezone requests and subdivision applications for two properties. Because Phoenix's proposed rezones implement the Woodinville comprehensive plan and current zoning code and comply with the city code's general rezone criteria, we hold that the rezone denials were improper. We therefore reverse the city council's decision and remand for a determination on Phoenix's preliminary plat applications.
Background
¶2 This matter relates to two parcels located in the Wellington neighborhood of northwest Woodinville: a 38.7 acre parcel known as the Wood Trails proposal and a 16.48 acre parcel known as the Montevallo proposal. ¶3 City staff prepared a draft environmental impact statement (DEIS) analyzing the alternatives and impacts of the Wood Trails and Montevallo proposals. The city published the DEIS in January 2006. The key issues addressed in the DEIS were soil stability, seismic hazards, and erosion potential; surface water, ground water/seepage and water runoff; wildlife, threatened or endangered species, habitat and migration routes; land use, plans and policies, neighborhood character, open space and environmentally sensitive areas; transportation, existing and proposed street system, motorized traffic, nonmotorized traffic/pedestrian movement/school safe walk routes and safety hazards; and parks and recreation. The DEIS evaluated the proposed developments (proposed action) and three alternatives: (1) development at the current R-1 zoning, with individual septic systems like the existing land uses in the Wellington neighborhood (R-1 zoning alternative); (2) development of attached housing (townhomes) on the Wood Trails property, with single-family lots on the Montevallo property (attached housing alternative); and (3) no development on either site (no action alternative). ¶4 The final environmental impact statement (FEIS) published in December 2006 provided additional analysis and clarification of several elements, descriptions of minor changes to Phoenix's proposal, and responses to public comments. The FEIS identified the following key environmental issues: Earth: Soil stability/possible sand layer, seismic hazards and erosion potential associated with development of Wood Trails. Water Resources: Surface water, ground water/seepage and water runoff associated with development of Wood Trails and Montevallo. Plants & Animals: Wildlife, threatened or endangered species, habitat and wildlife connectivity routes associated with development of Wood Trails and Montevallo. Land Use: Land use plans and policies, neighborhood character, open space and critical areas associated with development of Wood Trails and Montevallo. Transportation: Transportation, existing and proposed street system, motorized traffic, non-motorized traffic/pedestrian movement/school safe walking routes and safety hazards associated with development of Wood Trails and Montevallo. Public Services: Parks and recreation associated with development of Wood Trails and Montevallo. Fire, police, schools, water and sewer were determined not to be significant environmental issues. The FEIS includes tables comparing the impacts, mitigation, and significant unavoidable adverse impacts of the proposed action and each alternative action on the Wood Trails and Montevallo sites. ¶5 Staff reports for Montevallo and Wood Trails also analyzed whether the proposals complied with the comprehensive plan and the Woodinville Municipal Code (WMC). The city code criteria for a rezone provide: A zone reclassification shall be granted only if the applicant demonstrates that the proposal is consistent with the Comprehensive Plan and applicable functional plans at the time the application for such zone reclassification is submitted, and complies with the following criteria: (1) There is a demonstrated need for additional zoning as the type proposed. (2) The zone reclassification is consistent and compatible with uses and zoning of the surrounding properties. (3) The property is practically and physically suited for the uses allowed in the proposed zone reclassification. ¶6 Staff concluded that both proposals met the R-4 residential zone criteria and met two of three rezone criteria under subsections 2 and 3. The staff report did not make a recommendation as to the first criterion, the "demonstrated need" requirement of WMC 21.44.070(1), stating that this criterion "ultimately requires an objective judgment by the hearing examiner and city council based upon relevant City plans, policies, goals, and timeframes." ¶7 Public hearings regarding the Montevallo and Wood Trails rezone requests and preliminary plat applications were held on March 14 and 15 and April 5, 2007. The hearing examiner considered testimony and documentary evidence, including the FEIS and a lengthy analysis of the proposals submitted by the Concerned Neighbors of Wellington (CNW). ¶8 On August 20, 2007, the city council entered findings, conclusions, and a decision denying Phoenix's requests to rezone Wood Trails and Montevallo from R-1 to R-4. Based on its decision regarding the rezones, the council summarily denied the subdivisions as inconsistent with the sites' existing R-1 zoning designation. ¶9 Phoenix filed a land use petition in superior court, seeking reversal of the city council's denial of its rezone and subdivision requests. The superior court dismissed the petition, holding that Phoenix failed to establish any of the six standards set out in the Land Use Petition Act, RCW 36.70C.130. Standard of Review [1-6] ¶10 The denial of a site-specific