176 Wn. App. 555, SPOKANE COUNTY V. E. WASH. GROWTH MGMT. HEARINGS BD.
[No. 30725-5-III. Division Three. September 10, 2013.]
SPOKANE COUNTY, Appellant, v. THE EASTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD ET AL., Respondents.Affirmed.
BROWN, J., delivered the opinion for a unanimous court.David W. Hubert, for appellant.
Richard K. Eichstaedt (of Center for Justice); and Frederick J. Dullanty Jr. and Nathan G. Smith (of Witherspoon Kelley), for respondents.AUTHOR: Stephen M. Brown, J. WE CONCUR: Teresa C. Kulik, J., Laurel H. Siddoway, A.C.J.Stephen M. Brown
1 BROWN, J. -- Spokane County (County) appeals for the second time an Eastern Washington Growth Management Hearings Board decision that invalidated the County's planning actions in amendment 07-CPA-05. See Spokane County v. E. Wash. Growth Mgmt. Hr'gs Bd., 160 Wn. App. 274, 250 P.3d 1050 (Spokane County I), review denied, 171 Wn.2d 1034 (2011) (holding the hearings board had subject matter jurisdiction to review amendment 07-CPA-05). The hearings board decided the County had failed to comply with the Growth Management Act (GMA), chapter 36.70A RCW, and the State Environmental Policy Act (SEPA), chapter 43.21C RCW, when it adopted amendment 07-CPA-05. The superior court affirmed on remand from Spokane County I.2 Although Spokane County I explained the hearings board's jurisdiction extended to both the comprehensive plan amendment and the concurrent rezone, the County asserts the hearings board lacks jurisdiction over the rezone. Specifically, the County contends the hearings board lacked authority to review the rezone because it is a site-specific land use decision within the superior court's exclusive jurisdiction under the Land Use Petition Act (LUPA), chapter 36.70C RCW. We again reject this contention because the rezone was not authorized by the then-existing comprehensive plan, but rather implements the comprehensive plan amendment, over which the hearings board had jurisdiction. Additionally, we reject the County's contentions that the hearings board's decision fails to accord proper deference, lacks substantial evidence, erroneously interprets and applies the law, and is arbitrary and capricious. Accordingly, we affirm.FACTS
3 In December 2004, McGlades LLC purchased a 4.2 acre land parcel in Spokane County, on which the prior owners had operated a produce store that did not conform to the property's "Urban Reserve" zone designation. In June 2005, McGlades obtained building and restaurant permits, and expanded its nonconforming use into a market and bistro. McGlades soon applied unsuccessfully for a conditional use permit, requesting further expansion to include an asphalt driveway and drive-through espresso service, asphalt parking lot with spaces for 39 vehicles, outdoor dining and entertainment with seating for 64 patrons, and on-site alcohol consumption. McGlades then proposed amendments to the County's comprehensive plan map and zoning map that would change the property's comprehensive plan category and zone designation to "Limited Development Area (Commercial)." In July 2006, while the County contemplated the proposal, McGlades obtained a temporary use permit and presumably began expansion. But McGlades soon closed its business when the temporary use permit expired in January 2007. McGlades does not participate in this second appeal. The facts are unchanged from Spokane County I, 160 Wn. App. at 278-80.4 In September 2007, the County issued a SEPA environmental checklist and corresponding determination of nonsignificance for McGlades's proposal and seven others. The County concluded SEPA did not require environmental impact statements because the proposals presented "no probable significant adverse impacts." Administrative Record (AR) at 59, 63. Specifically, the County characterized the proposals as nonproject actions, leaving much of the required environmental analysis "[t]o be determined if site specific developments are proposed." AR at 43. Neighboring landowners Dan Henderson, Larry Kunz, and Neil Membrey unsuccessfully appealed the County's threshold determination to the county hearing examiner.5 On December 21, 2007, the Board of County Commissioners passed Resolution 07-1096, adopting McGlades's proposal along with seven others during the annual comprehensive plan amendment cycle. The resolution incorporated McGlades's proposal as amendment 07-CPA-05. Neighboring landowners Kasi Harvey-Jarvis, Dan Henderson, Larry Kunz, and Neil Membrey, along with the Neighborhood Alliance of Spokane (collectively Neighbors), successfully appealed the resolution to the hearings board. The hearings board decided (1) amendment 07-CPA-05 designated a new "Limited Area of More Intensive Rural Development" (LAMIRD) without observing applicable GMA requirements; (2) the environmental checklist was inadequate under SEPA because it did not fully disclose or carefully consider amendment 07-CPA-05's probable long-term effects; and (3) amendment 07-CPA-05 is invalid because its continued validity would substantially interfere with fulfilling the GMA's goals of promoting urban growth, reducing sprawl, and protecting the environment.6 The superior court reversed the hearings board's decision upon the County's appeal and this court reversed the superior court's decision upon the Neighbors' appeal. Spokane County I, 160 Wn. App. 274. On remand, the superior court affirmed the hearings board's decision. The County again appealed to this court.REVIEW STANDARD
[1] 7 We review a hearings board decision under the Administrative Procedure Act (APA), chapter 34.05 RCW. Feil v. E. Wash. Growth Mgmt. Hr'gs Bd., 172 Wn.2d 367, 376, 259 P.3d 227 (2011); see RCW 34.05.510. We apply APA standards directly to the hearings board record, 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); see RCW 34.05.526. The party challenging the hearings board decision (here the County) bears the burden of proving it is invalid. RCW 34.05.570(1)(a). The decision is invalid if it suffers from at least one of nine enumerated infirmities. RCW 34.05.570(3). We must grant relief from the decision if, as relevant here:(b) The order is outside the statutory authority or jurisdiction of the agency conferred by any provision of law;
(c) The agency has engaged in unlawful procedure or decision-making process, or has failed to follow a prescribed procedure;
(d) The agency has erroneously interpreted or applied the law;
(e) The order is not supported by evidence that is substantial when viewed in light of the whole record . . . ; [or]
. . . .
