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The Unassailable Right to Make Any Decision You Want: Avoiding Judicial Intervention in Local Land Use Decision Making

By Phil Olbrechts, Attorney, Olbrechts and Associates, PLLC

You are an elected councilmember, chosen by your community to make decisions on its behalf. People like you. Yet any superior court judge in your county can single-handedly toss out a decision of your entire city council if the judge decrees your council violated the constitution or some state or federal law. Are there any decisions out of reach of your local superior court judge?

In a word, yes! Some city council decisions are a matter of "legislative discretion" and superior court judges can't touch them. Specifically, if you deny a request to amend your comprehensive plan, in most cases NOBODY, including superior court judges, can reverse your decision. In a couple recent State Supreme Court decisions, the Supreme Court has drawn a line that judges can't cross to rule on local land use decision making. Understanding that line is critical to setting up a decision making process that minimizes judicial intervention in land use decision making.

The two Court decisions that "draw the line" address two sometimes very similar city council decisions: (1) whether to amend your comprehensive plan; and (2) whether to approve a site specific rezone. In some cases these two types of decisions are so similar they border on the identical. As many of you already know, your city is required[1] to have a map in your comprehensive plan (often called a "future land use map") and a map in your zoning code (usually called the "zoning map") that designates land uses for the various portions of your city. Many cities and counties make the maps identical[2], so that the uses designated in the comprehensive plan map are exactly the same as those designated in the zoning map. Amendments to these comprehensive plan and zoning maps are often processed concurrently in the same hearings, and the public and the city council itself is only marginally aware that not one but two maps are actually subject to revision.

Despite the similarities in decision making for comprehensive plans and zoning maps, the authority of judges to intervene in those decisions is markedly different. If you make a decision on a site specific amendment to a zoning map and someone appeals the decision to superior court, a judge can reverse your decision. If you approve an amendment to your comprehensive plan, including an amendment to your comprehensive plan map, a judge can't alter or reverse your decision. However, your decision can still be appealed to one of the Growth Management Hearings Boards, a group of people appointed by the governor who have the authority to reverse your approval[3]. Note that so far I've only addressed the approval of a comprehensive plan amendment.

The best part is saved for last: who gets a shot at your decision to NOT amend your comprehensive plan? If someone walks into City Hall and demands that the city council amend the residential comprehensive plan map designation for their property, what can that person do if you simply say "take a hike"? The amazing answer is usually, NOTHING! If you say no to that person, in the vast majority of cases there is no one that has the authority to reverse your decision. No one is entitled to a comprehensive plan amendment. That is legislative discretion in its absolute purist form!

The "draw the line" cases have some practical application that can be used to structure your decision making process in a manner that minimizes judicial intervention. If you're a practical minded person who just wants to know what to do and don't get excited by the legal basis for this strange situation, skip over the next section to "Practical Stuff." Otherwise read on for a legal treat[4].

The Two Amazingly Fascinating Land Use Court Cases

Let's start with the bad news first, Phoenix Development, Inc. v. Woodinville, 171 Wn.2d 820 (2011). Phoenix involved an upzone of a couple parcels totaling 55 acres from a zoning map designation of one dwelling unit per acre (R-1) to four units per acre (R-4) in the City of Woodinville. For those of you who are familiar with Woodinville, you know that it is uniquely characterized by low density development. Nestled amongst its beautiful vineyards are upscale residences woven into a tapestry of horse pastures, sprawling lawns and thousands of acres of trees. So a developer proposal to build a Spielberg neighborhood of urban density homes cascading in neat rows as far as the eyes can see was bound to generate some controversy.

The battle for the rezone before the Woodinville City Council was ferocious. As part of its undoing, Woodinville had adopted detailed standards for the approval of site specific rezones. Most notably a rezone applicant had to establish a "demonstrated need" for a rezone in order to secure approval. This criterion in turn invoked the principles of the Growth Management Act, Chapter 36.70A RCW ("GMA"), most significant that cities should accommodate urban growth and a variety of urban densities. So the developer hires an army of experts who produce an arsenal of studies establishing that the upzone is necessary to accommodate Woodinville's share of urban growth and to provide a variety of urban densities. The besieged planning staff fortifies their position with a wall of their own studies arguing the opposite. The citizens pack the Council chambers demanding denial. The City Council acts for their constituency and denies the upzone.

