Phoenix Development, Inc., Et Ano., Appellants V. City Of Woodinville, Et Ano., Respondents
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
PHOENIX DEVELOPMENT, INC.,
a Washington corporation, and G&S
SUNDQUIST THIRD FAMILY
LIMITED PARTNERSHIP,
a Washington limited partnership,
MOTIONS
Appellants,
v.
CITY OF WOODINVILLE, a
Washington municipal corporation,
and CONCERNED NEIGHBORS OF
WELLINGTON, a Washington
nonprofit corporation,
Respondents.
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NO. 62167-0-I
ORDER CHANGING OPINION
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AND ORDER GRANTING
TO PUBLISH OPINION
The panel having determined that the opinion should be changed, it is
hereby
ORDERED that the opinion of this court in the above-entitled case filed
November 2, 2009, shall be changed as follows:
The following footnote shall be inserted on page 9, line 11, following the
word “policies”:
These policies are relevant where, as in this case and in Woods,
the zoning code expressly requires that any rezone be consistent
with the comprehensive plan.
The remainder of the opinion shall remain the same.
No. 62167-0-I / 2
Robert D. Johns, an interested party, and Lanzce G. Douglass, Inc.,
Lanzce G. Douglass Investments, LLC, and Lanzce G. Douglass, interested
parties, having filed motions to publish opinion, and the hearing panel having
reconsidered its prior determination and finding that the opinion will be of
precedential value; now, therefore it is hereby:
ORDERED that the unpublished opinion filed November 2, 2009, shall be
published and printed in the Washington Appellate Reports.
Done this _____ day of _________________, 2010.
_______________________________
__________________________________
________________________________
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
PHOENIX DEVELOPMENT, INC.,
a Washington corporation, and G&S
SUNDQUIST THIRD FAMILY
LIMITED PARTNERSHIP,
a Washington limited partnership,
Appellants,
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NO. 62167-0-I
DIVISION ONE
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No. 62167-0-I / 3
v.
CITY OF WOODINVILLE, a
Washington municipal corporation,
and CONCERNED NEIGHBORS OF
WELLINGTON, a Washington
nonprofit corporation,
Respondents.
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UNPUBLISHED OPINION
FILED: November 2, 2009
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
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.1 In June 2004,
Phoenix asked the city to amend the zoning map for these two parcels to rezone
each from R-1, which allows one dwelling unit per acre, to R-4, which allows up
to four dwelling units per acre2 and submitted applications for subdivision
1
Hearing Examiner’s Wood Trails Decision (WTHE), May 16, 2007, at 4;
Hearing Examiner’s Montevallo Decision (MHE), May 16, 2007, at 4.
2
WTHE Ex. 17; MHE Ex. 17.
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No. 62167-0-I / 4
approval. The preliminary plat applications proposed subdividing each parcel
into 66 single-family residential lots3 and included the transfer of 19 density
credits from Wood Trails to Montevallo to achieve the desired number of lots on
the smaller Montevallo parcel.
Because only nine density credits could be
transferred, the number of lots in the Montevallo proposal was reduced to 56.4
City staff prepared a draft environmental impact statement (DEIS)
analyzing the alternatives and impacts
proposals.
of the
Wood Trails and Montevallo
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
3
4
WTHE at 4-5; MHE at 4.
MHE at 4-5.
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No. 62167-0-I / 5
lots on the Montevallo property (attached housing alternative), and (3) no
development on either site (no action alternative).
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 These tables show that the majority
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No. 62167-0-I / 6
of the significant unavoidable adverse impacts for the proposed action are also
likely to occur under the R-1 zoning alternative. The FEIS concludes that “[a]ll
likely impacts could be mitigated by a redesign—by adopted City regulations
and/or by elements incorporated into the design of the proposal—to a level that
is considered less than significant.”6
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.[7]
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
5
FEIS at 1-10 through 1-43.
FEIS at 1-9.
7
WMC 21.44.070.
