The Multi-Personalities of Site Specific Rezones - Or - A Cheat Sheet for Everything You Need to Know about Site-Specific Rezones

By Phil Olbrechts, Olbrechts and Associates, PLLC

We just can't help ourselves. We have to categorize everything. Put them into neat little boxes. We especially like to do that in the laws we pass. Land use laws are no exception. We start the boxing process for land use laws by throwing an issue in either the “legislative” or “permitting” box. That's usually an easy task. Except for site specific rezones. Sometimes site specific rezones act like a piece of legislation, other times a permit, and more often than not they're a little bit of each. This does not make the legislative bill writers happy, but does keep the lawyers busy and well fed. This article is your cliff notes on dispelling the mysteries and multiple personalities of the ubiquitous site specific rezone. Once you've digested its contents, you will be able to amaze your friends at cocktail parties¹ with your in-depth knowledge. Or you can just toss this article into an agenda packet as background material for those times your city council or planning commission is considering a site specific rezone.

A Site-Specific Rezone Must be Adopted by Ordinance by the City Council

All site specific rezones for cities must be adopted by ordinance adopted by a city council.

Ordinances are by definition legislative. They can only be adopted by a city council. Zoning maps are required by the Growth Management Act, chapter 36.70A RCW, and all other city planning enabling legislation to be adopted by ordinance. You can only amend an ordinance by another ordinance. So if you want to amend a small piece of your zoning map (i.e. approve a site specific rezone), it must be approved by ordinance, which must be done by your city council. Planning commissions and hearing examiners can make recommendations on site specific rezones, but the final decision must be made by the city council.

Most people get this. What's not so apparent is that the courts have also ruled that planned unit developments (PUDs) that authorize the approval of densities and uses that are inconsistent with underlying zoning requirements are themselves considered zoning map amendments². As zoning map amendments, they must be adopted by ordinance and approved by the city council. A lot of cities don't get this and have PUD review processes that don't involve ordinances or the city council.

Site-Specific Rezones are Subject to Review Criteria Even if Your City Hasn't Adopted Any

The first hint of trouble in the legislative/permitting boxing process is that the courts will apply review criteria to site specific rezones whether the city has adopted some or not. Many city codes, especially prior to the 1990s, had no review standards for site-specific rezones. The codes would simply provide that the planning commission was to make recommendations on site-specific rezones and the city council adopted them by ordinance. The code didn't say anything about under what circumstances the rezones should be approved. With some justification, cities simply believed that site specific rezones were purely legislative acts and no standards were necessary.

The courts, however, disagreed. They ruled that a site specific rezone was subject to review standards, regardless of whether or not a city had adopted their own. The courts require that the proponents of a rezone must establish that conditions have substantially changed since the original adoption and that the rezone must bear a substantial relationship to the public health, safety, morals or welfare³. If a rezone implements the comprehensive plan, a showing that a change of circumstances has occurred is not required.

So even if your city code has no standards for consideration of site specific rezones, you still have to meet the standards imposed by the courts. Be sure those standards are addressed in the findings and conclusions of your final decision.

A Site-Specific Rezone Is Subject to the Appearance of Fairness Doctrine

Site specific rezones are quasi-judicial⁴, which means they are subject to the appearance of fairness doctrine. For the uninitiated, the appearance of fairness doctrine requires hearings to appear to be fair so that the public can have faith in an impartial permitting process. It's beyond the scope of this article to get into the issue in any detail, but to keep it simple let's just say that there are scores of court opinions involving situations where land use decisions are thrown out because the review process didn't appear to be fair. For this reason, when you hold a hearing on a site specific rezone you can't participate as a decision maker if there's anything about you that could appear to be biased and you're not allowed to discuss the application outside of the public hearing.

Why is this odd? Because just about any other hearing regarding the adoption of an ordinance is not considered quasi-judicial. All text amendments to a comprehensive plan or zoning code, as well as any “area-wide” rezones are not quasi-judicial because those decisions are considered legislative⁵. You can be as biased as you want (excluding some instances of self-interest like bribery) and talk as much as you want to anyone you want outside the hearing process. Even more confusing, a comprehensive plan map amendment to a parcel of property is not subject to the appearance of fairness doctrine even though a site specific rezone for exactly the same parcel is quasi-judicial. The comprehensive plan map/site specific zoning map amendment dichotomy on the appearance of fairness highlights the most dysfunctional depths of the multiple personality of a site specific rezone.

Site Specific Rezones Must Be Decided within 120 Days and are Limited to One Hearing

You can only hold one public hearing on a rezone and you have to issue a final decision within 120 days of the filing of a complete application. The reason is that the Regulatory Reform Act, chapter 36.70B RCW, defines a project permit application to include a site specific rezone⁶ and project permits can only be subject to one public hearing and a final decision must be issued within 120 days of the submission of a complete application⁷.

Superior Courts have Exclusive Jurisdiction to Review Appeals of Site Specific Rezones

The Land Use Petition Act (“LUPA”), Chapter 36.70C RCW,, governs the judicial appeal of all site specific rezones⁸. This is a big deal because decisions subject to LUPA are appealed to superior court and the courts can toss those decisions out if an appeal isn't filed within 21 days of issuance of the decision. All other amendments to zoning and comprehensive plans, including area-wide rezones, have to be appealed to the Growth Management Hearings Board instead of superior court. You get 60 days to file that appeal.