The City Attorney was tasked with writing up the findings of fact and conclusions of law supporting the denial. The City Attorney cleverly characterized the decision in the written conclusions as an exercise of "legislative capacity." Why? Because the separation of powers doctrine[5] prohibits, to a certain extent, the courts from exercising legislative powers. The City Attorney had good reason to invoke the "legislative capacity" card. Unlike most other land use permitting decisions, such as conditional use permits, variances and subdivisions, a city council is required to make the final decision on a rezone and it must do so by ordinance. These are all the hallmarks of a legislative act. Courts try not to interfere with legislative acts. In writing that the Council was acting in its "legislative capacity," the City Attorney was hoping to prevent judicial intervention. It didn't work. Not only did Division I of the Washington State Court of Appeals fail to give any significance to the "legislative capacity" card, it actually ruled that it was error to characterize it that way. The fact that an ordinance was involved and that the City Council was required to make the final decision did not impress the Court of Appeals. What made the difference was the Land Use Petition Act ("LUPA"), Chapter 36.70C RCW. LUPA governs the judicial appeal of land use decisions made by cities and counties. LUPA is the exclusive means of judicial review of "land use decisions", which is defined to include final decisions on "project permit applications", which in turn is defined to include site specific rezone applications. See RCW 36.70C.030; 36.70C.020(1)(a) and 36.70B.020(4). LUPA sets judicial standards for the review of land use decisions. It expressly provides that a superior court may reverse a land use decision if the decision fails to satisfy those standards. As a project permit application, a rezone is subject to reversal by a superior court just like any other project permit application.

And, almost forgot to mention, the Court of Appeals reversed the city council denial of the rezone application. The Court concluded that "[b]ecause the proposed rezones meet all statutory and common law requirements for rezones, we reverse the denial of the rezones…"

Fortunately for Woodinville, the State Supreme Court was more charitable in its review of the denial. It agreed that a rezone can be reversed on judicial appeal, but didn't find reversal justified in the case before it. A primary difference between the Court of Appeals and Supreme Court levels of review was that the Supreme Court reasoned that a court has to give deference to a city's decision making when addressing policy issues governed by the GMA, as well as its findings of fact and its interpretation of its own ordinances. With this deference weighing in, the scales of justice tipped in favor of Woodinville. This deference creates a substantial obstacle to anyone desiring to challenge a rezone decision. The deference on GMA policy choices is also a partial acknowledgment that a site specific rezone has the attributes of a legislative act. Nonetheless, the most significant part of the Court of Appeals decision remains intact: a rezone decision can be reversed by a superior court.

Now on to the good news, Stafne v. Snohomish County, 174 Wn.2d 24 (2012). In Stafne, Mr. Stafne asked the Snohomish County Council to place a comprehensive plan map amendment he was proposing onto the County's yearly comprehensive plan amendment docket. With a boundary line adjustment, Mr. Stafne had added some adjoining property to his lot that he had purchased from the Washington State Department of Natural Resources ("DNR"). His lot (prior to the addition of the DNR property) was designated Low Density Rural Residential and the adjoining property he purchased from DNR was designated Commercial Forest Land and Forest Transition Area. He wanted the designations on the DNR property to match up with the Low Density Rural Residential designation of the rest of his lot. The Snohomish County Council declined to add his requested amendment to the yearly docket. Mr. Stafne appealed the denial to superior court under LUPA. The superior court tossed his appeal out, ruling that comprehensive plan amendments, even site specific comprehensive plan amendments, aren't land use decisions subject to LUPA.

Mr. Stafne went all the way to the State Supreme Court with his appeals, arguing that his only other avenue would have been to appeal the County Council's refusal to consider his amendment to the Puget Sound Growth Management Hearings Board. He pointed out that such an appeal would have been futile since the Board has ruled it has no jurisdiction to consider the local denial of a requested comprehensive plan amendment. The State Supreme Court noted that the Board would still retain jurisdiction if some law mandated a comprehensive plan amendment, and that if there were no such mandate there would simply be no appeal available:

We agree with the board's determinations in cases like Cole and SR 9/US 2 LLC. County and city councils have legislative discretion in deciding to amend or not amend their comprehensive plans. Absent a duty to adopt a comprehensive plan amendment pursuant to the GMA or other law, neither the board nor a court can grant relief (that is, order a legislative discretionary act). In other words, any remedy is not through the judicial branch. Instead, the remedy is to file a proposal at the County's next annual docketing cycle or mandatory review or through the political or election process. (174 Wn.2d at 37.)

