[No. 22603-4-III. Division Three. November 16, 2004.]
JERRY HENDERSON , ET AL ., Appellants , v. KITTITAS COUNTY , ET AL ., Respondents .
[1] Building Regulations - Land Use Regulations - Judicial Review - Land Use Petition Act - Applicability - In General. The Land Use Petition Act (chapter 36.70C RCW) governs judicial review of local land use decisions.
[2] Building Regulations - Land Use Regulations - Judicial Review - Land Use Petition Act - Error of Law - Standard of Review. Under the Land Use Petition Act (chapter 36.70C RCW), issues of law are reviewed de novo.
[3] Building Regulations - Land Use Regulations - Judicial Review - Land Use Petition Act - Appellate Review - Inferences From Facts. In determining the sufficiency of the evidence supporting a local land use decision under the Land Use Petition Act (chapter 36.70C RCW), an appellate court views the record and the inferences in the light most favorable to the party that prevailed in the highest forum exercising fact-finding authority.
[4] Building Regulations - Land Use Regulations - Judicial Review - Land Use Petition Act - Clearly Erroneous Decision - What Constitutes. A local land use decision is not the product of a clearly erroneous application of the law to the facts under the Land Use Petition Act (chapter 36.70C RCW) unless a reviewing court is left with the definite and firm conviction that a mistake has been made.[5] Building Regulations - Land Use Regulations - Judicial Review - Land Use Petition Act - Appellate Review - Role
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of Appellate Court. An appellate court reviewing a superior court's decision on a petition under the Land Use Petition Act (chapter 36.70C RCW) stands in the same position as the superior court and applies the review standards of the act to the record created before the local decision maker.
[6] Zoning - Rezoning - Changed Circumstances - Burden of Proof. A party seeking the rezone of a parcel of land has the burden of demonstrating (1) that circumstances have substantially changed since the last time the parcel was zoned; (2) that the change in circumstances justifies a rezone for the public health, safety, morals, or general welfare; and (3) that local criteria for a rezone are satisfied.
[7] Zoning - Rezoning - Judicial Review - Administrative Record - Sufficiency - Determination. Findings of fact and conclusions of law supporting a decision in a rezoning matter are sufficient if they reveal the process used to resolve the factual and legal issues.
[8] Zoning - Rezoning - Changed Circumstances - Necessity - Implementation of Comprehensive Plan. Proof of changed circumstances is not required for a rezone if the proposed rezone implements policies of the local comprehensive land use plan.
[9] Zoning - Rezoning - Changed Circumstances - What Constitutes - Factors. A variety of factors may indicate a substantial change in circumstances sufficient to support a rezone of property, including changes in public opinion, local land use patterns, and the property itself.
[10] Zoning - Rezoning - Changed Circumstances - What Constitutes - Changes to Surrounding Properties - Interference With Marketability and Use of Land. A change in local land use patterns that affects the marketability and use of a parcel of land may be a sufficient change in circumstances to support a rezone of the parcel.
[11] Zoning - Rezoning - Community Displeasure - Effect. A rezone request may not be denied on the basis of community opposition alone.
[12] Zoning - Rezoning - Benefit to Public Health, Safety, Morals, or Welfare - In General. The justification of a rezone for public health, safety, morals, or general welfare must be based on more than a finding of no adverse impact. The rezone must bear a substantial relationship to the public health, safety, morals, or general welfare.
[13] Zoning - Rezoning - Benefit to Public Health, Safety, Morals, or Welfare - Tax Revenue for Additional Community Services. A proposed rezone that would result in more tax revenue to provide additional services to the community bears a substantial relationship to the public health, safety, morals, or general welfare.
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[14] Zoning - Rezoning - Benefit to Public Health, Safety, Morals, or Welfare - Promoting Goals of Comprehensive Plan. A proposed rezone that would further the goals of the local comprehensive land use plan bears a substantial relationship to the public health, safety, morals, or general welfare.