rezone is a land use decision. (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. In reviewing a land use decision, this court stands in the same position as the superior court. Analysis A. Legislative Findings ¶11 As a preliminary matter, Phoenix argues that the council's finding of fact 6 is unlawful because the council purports to be acting "in its legislative capacity" when the council was required to be acting in a quasi-judicial capacity. We agree. [7-9] ¶12 A site-specific rezone request is a quasi-judicial decision that the council must evaluate under legislatively established criteria, including the comprehensive plan policies B. Rezone Denials [10, 11] ¶13 An applicant may challenge the denial of a rezone request on the basis that a local jurisdiction did not follow its own development regulations. [12, 13] ¶14 Three general rules apply to rezone applications: (1) there is no presumption of validity favoring a rezone; (2) the rezone proponent must demonstrate that circumstances have changed since the original zoning; and (3) the rezone must have a substantial relationship to the public health, safety, morals, or general welfare. [14-20] ¶15 Woodinville imposes additional criteria for approval of a site-specific rezone application in WMC 21.44.070: A zone reclassification shall be granted only if the applicant demonstrates that the proposal is consistent with the Comprehensive Plan and applicable functional plans at the time the application for such zone reclassification is submitted, and complies with the following criteria: (1) There is a demonstrated need for additional zoning as the type proposed. (2) The zone reclassification is consistent and compatible with uses and zoning of the surrounding properties. (3) The property is practically and physically suited for the uses allowed in the proposed zone reclassification. ¶16 The Woodinville zoning code contains purpose statements for various zones and map designations. The code requires that these purpose statements are to be used to guide application of the zones and land use regulations within the zones. (1) The purpose of the Urban Residential zones (R) is to implement Comprehensive Plan goals and policies for housing quality, diversity and affordability, and to efficiently use residential land, public services and energy. These purposes are accomplished by: (a) Providing, in the low density zones (R-1 through R-4), for predominantly single-family detached dwelling units. Other development types, such as duplexes and accessory units, are allowed under special circumstances. Developments with densities less than R-4 are allowed only if adequate services cannot be provided. . . . . (2) Use of this zone is appropriate in residential areas designated by the Comprehensive Plan as follows: (a) The R-1 zone on or adjacent to lands with area-wide environmental constraints, or in well-established subdivisions of the same density, which are served at the time of development by public or private facilities and services adequate to support planned densities; (b) The R-4 through R-8 zones on urban lands that are predominantly environmentally unconstrained and are served at the time of development by adequate public sewers, water supply, roads and other needed public facilities and services . . . . ¶17 The council concluded that the R-4 zone was not appropriate for Phoenix's properties for a number of reasons. The council concluded that these rezones were inappropriate "due to the deficient public facilities and services (other than sewer) in the area where the property is located and the currently ongoing sustainable development study." 1. Adequate Services under WMC 21.04.080 ¶18 Phoenix claims that WMC 21.04.080 requires that the city approve the rezone applications unless adequate services cannot be provided. WMC 21.04.080 requires Woodinville to approve a request to rezone property to R-4 if the request meets all the other rezone criteria. ¶19 WMC 21.04.080(a) provides, "Developments with densities less than R-4 are allowed only if adequate services cannot be provided . . . ." The city characterizes this code purpose statement as "simply an indicia of legislative intent" that does not give rise to an enforceable right or create a mandatory code requirement. The city claims that this provision does not supplement the specific rezone criteria described in WMC 21.44.070 and that there is no indication that the council should use the zoning code purpose statements when making site-specific zoning decisions. The city notes that WMC 21.44.070 does not refer to any purpose statement. ¶20 But the city fails to reconcile its position with the mandate of WMC 21.04.020: "The purpose statements for each zone and map designation set forth in the following sections shall be used to guide the application of the zones and designations to all lands in the City of Woodinville." The city also does not explain why WMC 21.04.080 is phrased in mandatory terms if it is an expression of intent only. Finally, the city ignores the historical context against which it adopted WMC 21.04.080. ¶21 To satisfy certain requirements of the Growth Management Act (GMA), chapter 36.70A RCW, the city adopted its GMA comprehensive plan on June 24, 1996. ¶22 The board stated, "Woodinville may not engender or perpetuate a near-term land use pattern (one-acre lots) that will effectively thwart long-term (beyond the twenty-year planning horizon) urban development within its boundaries." ¶23 On July 14, 1997, the city adopted its