(i) The order is arbitrary or capricious.
RCW 34.05.570(3).
[2, 3] 8 Our review is de novo under RCW 34.05.570(3)(b) through (d), determining whether the decision contains a legal error. Kittitas County v. E. Wash. Growth Mgmt. Hr'gs Bd., 172 Wn.2d 144, 155, 256 P.3d 1193 (2011). We accord a hearings board's interpretation of the GMA "substantial weight." King County v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 142 Wn.2d 543, 553, 14 P.3d 133 (2000). But the interpretation does not bind us. City of Redmond, 136 Wn.2d at 46.[4] 9 We apply the substantial evidence review standard to challenges under RCW 34.05.570(3)(e), determining whether there exists "'a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the order.'" City of Redmond, 136 Wn.2d at 46 (quoting Callecod v. Wash. State Patrol, 84 Wn. App. 663, 673, 929 P.2d 510 (1997)). We view the evidence "in the light most favorable to . . . 'the party who prevailed in the highest forum that exercised fact-finding authority.'" City of Univ. Place v. McGuire, 144 Wn.2d 640, 652, 30 P.3d 453 (2001) (quoting State ex rel. Lige & Wm. B. Dickson Co. v. County of Pierce, 65 Wn. App. 614, 618, 829 P.2d 217 (1992)). Doing so "'necessarily entails accept[ing] the factfinder's views regarding the credibility of witnesses and the weight to be given reasonable but competing inferences.'" Id. (quoting Lige & Wm. B. Dickson Co., 65 Wn. App. at 618).[5] 10 We apply the arbitrary and capricious review standard to challenges under RCW 34.05.570(3)(i), determining whether the decision constitutes "'willful and unreasoning action, taken without regard to or consideration of the facts and circumstances surrounding the action.'" City of Redmond, 136 Wn.2d at 46-47 (quoting Kendall v. Douglas, Grant, Lincoln & Okanogan Counties Pub. Hosp. Dist. No. 6, 118 Wn.2d 1, 14, 820 P.2d 497 (1991)). "'Where there is room for two opinions, an action taken after due consideration is not arbitrary and capricious even though a reviewing court may believe it to be erroneous.'" Id. at 47 (quoting Kendall, 118 Wn.2d at 14).ANALYSIS
A. Law of the Case
11 The Neighbors argue Spokane County I precludes the County's contention that the hearings board lacked subject matter jurisdiction over the rezone. The County responds Spokane County I solely decided the hearings board had jurisdiction over the comprehensive plan amendment. We agree with the Neighbors but, as explained below, we choose to clarify the principles we established in Spokane County I.[6, 7] 12 "The law of the case doctrine provides that once there is an appellate court ruling, its holding must be followed in all of the subsequent stages of the same litigation." State v. Schwab, 163 Wn.2d 664, 672, 185 P.3d 1151 (2008) (citing Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844 (2005)). Thus, "'questions determined on appeal, or which might have been determined had they been presented, will not again be considered on a subsequent appeal if there is no substantial change in the evidence.'" Folsom v. County of Spokane, 111 Wn.2d 256, 263, 759 P.2d 1196 (1988) (quoting Adamson v. Traylor, 66 Wn.2d 338, 339, 402 P.2d 499 (1965)). We retain discretion on whether to apply the doctrine:The appellate court may at the instance of a party review the propriety of an earlier decision of the appellate court in the same case and, where justice would best be served, decide the case on the basis of the appellate court's opinion of the law at the time of the later review.
RAP 2.5(c)(2).