[15] Zoning - Rezoning - Subdivision Requirements - Effect. A rezone does not have to satisfy statutory subdivision requirements; nor is it proper to evaluate a rezone request by speculating as to the impacts of possible development if the rezone were granted.
[16] Zoning - Spot Zoning - What Constitutes - In General. A zoning action is not a spot zone unless it is an action by which a smaller area is singled out of a larger area and specially zoned for a use totally different from, and inconsistent with, the surrounding land and not in accordance with the local comprehensive plan, thereby granting a discriminatory benefit to some landowners to the detriment of their neighbors or the community at large.
[17] Building Regulations - Land Use Regulations - Judicial Review - Appellate Review - Attorney Fees - "Development Permit" - Rezoning. For purposes of RCW 4.84.370 , which provides for the award of attorney fees on appeal in cases involving development permits, a rezone is not a "development permit."
[18] Building Regulations - Land Use Regulations - Judicial Review - Land Use Petition Act - Attorney Fees - On Appeal. The Land Use Petition Act (chapter 36.70C RCW) does not authorize attorney fee awards on appeal.
Nature of Action: Neighboring property owners sought judicial review of a county's decision to rezone more than 100 acres of land from forest and range land with minimum 20-acre lots to agricultural land with minimum three-acre lots.
Superior Court: The Superior Court for Kittitas County, No. 03-2-00383-5, Michael E. Cooper, J., on December 1, 2003, entered a judgment upholding the county's decision.
Court of Appeals: Holding that the county's decision complied with both state and local rezoning laws, the court affirms the judgment.
James A. Grutz , for appellants .
Jeffrey D. Slothower ; and Gregory L. Zempel , Prosecuting Attorney, and James E. Hurson , Deputy, for respondents .
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¶1 SCHULTHEIS , J . - The Institute of Northwest Passages, Inc., (INP) applied for rezoning of over 100 acres of land in Kittitas County from forest and range land with minimum 20-acre lots to agricultural land with minimum 3-acre lots. The board of county commissioners adopted an ordinance approving the rezone. Several neighboring landowners petitioned for review to the superior court, which affirmed. On appeal, the neighboring landowners contend the rezone does not comply with state law or the county code. We disagree and affirm.
FACTS
¶2 Jerry and Verl Henderson, Christine Charbonneau, and David and Diane Lepsig (hereafter the Hendersons) own parcels of land in an area of Kittitas County zoned "forest and range" in chapter 17.56 Kittitas County Code (KCC). The purpose of this zone is to provide areas in the county where "natural resource management is the highest priority." KCC 17.56.010. Minimum lot sizes in this zone are 20 acres, and permitted uses include agriculture, forestry, mining, excavation, and single family residences. KCC 17.56.020, .040. INP owns 100.52 acres of land in the same forest and range zone.
¶3 Across the highway from INP and the Hendersons are zones labeled AG-3 and AG-20: agricultural zones of minimum 3-acre and 20-acre lots. Another area zoned AG-3 lies southeast of the parcels owned by INP and the Hendersons. The purpose of the AG-3 zone "is to provide for an area where various agricultural activities and low density residential developments co-exist compatibly." KCC 17.28.010. Permitted uses include agriculture, livestock, forestry, and any use permitted in the residential or suburban zones. KCC 17.28.020.
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¶4 In February 2003, INP applied for a rezone of its 100.52 acres from forest and range to AG-3. Notice of INP's application was published in the local newspaper, and a public hearing before the county planning commission was scheduled for April 2003. The Hendersons and other interested parties testified they were concerned that increased density and development of the INP land would create a fire hazard and lower their property values. Roger Weaver, authorized agent for INP, testified the actual lots would be somewhere between 5 and 10 acres each. Noting that this area is designated "Rural" in the county comprehensive plan, the planning commission found that the rezone is consistent with the comprehensive plan and the surrounding zoning. Clerk's Papers (CP) at 156. The commission also found that the rezone satisfied the six relevant rezoning criteria found in KCC 17.98.020. Ultimately the commission voted three to two to recommend approval of the rezone by the board.