6
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No. 62167-0-I / 7
upon relevant City plans, policies, goals, and timeframes.”8 Staff recommended
approval of the requested rezones as long as the “demonstrated need”
requirement was met. Staff recommended that the rezone approvals be subject
to a number of conditions, including mitigation measures to protect the
environment, fire department access requirements, park and transportation
impact fees, tree retention, and surface water management.
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).9
The hearing examiner
recommended that the city council approve the rezones from R-1 to R-4. The
hearing examiner also recommended approval of the subdivision of Wood Trails
into 66 lots with the transfer of nine lots to Montevallo and the subdivision of
Montevallo into 56 lots, subject to numerous conditions.10 In the decision for
each property, the hearing examiner clearly set forth the R-4 rezone criteria,
applied those criteria to his findings, and concluded that all criteria were met.
On August 20, 2007, the city council entered findings, conclusions, and
decision denying Phoenix’s requests to rezone Wood Trails and Montevallo from
8
Wood Trails Staff Report at 32; Montevallo Staff Report at 27.
WTHE at 23-40; MHE at 22-35.
10
WTHE at 16-22; MHE at 15-20.
9
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No. 62167-0-I / 8
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.11 The council, in its “legislative capacity,” found that the existing R1 zoning designation was appropriate for Phoenix’s property.12
In its “quasi-
judicial capacity,” the city council concluded that the rezones would be
“inconsistent
with
significant
Comprehensive
Plan
Policies,”
that
the
“demonstrated need” criterion in WMC 21.44.070 had not been met, and that
the rezones did not “bear a substantial relationship to the public health, safety,
morals or welfare” as required by case law.13 The council concluded that public
services in areas serving the Wood Trails and Montevallo proposals were not
adequate14 and that the city could not provide adequate services to those
parcels in the near-term because the resources were already committed under
the city’s capital improvement plan for infrastructure in other parts of the city,
such as the downtown area, which the city council had previously selected for
focused growth.15 The council found that additional public services were needed
to support the proposed developments, that reallocating capital resources to the
11
City Council’s Montevallo Decision (MCC), August 20, 2007,
Conclusion 9; City Council Wood Trails Decision (WTCC), August 20, 2007,
Conclusion 9.
12
WTCC Findings 6.d, 9, 10.
13
MCC Conclusion 1, Finding 13; WTCC Conclusion 1, Finding 14.
14
MTCC Conclusion 2, Findings 11-25; WTCC Conclusion 2, Findings 1326.
15
MCC Findings 15-26, Conclusions 2-8; WTCC Findings 15-27,
Conclusions 2-8.
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No. 62167-0-I / 9
subject area would be premature and inefficient, and that the mitigation
measures that the developments would contribute, such as impact fees, would
not correct the public service deficiencies.16
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
The denial of a site-specific rezone is a land use decision.17
The Land
Use Petition Act (LUPA), chapter 36.70C RCW, provides the exclusive means
for judicial review of a land use decision, with the exception of those decisions
subject to review by bodies such as the growth management hearings boards.18
Courts review denial of a site-specific rezone under LUPA19 and may grant relief
only if a petitioner has met its burden of establishing one of the following
standards:
(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;
16
MCC Findings 24-25; WTCC Findings 25-26.
Woods v. Kittitas County, 162 Wn.2d 597, 610, 174 P.3d 25 (2007)
(citing RCW 36.70B.020(4)).
18
Woods, 162 Wn.2d at 610.
19
Woods, 162 Wn.2d at 616.
17
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No. 62167-0-I / 10
(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.[20]
In reviewing a land use decision, this court stands in the same position as the
superior court.21 Standards (a), (b), (e), and (f) present questions of law that we
review de novo.22
When
reviewing a challenge to the sufficiency of the
evidence under subsection (c), we view facts and inferences in a light most
favorable to the party that prevailed in the highest forum exercising fact-finding
authority, in this case the city and CNW.23 The clearly erroneous test under (d)
involves applying the law to the facts.24
Analysis
A.
Legislative Findings
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
20
RCW 36.70C.130(1).