13 In Spokane County I, the superior court ruled the hearings board lacked jurisdiction to review the comprehensive plan amendment and concurrent rezone because they together constituted a site-specific land use decision within the superior court's exclusive jurisdiction under LUPA. 160 Wn. App. at 280. The Neighbors sought this court's relief, contending "the change here, site specific or not, amounted to an amendment of the County's comprehensive plan and therefore review was properly with the Hearings Board" under the GMA. Id. McGlades responded that "this was a site-specific rezone over which the Hearings Board had no jurisdiction." Id. The County deferred to McGlades's argument on this issue. Resp't Spokane County's Resp. Br. at 5, Spokane County I, 160 Wn. App. 274 (No. 28350-0-III). We reversed the superior court and affirmed the hearings board, reasoning:Growth management hearings boards have exclusive authority to rule on challenges alleging that a governmental agency is not in compliance with the requirements of the GMA. The hearings boards have jurisdiction to review petitions challenging whether a county's comprehensive plan, development regulations, and permanent amendments to the plan comply with the GMA. A hearings board does "not have jurisdiction to decide challenges to site-specific land use decisions because site-specific land use decisions do not qualify as comprehensive plans or development regulations."
Site-specific rezones authorized by an existing comprehensive plan are treated differently from amendments to comprehensive plans or development regulations. [LUPA] governs site-specific land use decisions and the superior court has exclusive jurisdiction over petitions that challenge site-specific land use decisions. However, "[t]he superior court may decide only whether a site-specific land use decision complies with a comprehensive plan and/or development regulation," not whether the rezone complies with the GMA. LUPA does not apply to local land use decisions "that are subject to review by a quasi-judicial body created by state law, such as . . . the growth management hearings board."
. . . .
The GMA does not make a distinction between site-specific and general comprehensive plan map amendments. Nor does the GMA recognize a single reclassification approach of "site specific Comprehensive Plan Maps," urged by McGlades. The Hearings Board had jurisdiction to review the petition.
. . . .
We . . . reverse the decision of the superior court ruling that the Eastern Washington Growth Management Hearings Board did not have jurisdiction over the comprehensive plan amendment.
160 Wn. App. at 280-82, 283, 286 (emphasis added) (second alteration and first omission in original) (citations omitted).
14 In sum, Spokane County I held the hearings board had GMA authority to consider the Neighbors' petition. Because the Neighbors' petition alleged "Spokane County unlawfully amend[ed] the Spokane County Comprehensive Plan and County Zoning map," AR at 1 (emphasis added), the Spokane County I court explained the hearings board had subject matter jurisdiction to review both the comprehensive plan amendment and concurrent rezone under the GMA, thereby rejecting McGlades's site-specific rezone arguments. Contrary to law of the case principles, the County again contends, as did McGlades in Spokane County I, that the hearings board lacked jurisdiction to review the rezone because it is a site-specific land use decision within the superior court's exclusive jurisdiction under LUPA. Even so, we exercise our discretion to further clarify the rule we established in Spokane County I.B. Jurisdiction
[8] 15 The issue is whether the hearings board had subject matter jurisdiction to review amendment 07-CPA-05's rezone under the GMA. The County contends the rezone is within the superior court's exclusive jurisdiction under LUPA. We review the hearings board's assertion of jurisdiction de novo. RCW 34.05.570(3)(b); Kittitas County, 172 Wn.2d at 155.16 Certain local governments like Spokane County must "adopt a comprehensive plan under [the GMA] and development regulations that are consistent with and implement the comprehensive plan." RCW 36.70A.040(3)(d), (4)(d), (5)(d). If a county amends its comprehensive plan, it must concurrently adopt or amend consistent implementing development regulations. WAC 365-196-805(1). A comprehensive plan is a county's "generalized coordinated land use policy statement." RCW 36.70A.030(4). Development regulations are a county's "controls placed on development or land use activities . . . , including . . . zoning ordinances." RCW 36.70A.030(7). But a "decision to approve a project permit application" is not a development regulation, even if it appears in a legislative resolution or ordinance. Id. Instead, a project permit approval is a "land use decision" under LUPA. RCW 36.70C.020(2)(a). Project permit applications include proposals for "site-specific rezones authorized by a comprehensive plan" but exclude proposals for "the adoption or amendment of a comprehensive plan . . . or development regulations." RCW 36.70B.020(4).[9-11] 17 Regional hearings boards have exclusive jurisdiction to review petitions alleging a county did not comply with the GMA in adopting or amending its comprehensive plan or development regulations. «1» Former RCW 36.70A.280(1)(a) (2003); former RCW 36.70A.290(2) (1995); Somers v. Snohomish County, 105 Wn. App. 937, 945, 21 P.3d 1165 (2001). Additionally, hearings boards may review petitions alleging a county did not comply with SEPA in adopting or amending its comprehensive plan or development regulations. Former RCW 36.70A.280(1)(a), .290(2). But hearings boards "do not have jurisdiction to decide challenges to site-specific land use decisions because [those] decisions do not qualify as comprehensive plans or development regulations." Woods v. Kittitas County, 162 Wn.2d 597, 610, 174 P.3d 25 (2007); see RCW 36.70A.030(4), (7); RCW 36.70B.020(4); RCW 36.70C.020(2)(a). Instead, the superior court has exclusive jurisdiction under LUPA to review site-specific land use decisions not subject to review by quasi-judicial agencies like hearings boards. Former RCW 36.70C.030(1)(a)(ii) (2003); Woods, 162 Wn.2d at 610.