¶5 On June 17, 2003, the board approved the rezone by county ordinance 2003-07. The Hendersons filed a petition for review to the superior court on June 27. After oral argument in November 2003, the trial court affirmed the decision of the board to rezone INP's land from forest and range to AG-3. The Hendersons timely appealed to this court.
REZONING
[1-5]¶6 Review of a land use decision is governed by the Land Use Petition Act (LUPA), chapter 36.70C RCW. City of University Place v. McGuire , 144 Wn.2d 640 , 647, 30 P.3d 453 (2001). Relevant to this appeal, the Hendersons sought to establish that the board's decision was not supported by sufficient evidence or was clearly erroneous. Id. ; RCW
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36.70C.130(1)(c), (d).1 "Errors of law are reviewed de novo." McGuire , 144 Wn.2d at 647 . In determining the sufficiency of the evidence, we view the record and the inferences in the light most favorable to the party that prevailed in the highest fact-finding forum. Benchmark Land Co. v. City of Battle Ground , 146 Wn.2d 685 , 694, 49 P.3d 860 (2002). Consequently, we view the record in the light most favorable to INP. We will find that the board made a clearly erroneous application of law only if we are left with the firm conviction that it made a mistake.2 Lakeside Indus. v. Thurston County , 119 Wn. App. 886 , 894, 83 P.3d 433, review denied , 152 Wn.2d 1015 (2004). On review of a superior court's decision on a land use petition, we stand in the same position as the superior court and apply the above standards to the record created before the board. Isla Verde Int'l Holdings, Inc. v. City of Camas , 146 Wn.2d 740 , 751, 49 P.3d 867 (2002); Lakeside , 119 Wn. App. at 893 .
[6]¶7 The proponent of a rezone must show a substantial change in circumstances since the last zoning and that
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this change justifies a rezone for the public health, safety, morals, or general welfare. Parkridge v. City of Seattle , 89 Wn.2d 454 , 462-63, 573 P.2d 359 (1978); Tugwell v. Kittitas County , 90 Wn. App. 1 , 8, 951 P.2d 272 (1998). Additionally, Kittitas County requires the rezoning proponent to establish the following criteria:
a. The proposed amendment is compatible with the comprehensive plan; and
b. The proposed amendment bears a substantial relation to the public health, safety or welfare; and
c. The proposed amendment has merit and value for Kittitas County or a sub-area of the county; and
d. The proposed amendment is appropriate because of changed circumstances or because of a need for additional property in the proposed zone or because the proposed zone is appropriate for reasonable development of the subject property; and
e. The subject property is suitable for development in general conformance with zoning standards for the proposed zone; and
f. The proposed amendment will not be materially detrimental to the use of properties in the immediate vicinity of the subject property; and
g. The proposed changes in use of the subject property shall not adversely impact irrigation water deliveries to other properties.
KCC 17.98.020(5).
[7]¶8 The Hendersons contend INP failed to establish changed circumstances; a substantial relationship to the public health, safety, morals, or general welfare of the community; or any of the six relevant criteria of KCC 17.98.020(5). (Requirement g of KCC 17.98.020(5) is not applicable because INP's property is not in an irrigation district.) They contend the findings adopted in the ordinance are not supported by substantial evidence or are inadequate to support the requirements for a rezone. Additionally, they assign error to the superior court's findings and conclusions. Because our review is of the board's
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decision, the superior court's findings are irrelevant on appeal. Isla Verde , 146 Wn.2d at 751 . The findings and conclusions of the board, although they do not always specifically cite the requirements of KCC 17.98.020(5), adequately address the factual disputes raised at the hearing. Hayden v. City of Port Townsend , 28 Wn. App. 192 , 195, 622 P.2d 1291 (1981). As noted in Hayden , 28 Wn. App. at 195 , too much formality in the adjudication of zoning matters would unduly complicate these proceedings. The findings adopted in the ordinance, considered with the evidence before the board, provide this court sufficient record for review.