Habitat Watch v. Skagit County, 155 Wn.2d 397, 405-06, 120 P.3d 56
(2005) (quoting Wenatchee Sportsmen Ass’n v. Chelan County, 141 Wn.2d 169,
176, 4 P.3d 123 (2000)).
22
J.L. Storedahl & Sons, Inc. v. Clark County, 143 Wn. App. 920, 928,
180 P.3d 848 (2008).
23
Woods, 162 Wn.2d at 617.
24
Storedahl, 143 Wn. App. at 928.
21
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No. 62167-0-I / 11
agree.
A site-specific rezone request is a quasi-judicial decision that the council
must
evaluate
under
legislatively
established
criteria,
including
the
comprehensive plan policies and other development regulations, which constrain
the council’s discretion.25
A quasi-judicial action involves the application of
existing law to particular facts rather than the creation of new policy.26 Thus,
when acting in its quasi-judicial capacity, the council is limited to interpreting
existing policies and applying those policies to the particular facts relevant to its
decision. By invoking its legislative authority midway through the quasi-judicial
proceeding, the council adopted a new policy rather than applying existing
policies and regulations. We therefore hold that finding of fact 6 in both the
Montevallo and Wood Trails decisions is the product of an unlawful exercise of
the council’s legislative authority.
B.
Rezone Denials
An applicant may challenge the denial of a rezone request on the basis
that a local jurisdiction did not follow its own development regulations.27 Local
development regulations, including zoning regulations, directly constrain land
use decisions. 28 Here, Phoenix alleges that the city council failed to follow the
25
Storedahl, 143 Wn. App. at 931.
See Chaussee v. Snohomish County Council, 38 Wn. App. 630, 63435, 689 P.2d 1084 (1984).
27
Woods, 162 Wn.2d at 616.
28
Woods, 162 Wn.2d at 613.
26
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No. 62167-0-I / 12
city’s zoning code when it denied the rezone requests.
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.29 When a proposed rezone implements the policies
of a comprehensive plan, the proponent is not required to demonstrate changed
circumstances.30
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.
The Woodinville zoning code contains purpose statements for various
zones and map designations. The code requires that these purpose statements
29
Citizens for Mount Vernon v. City of Mount Vernon, 133 Wn.2d 861,
875, 947 P.2d 1208 (1997).
30
Bjarnson v. Kitsap County, 78 Wn. App. 840, 845-46, 899 P.2d 1290
(1995) (citing Save Our Rural Environment v. Snohomish County, 99 Wn.2d 363,
370-71, 662 P.2d 816 (1983)).
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No. 62167-0-I / 13
are to be used to guide application of the zones and land use regulations within
the zones.31
WMC 21.04.080 describes the purpose of the city’s urban
residential 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 . . . .
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.”32 The council further concluded that
31
32
WMC 21.04.020
MCC Conclusion 2.
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No. 62167-0-I / 14
there was no demonstrated need for the proposed rezones, that the rezones
were inconsistent with significant comprehensive plan policies, and that the
rezones did not bear a substantial relationship to public health, safety, morals, or
welfare.
1. Adequate Services under WMC 21.04.080
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.
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 sitespecific zoning decisions. The city notes that WMC 21.44.070 does not refer to
any purpose statement.
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
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No. 62167-0-I / 15
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.
To satisfy certain requirements of the Growth Management Act (GMA),
chapter 36.70A RCW, the city adopted its GMA comprehensive plan on June 24,
1996.33 In Hensley v. City of Woodinville,34 several policies contained in the
comprehensive plan were challenged before a growth management hearings
board, including policy LU-3.6: “Allow densities higher than one dwelling unit
per acre only when adequate services and facilities are available to serve the
proposed development.” The board interpreted LU-3.6 to prohibit development
in excess of one dwelling unit per acre unless sewer service is available and
held that it was inconsistent with a GMA policy.35
The board stated, “Woodinville may not engender or perpetuate a nearterm land use pattern (one-acre lots) that will effectively thwart long-term
(beyond the twenty-year planning horizon) urban development within its
boundaries.”36 The board remanded policy LU-3.6 to the city with instructions to
either delete it or amend it consistent with the holdings and conclusions in the
33
City of Woodinville Ordinance No. 175.