Be sure you understand the quoted language above. In most cases a citizen will not be able to point to a statute requiring the city council to amend its comprehensive plan. It is difficult to conceive of any set of circumstances where a citizen could truthfully tell a city council "you are required by state law to amend your comprehensive plan as I've requested, right now."[6] This means that in most cases where the city council refuses to amend its comprehensive plan, that private citizen will have nowhere to appeal the council decision except the court of public opinion at the next election.

Keep in mind that although the Stafne decision only applied to a docketing request, its reasoning applies to any request to amend a comprehensive plan, not just the comprehensive plan map. Almost any time the city council decides to deny a request to amend its comprehensive plan, there's no appeal right to that decision. Don't get confused though. The Snohomish County decision only applies in situations where the city council decides to NOT amend its comprehensive plan. If the council approves an amendment, it will be subject to appeal to a GMA Hearings Board, which does have the authority to reverse the decision if it fails to comply with the requirements of the GMA.

The Practical Stuff

Beyond being legally fascinating, the Phoenix and Stafne cases highlight what you can do to your land use regulations if you want to minimize judicial meddling. A couple options:

  1. Make your comprehensive plan map identical to your zoning map. One of the most significant results of the Phoenix and Stafne cases is that there is now a compelling reason to make your comprehensive plan maps identical to your zoning maps. If the two maps are identical, an applicant can't get a zoning map amendment approved without having the comprehensive plan map amendment approved first. This is because any amendment to the zoning map must be consistent with the comprehensive plan map. See RCW 36.70A.120. So in the identical map situation you can deny a requested comprehensive plan map amendment for practically any reason you want and the applicant has no right of appeal. The applicant does have a right of appeal to a denial of the same change to the zoning map, but you have no trouble defending that denial on the grounds that the zoning map amendment must be consistent with the comprehensive plan map (an example that clarifies this is coming up).

    Contrast the above-scenario with a comprehensive plan that isn't identical with the zoning map. Say that your city has a comprehensive plan map designation of "single-family residential" and that this designation in turns allows zoning map designations of R-1, R-2 and R-4, with each designation allowing densities of one dwelling unit, two dwelling units and four dwelling units per acre respectively. If an applicant wants to change a designation from R-1 to R-4, no comprehensive plan map amendment would be necessary since the comprehensive plan map authorizes both zoning designations for the applicant's property. The applicant just has to apply for a rezone from R-1 to R-4 and the applicant can appeal to superior court if his request is denied. This is probably what happened in the Phoenix case. If Woodinville had a comprehensive plan map that only allowed R-1 zoning, the City Council could have denied a request to change the comprehensive plan map to R-4 and there's nothing the applicant could have done about it. With the comprehensive plan set at R-1 with no right of appeal, the applicant couldn't request a zoning map change to R-4 because the zoning map has to be consistent with the comprehensive plan R-1 designation.

    Note that I didn't say in the preceding paragraph that the Phoenix and Stafne cases make it imperative for your zoning maps to be identical to your comprehensive plan maps. There's still also a good reason to keep them different - flexibility. The GMA only allows comprehensive plan map amendments once per year, subject to a few exceptions. See RCW 36.70A.130(2)(a). So if your maps are identical and you have a situation where you need to amend your zoning map ASAP (e.g. Microsoft wants to build a multimillion dollar complex in your industrial zone and it needs a rezone amendment NOW), you have to wait until the next comprehensive plan amendment cycle to do the amendment. As a city attorney I don't know how many times I've had to justify some debatable "emergency" (one of the exceptions to the once per year rule) to support a comprehensive plan amendment outside the yearly amendment cycle. Theoretically, a comprehensive plan should be a general policy document that is implemented in more detail in the zoning code and other development regulations. A comprehensive plan map that is more general than a zoning map fits this paradigm well and provides for the flexibility that's necessary to respond to those Microsoft opportunities. Personally, I vote for flexibility over obstructing judicial review, but which factor takes precedence is dependent upon the political and legal climate of your jurisdiction.