[8, 9]¶9 I. Changed circumstances.Generally the proponent of a rezone must show a substantial change in circumstances since the last zoning or amendment unless the proposed rezone implements policies of the comprehensive plan. Bjarnson v. Kitsap County , 78 Wn. App. 840 , 846, 899 P.2d 1290 (1995). A variety of factors may indicate a substantial change in circumstances, including changes in public opinion, in local land use patterns, and on the property itself. Id . at 846-47.
[10, 11]¶10 Evidence presented by INP indicated that its property had been used for grazing for decades and had been logged in prior years. At one time, only 20-acre parcels existed in the area. From 1990 to 1992, the zoning was changed to allow one-acre lots in the forest and range area. The zoning was changed back to 20-acre parcels in 1992. Due to the changes in zoning, several parcels in the area were smaller than 20 acres. Development on these lots around INP's property reportedly interfered with its marketability as a private retreat. Based on this evidence, the planning commission found that "[t]he proposed amendment is appropriate because of changed circumstances due to the fact that once the area was used as a cattle ranch grazing area and over a period of time residential areas have grown up around it." CP at 143. The board found that the property's lack of harvestable timber and the fact that it had not been designated a resource land of long-term
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commercial significance demonstrated a change of circumstances supporting the rezone to AG-3.
¶11 The testimony and the findings indicate changes in local land use patterns from largely agricultural to residential on diverse sizes of lots. These changes reportedly affected the marketability and use of INP's property. Several owners of neighboring properties, including the Hendersons, testified in opposition to the rezone and asserted the smaller lot sizes would reduce wildlife in the area, create more fire hazards, and lower property values. Although the Hendersons claim this testimony proves that there has been no substantial change in circumstances in the area of INP's property, "neighborhood opposition alone may not be the basis of a land use decision." Tugwell , 90 Wn. App. at 9 . Viewed in the light most favorable to INP, the evidence supports a substantial change in circumstances since the last rezone.
¶12 Additionally, the rezone appears to implement policies of Kittitas County's comprehensive plan. In a section entitled "Current Land Use Patterns - A Review of Existing Zoning," the plan reveals a concern with the effects of large rural lots:
The aforementioned range of rural densities and uses has created and contributed to a successful landscape which contributes to an attractive rural lifestyle. The exception to this landscape can be seen in areas where individuals have had to acquire larger lots than desired in order to obtain a building site. This has created the effect of "rural sprawl."
CP at 429. In its introduction to the rural lands section, the comprehensive plan further describes the problem:
State planners are concerned about "urban sprawl" with less than five acre minimum lot sizes. However, over the past fifteen to twenty years Kittitas County has experienced "rural sprawl" through the adoption of 20 acre minimum lot sizes, which has caused the conversion of farm land into weed patches. Small lot zoning with conservation easements for agriculture, timber, or open space may be preferable to the wasteful "sprawl" devel
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opments of large lot zoning and could be more conducive to retaining rural character.
CP at 428. Because the proposed rezone here from forest and rural 20-acre minimum lot sizes to agricultural 3-acre minimum lot sizes implements the express policy of the comprehensive plan, this fact alone would justify the rezone. Bjarnson , 78 Wn. App. at 846 .
¶13 II. Public health, safety, morals, or general welfare.The above substantial change in circumstances (or implementation of the policies of the comprehensive plan) must justify a rezone for public health, safety, morals, or general welfare. Parkridge , 89 Wn.2d at 462 -63. The planning commission admitted some difficulty in understanding this requirement and continued its public hearing on the rezoning petition in order to seek legal advice on this issue. Eventually the commission concluded that smaller parcels on INP's land would result in more tax money to provide additional services to the area, such as fire and police protection.