amended zoning code, including the statement of purpose for urban zones quoted above. The city's adoption of WMC 21.04.080 shortly after the hearing board's admonition that the city may not engender or perpetuate one-acre lots to thwart long-term urban development within its boundaries demonstrates the city's decision to comply with a GMA density policy by allowing developments with densities less than R-4 only if adequate services cannot be provided. ¶24 Under WMC 21.04.080(1)(a) the city must approve Phoenix's request to rezone properties from R-1 to R-4, if adequate services can be provided, the requirements of WMC 21.44.070 are met, the provisions of WMC 21.04.080(2)(a) do not apply, and the rezones are not otherwise prohibited by law. ¶25 In several findings and conclusions, the council stressed that its fiscal constraints required it to prioritize its actions and had therefore selected the downtown area for focused growth and infrastructure. For example, the council found that [t]he City is not yet prepared to commit capital resources to the subject area in the near-term. Committing the City to prematurely construct infrastructure and provide services to this area will become increasingly problematic, resulting in an increasing inefficiency of services thereby lessening the economic gain and placing a growing strain on the fiscal resources of the community. The council concluded that the proposals were inconsistent with the city's strategy to meet its regional growth objective. The City has chosen to meet the growth objective in the CBD [Central Business District] while insuring that new growth in other areas of the City does not negatively impact the City's transportation[,] land use[,] and capital facilities goals and objectives. But the council made no factual findings that would support the denial of the rezones on the basis that adequate services cannot be provided, and a conclusion that adequate services cannot be provided is not supported by evidence that is substantial when viewed in light of the whole record before it. ¶26 The council does not identify any services that cannot be provided to Montevallo or Wood Trails. The council vaguely refers to "infrastructure," "facilities," and "services" throughout its decision. The only service specifically mentioned in the council's decision is transportation. ¶27 Phoenix argues that transportation is not a "service" under WMC 21.04.080(1)(a). We need not reach the question whether transportation is a service, however, because there is no evidence that transportation cannot be provided to the proposed developments. Rather, the council found that there were "unavoidable adverse impacts to transportation systems" identified by the FEIS which "can be avoided by denial of the rezone." ¶28 In recommending that the rezones be approved, the hearing examiner recognized that under WMC 21.04.080, "[d]evelopments with densities less than R-4 are allowed only if adequate services cannot be provided." 2. Demonstrated Need ¶29 Phoenix argues that the council erred when it concluded that the demonstrated need requirement under WMC 21.44.070 was not met. Phoenix urges the court to adopt the hearing examiner's view, arguing that the examiner "presented a thorough analysis and resolution of this issue." ¶30 The hearing examiner concluded that there is a demonstrated need for additional zoning of the type proposed by Phoenix. The hearing examiner's recommendation considered all evidence presented. Although the staff report did not contain a recommendation as to demonstrated need, the hearing examiner considered the opinion expressed in the staff report that the city can meet its required housing allocation under the GMA for the planning period of 2001 to 2022 without further zone changes to higher density. The hearing examiner also considered evidence presented by CNW that a large number of homes similar to those proposed by Phoenix are available for sale within 10 miles of the proposed developments, although those homes are not necessarily in Woodinville. Clearly more R-4 Zoning is needed to create a diversity of building sites availability [sic] by establishing more areas where detached single-family can be constructed at lower densities than R-1 densities. In addition, the Growth Management Hearings Board has held that Woodinville is not to perpetuate one-acre lots that will effectively thwart urban development. The hearing examiner's conclusion that the city's relative lack of R-4 zoning compared with its abundance of R-1 zoning demonstrates a need for additional single-family zoning at densities that help to further the goals of Woodinville's comprehensive plan and the GMA is supported by the record. As the board held in Hensley I, one-acre lots thwart, rather than encourage, urban development. The board's decision also reflected Woodinville's obligation to look beyond the 20-year horizon when evaluating both housing needs and the impact of a current decision. CNW's evidence that many similar lots are for sale within 10 miles of the proposed developments indicates that other cities are providing this type of housing, but does little to help us determine whether there is a need for higher density single-family housing in Woodinville. We hold that the city's finding that the proposed rezones are not needed is not supported by evidence that is substantial when viewed in light of the whole record before the court. 