  2. Keep your decision making criteria broad for legislative (or legislative-type[7]) decisions. Another practical consideration resulting from the Phoenix and Stafne cases is the importance of keeping your standards broad for legislative or legislative-type decisions such as site specific rezones and comprehensive plan amendments. Woodinville wasn't required to adopt any standards for the review of its site specific rezones and indeed many jurisdictions don't have any. The courts themselves have made up their own standards, requiring that for a rezone to be approved: (1) There is no presumption of validity favoring the action of rezoning; (2) the proponents of the rezone have the burden of proof in demonstrating that conditions have changed since the original zoning; and (3) the rezone must bear a substantial relationship to the public health, safety, morals or welfare. As an alternative to the "changed circumstances" criterion, an applicant may demonstrate that the proposed rezone implements the comprehensive plan. Citizens v. Mount Vernon, 133 Wn.2d 861, 875 (1997); Bjarnson v. Kitsap County, 78 Wn. App. 840, 845 (1995). If you choose to make your standards more specific, you're just asking for trouble. You may box yourself into a corner where you have no option but to approve. It's relatively easy to come up with a conclusion that a proposed rezone fails to bear a substantial relationship to public health, safety and welfare under the judicial rezone standard. Even if there are reasons that support a contrary conclusion, a court will defer to your findings and conclusions and often sustain your decision. However, if you adopt specific criteria such as Woodinville's "demonstrated need" for a rezone, this gives the applicant an opportunity to establish compliance through fairly objective population projections and other statistical analysis. Once you go down that path it becomes more difficult to come up with a defensible counter-argument.

    Similar reasoning applies to comprehensive plan amendments. Any amendments you approve will have to be consistent with the GMA in order to survive an appeal to a GMA hearings board, so you will want to assure that your approvals are supported by detailed findings of fact and conclusions of law that establish that compliance. However, as previously discussed you can deny an application for a comprehensive plan amendment for practically any reason you want. So why bog yourself down with detailed standards for denial that take up a lot of staff resources and council time? There's also still room to argue that a denial could be overturned, or result in liability, because it violates a constitutional right[8]. A detailed set of standards simply creates more opportunities for a permit applicant to argue that they meet the rare circumstances where they can have a denial reversed on appeal. Some attorneys may disagree with this position, but it does appear that the best local standards for comprehensive plan amendment review require detailed findings and conclusions establishing consistency with the GMA for approval, but correspondingly minimal standards and summary findings and conclusions or none at all for denial.

[1] That's assuming your city is subject to all of the planning requirements of the Growth Management Act, Chapter 36.70A RCW ("GMA"). RCW 36.70A.040(1) identifies what cities are subject to the GMA, based upon population growth rates. Many cities not subject to GMA choose to have comprehensive plan and zoning maps anyway. For those of you looking for the specific map requirements, the introduction to RCW 36.70A.070 requires the comprehensive plan to include "a map or maps" with RCW 36.70A.070(1) requiring a land use element that designates land uses. RCW 36.70A.040(3) requires GMA cities to adopt development regulations that are consistent with and implement the comprehensive plan.

[2] I know of at least one jurisdiction that doesn't even bother to have two separate maps. Technically I would argue that the maps should be separate, and technically no one else would care.

[3] Which, admittedly, can in turn be appealed to a Court of Appeals judge.

[4] Ok, I'm taking some liberties here. Those of you who have been involved in the legal system know there's no such thing as a "legal treat" unless you get paid $350 per hour. Most notably, if you're the person paying the person who gets paid $350 an hour you can no longer afford a treat of any kind and your PTSD would prevent you from enjoying a treat even if it were gifted to you in a brightly colored package.

[5] The powers of local government, like for state and federal, are divided into the legislative, executive and judicial branch.

[6] Throughout the years, the state legislature has added requirements to the GMA that cities and counties must incorporate into their comprehensive plans. However, none of these GMA amendments empowered citizens to run to their city council to demand an immediate amendment to the city's comprehensive plan. Rather, the cities have been required to incorporate the GMA amendments into their comprehensive plans in the periodic GMA "updates" mandated by the GMA every seven or so years. See RCW 36.70A.130. Citizens could appeal the updates for not incorporating the GMA amendments, but outside of the GMA update cycle citizens had no authority to demand an amendment.

[7] For the attorneys out there I know full well there's no such thing as a "legislative-type" decision and that the Phoenix case expressly categorized a site specific rezone as quasi-judicial. However, a site specific rezone still has some legislative features and in order to distinguish it from other types of land use decisions where specific permit criteria should be adopted, I'm calling a rezone a "legislative-type" decision.

[8] It would take another article to address that issue and is not worth the effort because it's unlikely that any council would make a legislative decision so terrible that a judge would find it necessary to invoke jurisdiction

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About Phil Olbrechts