[12-14]¶14 In the ordinance, the board appears to find that the rezone meets the public health, safety, morals, or general welfare requirement because the rezone will have no immediate adverse impact on the area and any future development will have to comply with standards for construction, road building, and water rights. However, more than a finding of no adverse impact is required. The rezone must "bear a substantial relationship to the public health, safety, morals, or welfare." Schofield v. Spokane County , 96 Wn. App. 581 , 587, 980 P.2d 277 (1999). More tax money to provide additional services to the community is a benefit to the public health, safety, and welfare. The primary benefit of the rezone, however, is that it furthers the goals of the comprehensive plan to increase diverse uses of rural county lands and to decrease "rural sprawl." CP at 428. Viewed in its entirety, the record supports the board's finding that the proposed rezone has a substantial relation to the public health, safety, and welfare.
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¶15 III. Criteria of KCC 17.98.020(5).Citing the opposition testimony of neighboring landowners, the Hendersons contend INP failed to satisfy the six relevant criteria of KCC 17.98.020(5). Most of the criteria deal with the general requirements of changed circumstances; compatibility with the comprehensive plan; value to Kittitas County; and a substantial relationship with public health, safety, or welfare. KCC 17.98.020(5)(a)-(d). As discussed above, INP presented evidence to meet these first four criteria. The fifth criterion is also met here. There is no real dispute that INP's property is suitable for development in conformance with the AG-3 zone, which permits any residential and customary agricultural use. KCC 17.28.020; KCC 17.98.020(5)(e).
[15]¶16 Finally, there is insufficient evidence that the rezone will "be materially detrimental to the use of properties in the immediate vicinity." KCC 17.98.020(5)(f). Although the neighboring landowners opined that rezoning INP's property to three-acre minimum lot sizes would reduce privacy as well as water and sewer resources, most of this testimony concerned prospective development of the property. As noted in Tugwell , 90 Wn. App. at 11 -12, the issue at hand is the application for a rezone, not for approval of a subdivision. "Examination of the potential impacts [of a development] at this point necessarily would be speculative. . . . [T]here is simply nothing to consider, because there are no specific plans to review and the impacts are therefore unknown." Id . at 12. In their reply brief, the Hendersons respond that the immediate effect of this increase in lot density is haphazard use by new landowners with trailers, campers, and temporary shelters - people who are unable or unwilling to install septic systems or to obtain building permits. Not only is this assertion speculative, but it is unsupported by evidence in the record.
[16]¶17 The fact that the Hendersons are unable to show that the rezone will be immediately detrimental to the use of neighboring properties also undermines their claim
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that the rezone is an illegal spot zone. Spot zoning is an action by which an area is carved out of a larger area and specially zoned for a use totally different from, and inconsistent with, the surrounding land and not in conformance with the comprehensive plan. Save a Neighborhood Env't v. City of Seattle , 101 Wn.2d 280 , 286, 676 P.2d 1006 (1984). A spot zone grants a discriminatory benefit to some landowners to the detriment of their neighbors or of the community at large. Id . (quoting Save Our Rural Env't v. Snohomish County , 99 Wn.2d 363 , 368, 662 P.2d 816 (1983)). Here, properties to the north and the southeast of INP's land are already zoned AG-3. And it has been shown that rezoning INP's property as AG-3 is consistent with the policies of the comprehensive plan. Accordingly, the rezone is not an illegal spot zone.
¶18 For the above reasons, we conclude that the record, considered in the light most favorable to INP, supports the board's decision to grant the proposed rezone from 20-acre minimum forest and range to AG-3.
ATTORNEY FEES
[17, 18]¶19 INP requests attorney fees on appeal pursuant to RCW 4.84.370 , which mandates fees to the prevailing party who appeals a decision by a town, city, or county to issue or deny a development permit involving a site-specific rezone. The prevailing party must have substantially prevailed before the county or city and in all prior judicial proceedings. As in Tugwell , 90 Wn. App. at 15 , this case involves a rezoning, not a development permit, so RCW 4.84.370 is not applicable. Further, a LUPA appeal does not give rise to attorney fees. Schofield , 96 Wn. App. at 590 . Consequently, the request for attorney fees is denied.
¶20 Affirmed.
KATO , C.J ., and KURTZ , J ., concur . Reconsideration denied December 16, 2004.