No. 96-3-0031, 1997 WL 123989 (Cent. Puget Sound Growth Mgmt.
Hr’gs Bd. February 25, 1997) (Hensley I).
35
Hensley I, at 8.
36
Hensley I, at 7.
34
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No. 62167-0-I / 16
board’s opinion.37
The city did not appeal the board’s decision and deleted
policy LU-3.6 from its comprehensive plan.38
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.
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.
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
37
Hensley I, at 11.
Hensley v. City of Woodinville, No. 96-3-0031, 1997 WL 816261 (Cent.
Puget Sound Growth Mgmt. Hr’gs Bd. October 10, 1997) (Hensley II).
38
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No. 62167-0-I / 17
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.[39]
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.[40]
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.
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.
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
39
40
MCC Finding 24; WTCC Finding 25.
MCC Conclusion 5; WTCC Conclusion 5.
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No. 62167-0-I / 18
were “unavoidable adverse impacts to transportation systems” identified by the
FEIS which “can be avoided by denial of the rezone.”41
Because WMC
21.04.080(1)(a) requires a zoning density of R-4 or greater unless “adequate
services cannot be provided,” a finding of “unavoidable adverse impacts” is
insufficient to justify the council’s decision.
Furthermore, the finding is not
supported by the record. The FEIS states that “none of the alternatives would
generate sufficient additional traffic or changes in traffic patterns to cause
significant impacts to the existing level of service . . . .”42 The FEIS also states
that the R-1 development alternative—the development the city now suggests
Phoenix can build—would actually generate more daily traffic on some streets
than the proposed action, due to the differences in access plans between the
alternatives.43
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.”44 The hearing
examiner concluded that “the Woodinville code in place when this application
vested, stated that this property could not be developed as R-1 because utilities
are available.”45 Although it now argues otherwise, the council also recognized
41
MCC Conclusion 9; WTCC Conclusion 11.
FEIS at 3.5-94.
43
FEIS 3.5-73.
44
MHE at 9.
45
MHE at 10; WTHE at 11.
42
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No. 62167-0-I / 19
in its findings that it was required to determine whether adequate services could
be provided.46 Viewing the record as a whole, substantial evidence does not
support the conclusion that adequate services cannot be provided to Wood
Trails and Montevallo.
2.
Demonstrated Need
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.”
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.47 Finally, the hearing examiner considered evidence presented
46
MCC Finding 6; WTCC Finding 6.
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No. 62167-0-I / 20
by Phoenix that the city used a flawed analysis in reaching the conclusion that
additional R-4 zoning was not needed. He also considered evidence that land
zoned R-1 constitutes approximately 30 percent of the total area of the city and
approximately 50 percent of the residentially zoned land, while available land
zoned R-4 constitutes less than 2.7 percent of the city.48 The hearing examiner
concluded,
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 [sic] 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.[49]
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
47
MHE Finding 13; WTHE Finding 13.
MHE Finding 14; WTHE Finding 14.
49
MHE Conclusion 2.A at 10; WTHE Conclusion 2.A at 10.
48
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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
Land use decisions must generally conform to the jurisdiction’s
comprehensive plan.50 In addition, WMC 21.04.070 requires that a rezone be
consistent with the city’s comprehensive plan and applicable functional plans.
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.”51
The hearing
examiner found that the proposals were “reasonably compliant with the
Woodinville Comprehensive Plan,” and adopted and incorporated the relevant
portions of the staff report into his decision. The hearing examiner specifically
found that
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
50
51
Woods, 162 Wn.2d at 613.
Montevallo Staff Report at 16; Wood Trails Staff Report at 20.
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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.[52]
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.
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.53 The issue in Hensley I was whether Woodinville’s comprehensive
plan violated the GMA. That is not identical to the issue here, which is judicial
review of the city’s denial of two site-specific rezones. Thus, collateral estoppel
52
MHE at 8, WTHE at 9.