3. Consistency with Comprehensive Plan ¶31 Land use decisions must generally conform to the jurisdiction's comprehensive plan. ¶32 The staff report identifies several policies implicated by the proposed rezones within the land use, housing, community design, capital and public facilities, and environmental elements of the plan. The staff report discusses these policies in detail and concludes that "the development as proposed would be consistent generally with the Comprehensive Plan. The site could accommodate development consistent with the R-4 zone." the zone change will allow the development of low-density detached single-family homes in an area designated in the comprehensive plan as low density residential. While arguments have been made that the adjacent neighborhood is much less dense, R-4 is still classified as low density. In addition, buffering as recommended by the City, can alleviate impacts from a slight difference in density. The site will be served with City water and sewer and the street network will be improved. The west side of the site will be left in a Native Growth Protection Area . . . . It presents a range of densities, which encourages a variety of housing types to serve a variety of income levels. It preserves much of the natural features of the site, such as the wetland and will preserve trees in accordance with the City's Tree Retention regulations. The council, on the other hand, concluded that the rezones were not consistent with the comprehensive plan. However, the council did not identify any plan goals or policies that were inconsistent with the proposals. The council's findings do not support its conclusion that the proposals are inconsistent with the comprehensive plan. ¶33 Phoenix also argues that the city is collaterally estopped from arguing that R-1 zoning is allowed under the comprehensive plan because the board held in Hensley I that the city could not perpetuate low-density one-acre zoning. Collateral estoppel bars relitigation of identical issues where there has been a final judgment on the merits, the party against whom the plea is asserted was a party to or in privity with a party to the prior adjudication, and application of the doctrine does not work an injustice on the party against whom the doctrine is to be applied. ¶34 However, Hensley I is instructive in interpreting the comprehensive plan. As we discussed above, the board held that "Woodinville may not engender or perpetuate a near-term land use pattern (one-acre lots) that will effectively thwart long-term (beyond the twenty-year planning horizon) urban development within its boundaries." ¶35 The FEIS analyzes the impact of the proposed action and the alternatives under approximately 25 policies enumerated in the city's comprehensive plan, including land use, housing, community design, capital and public facilities, and environmental policies. ¶36 The council erred when it concluded the proposed rezones were inconsistent with the comprehensive plan. 4. Substantial Relationship to the Public Health, Safety, Morals, or Welfare ¶37 The council concluded that the proposals did not bear a substantial relationship to the public health, safety, morals, or welfare. However, neither the council's findings nor the record supports this conclusion. ¶38 In Henderson v. Kittitas County, ¶39 The proposals further the city's land use policy LU-1.1 by helping the city accommodate its GMA residential growth forecasts. As stated in the FEIS, the proposed action does more to further this goal than any of the alternatives evaluated by the city in the FEIS. ¶40 The proposed rezones further a number of comprehensive plan policies and therefore bear a substantial relationship to the public health, safety, morals, and welfare. ¶41 In sum, WMC 21.04.080 requires that the city approve an otherwise qualified rezone application unless adequate services cannot be provided. The record establishes that adequate services can be provided to the proposed developments. Contrary to the city's contentions, there is a demonstrated need for additional R-4 zoning and the proposals are consistent with the comprehensive plan and bear a substantial relationship to the public health, safety, morals, and welfare. The rezones are also consistent and compatible with uses and zoning of the surrounding properties, and the property is practically and physically suited for the uses allowed in the proposed zone reclassification, as required by WMC 21.44.070. We reverse the city council's denial of the rezones and remand to the city to grant the rezones. C. Preliminary Plat Application ¶42 The council denied Phoenix's preliminary plat applications on the basis that the subdivisions were inconsistent with the R-1 zone. Because we reverse the council's rezone decision, we remand to the city for consideration of Phoenix's preliminary plat applications. Conclusion ¶43 The city council erred when it concluded that adequate services could not be provided to the subject properties, that the rezones were inconsistent with the Woodinville comprehensive plan, that there was no demonstrated need for the rezones, and that the rezones do not bear a substantial relationship to the public health, safety, morals, or welfare. The council further erred by engaging in an unlawful legislative procedure during a quasi-judicial decision-making process. Because the proposed rezones meet all statutory and common law requirements for rezones, we reverse the denial of the rezones and remand for reconsideration of Phoenix's preliminary plat applications. ¶44 Reversed and remanded. SCHINDLER, C.J., and ELLINGTON, J., concur.