The Courts can Make You Approve a Site Specific Rezone

The courts can make you approve a rezone that your city denied, or deny a rezone that your city approved. LUPA gives the courts the authority to reverse or remand any land use decision and as previously discussed, site specific rezones are subject to LUPA. This is in stark contrast to all other comprehensive plan and zoning code amendments. As noted previously, those amendments can only be appealed to the Growth Management Hearings Board. The Board has no authority to require a city to approve a proposed amendment. All they can do is invalidate or remand amendments.

Although site specific rezones behave very much like permit applications when it comes to judicial review, there are still some vestiges of its legislativeness given some respect by the courts. In a decision issued in 2011,⁹ , the state supreme court recognized that it should give deference to the Growth Management Act policy choices made in a site specific rezone decision. This type of deference would probably not be granted for any other type of permit application, because the objective of all other types of land use permitting decision is to implement Growth Management Act policy choices that have already been made. That policy deference recognizes that there is still a bit of legislating going on when a site specific rezone is under consideration.

Bad Site Specific Rezone Decisions are Not Subject to 64.40 or Section 1983 Damages

Just when you get to the point where you're thinking that it's just a fluke that site specific rezones are adopted by ordinance and that they're really permit applications, they act just like legislation when it comes to permitting liability. At least sometimes.

Probably the two most common sources of permitting liability are “64.40” and “Section 1983 claims”. A “64.40” claim derives from RCW 64.40.010, which provides that a city will be held liable to owners of property for decisions on “an application for a permit” that are arbitrary, capricious, unlawful or exceed lawful authority. The courts recently ruled that a site specific rezone is not “an application for a permit” so 64.40 doesn't apply¹⁰ .

A “Section 1983 claim” refers to a cause of action filed under 42 USC Section 1983. This federal statute allows plaintiffs to recoup damages against municipalities for violating their federal constitutional rights when that municipality is acting under color of state law. One of the key elements to a Section 1983 claim is that the municipality must have infringed upon a protected federal constitutional right. Our state supreme court ruled a few years ago that one of those protected federal rights under the due process clause is to have a permit application processed under the laws that were in effect when a complete application was filed¹¹, i.e. if the permit application meets applicable permitting criteria, the permit holder has a due process right to have that permit approved. The courts recently ruled that applicants do not have a federal due process right to have a rezone application approved even if it meets local rezone criteria¹². This is because a rezone applicant isn't seeking to have a permit processed under the laws in effect; the applicant is seeking to change those laws (i.e. the zoning map). In essence, a site specific rezone isn't subject to Section 1983 damages because it fits in the legislative as opposed to permitting box.

Does this mean you can deny rezones with impunity? Absolutely not. There are other limited circumstances in which you can still be held liable. Most notably if a rezone meets your code criteria and the applicant makes it known to you that he or she has some purchasers for the property ready to write a check once the rezone is approved, you could be held liable for denying the application under “tortious interference with a business expectancy”. Courts often find some way to make cities pay when they act in disregard of their permitting requirements. Also, as discussed in the next section, if it's a really bad decision the courts will reverse your decision anyway.

You can Condition a Rezone

Like any other permit, you can condition a rezone. That's probably best done through the execution of a development agreement¹³. Unlike for a typical permit however, rezone conditions are usually a very bad idea. Typical permit conditions just govern how a specific development is to be constructed and then they disappear, except perhaps with some limitations on the operation of the development. Even under the latter circumstances, those conditions will disappear when the development project disappears (burns to the grounds, stops operating, etc.). Rezone conditions, however, linger. Since they usually address how property is to be used, they outlast whatever development the property owner initially had in mind and then show up 30 years later when they make absolutely no sense given how the property and the vicinity have developed. Just ask any 50+ year old city attorney about what they think of rezone agreements. They'll have fonder memories of their colonoscopy.

1. Do people still actually hold cocktail parties? I wouldn't know. No one has ever invited me for some reason.

2. See Lutz v. City of Longview, 83 Wn.2d 566, 620 P.2d 1374 (1974) Johnson v. City of Mount Vernon, 37 Wn. App. 214, 218, 679 P.2d 405 (1984); Kenart v. Skagit County, 37 Wn. App. 295, 298, 680 P.2d 439 (1984); Citizens for Mount Vernon v. City of Mount Vernon, 133 Wn.2d 861, 874, 947 P.2d 1208 (1997).

3. See Ahmann-Yamane, LLC v. Tabler, 105 Wn. App. 103, 111 (2001).

4. See Smith v. Skagit County, 75 Wn.2d 715 (1969)

5. See RCW 42.36.010

6. Technically, the site-specific rezone must be “authorized by a comprehensive plan or subarea plan” to qualify as a project permit. See RCW 36.70B.020(4).

7. See RCW 36.70B.050; 36.70B.080(1).

8. See RCW 36.70C.020(2); RCW 36.70C.030.

9. See Phoenix Development v. Woodinville, 171 Wn.2d 820 (2011).

10. Manna Funding, LLC v. Kittitas County, 295 P.3d 1197 (2013).

11. Mission Springs v. City of Spokane, 134 Wn.2d 947 (1992).

12. Manna Funding, LLC v. Kittitas County, 295 P.3d 1197 (2013).

13. See RCW 36.70B.170