City of Arlington v. Cent. Puget Sound Growth Mgmt. Hr’gs Bd., 138
Wn. App. 1, 24-25, 154 P.3d 936 (2007).
53
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does not apply.
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.”54 In Hensley I, the board held that former LU-3.6, which
provided that Woodinville would “[a]llow densities higher than one dwelling unit
per acre only when adequate services and facilities are available to serve the
proposed development,” was inconsistent with goal U-3 of the comprehensive
plan, which required connection to the wastewater system when development or
subdivision of land occurs at a density greater than one unit per acre, and the
GMA goal that cities make urban services available within urban growth areas.55
To resolve the inconsistency and bring the comprehensive plan into compliance
with the GMA, Woodinville deleted LU-3.6 from the comprehensive plan.56 The
council found that “[t]he R-1 zoning is consistent with the ‘Low Density
Residential’ land use designation described in the City’s Comprehensive
Plan . . . .”57
However, as the hearing examiner pointed out, R-4 is also
considered low density zoning under WMC 21.04.080(1)(a).
54
Hensley I, at 7.
Hensley I, at 8.
56
Hensley II, at 2.
57
MCC at 2; WTCC at 2.
55
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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.58 The FEIS identifies no inconsistencies between the
proposed rezones and the land use policies in the comprehensive plan. The
proposed action was described as more consistent than the R-1 zoning
alternative in regard to both housing policies discussed in the FEIS.
No
inconsistencies were found with the community design policies or the capital and
public facilities policy.
All of the alternatives had similar impacts on the
environmental policies, but no major inconsistencies were identified.
For
example, all alternatives would cause permanent loss of the wetland on the
Wood Trails site. The proposed action and attached housing alternative would
cause some wetland impacts on the Montevallo site that would be avoided by
the R-1 zoning alternative but would be more protective of water quality in
downstream areas than the R-1 zoning alternative.
Similarly, the proposed
action and attached housing alternative “might be a net improvement in quality in
waters downstream from the subject sites” while the R-1 zoning alternative was
described as “less protective of stream functions and values.”59 The staff report
also contains a discussion of these specific comprehensive plan policies and
58
59
EIS 3.4-22 through 3.4-28.
FEIS 3.4-27.
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concludes that the proposals comply with the policies of the comprehensive
plan.60
The council erred when it concluded the proposed rezones were
inconsistent with the comprehensive plan.
4.
Substantial Relationship to the Public Health, Morals, or Welfare
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.
In Henderson v. Kittitas County,61 Division Three held that a rezone that
furthered the goals of a comprehensive plan was a benefit to the public health,
safety, morals and welfare. The court stated that “[t]he primary benefit of the
rezone . . . is that it furthers the goals of the comprehensive plan to increase
diverse uses of rural county lands and to decrease ‘rural sprawl.’” 62 Here, the
hearing examiner relied on Henderson to conclude that the proposed rezones
promoted the public health, safety, morals, and welfare because they were
consistent with the comprehensive plan.
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
60
Montevallo Staff Report at 10; Wood Trails Staff Report at 13.
124 Wn. App. 747, 756, 100 P.3d 842 (2004).
62
Henderson, 124 Wn. App. at 756.
61
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evaluated by the city in the FEIS.63 The proposed action also furthers LU-1.3,
the city’s goal of phasing growth and municipal services together, by extending
sanitary sewer, building on-site storm drainage facilities, and making street
frontage improvements.64
The proposed action furthers LU-3.7 and housing
policy H-1.1 by increasing the variety of housing types and lot sizes in the area,
which is currently developed as large one-acre residential lots.65
The proposed rezones further a number of comprehensive plan policies
and therefore bear a substantial relationship to the public health, safety, morals,
and welfare.
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
63
FEIS, 3.4-22.
FEIS at 3.4-23.
65
FEIS at 3.4-24.
64
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denial of the rezones and remand to the city to grant the rezones.
C.
Preliminary Plat Application
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
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, 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
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rezones, we reverse the denial of the rezones and remand for reconsideration of
Phoenix’s preliminary plat applications.
Reversed and remanded.
WE CONCUR:
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