lupa opening brief final

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PLAINTIFFS’ LUPA OPENING BRIEF - 1

STEPHENS & KLINGE LLP

10900 NE 8th Street, Suite 1325

Bellevue, WA 98004

(425) 453-6206

Hearing Date/Time: December 2, 2015, 9:00 a.m.

Judge: Hon. Richard T. Okrent

SUPERIOR COURT OF WASHINGTON

FOR SNOHOMISH COUNTY

JULIE CARNEY and MICHAEL E. REID,

Plaintiffs,

vs.

WHATCOM COUNTY and BIRCH BAY

WATER AND SEWER DISTRICT,

Defendants.

No. 15-2-04222-8

PLAINTIFFS’ LUPA OPENING BRIEF

Plaintiffs Julie Carney and Michael Reid filed this lawsuit to challenge Defendant

Whatcom County’s denial of a Conditional Use Permit application for the Lincoln Park

Retirement Home Center. The Land Use Petition Act, Chapter 36.70C RCW (LUPA)

governs such challenges, which are based on the Administrative Record and other

supplemental evidence accepted by the Court. Plaintiffs submit this LUPA Opening Brief in

preparation for the hearing/trial on the merits of the Land Use Petition scheduled for

December 2nd

at 9:00 a.m. The County lodged the Certified Record of Proceedings (pp. 1-

2983) with the Court, i.e. the Administrative Record, cited herein as AR: [page no.].

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Bellevue, WA 98004

(425) 453-6206

INTRODUCTION

Plaintiffs are the Property Owners and Applicants on the Project. The Project is the

Lincoln Park Retirement Home Center which proposes 170 retirement suites for residential

assisted care (55 and older) and 68 suites for Alzheimer’s care patients. The Project is on 17

acres and is located in a County designated Urban Growth Area between Birch Bay and City

of Blaine within the service area of the Birch Bay Water and Sewer District. The County

determined that the Project complied with all development regulations in the Urban

Residential UR-4 zoning district and other pertinent requirements. Yet, the County denied

the Project concluding that sewer could not be “extended” to the Project based on

noncompliance with a single provision in the Comprehensive Plan (while ignoring other

provisions). The County improperly elevated the Comprehensive Plan policy to the status of a

rule and effectively superseded the development regulations.

The County’s approach is contrary to a fundamental principle in the Growth

Management Act—individual projects are governed by development regulations and not by

the broad goals and policies of the Comprehensive Plan. As explained by a unanimous State

Supreme Court:

Neither the GMA [Growth Management Act] nor the comprehensive

plans adopted pursuant thereto directly regulate site-specific land use

activities. Instead, it is local development regulations, including

zoning regulations enacted pursuant to a comprehensive plan, which

act as a constraint on individual landowners.

Viking Properties, Inc. v. Holm. 155 Wn. 2d 112, 126 (2005) (citations omitted). The Viking

Properties case was applying the Growth Management Act, Chapter 36.70A RCW (GMA),

which mandates a clear framework in which counties must adopt Comprehensive Plans that

comply with the GMA, and must adopt development regulations that are consistent with the

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GMA and Comprehensive Plan. The Comprehensive Plan is defined by the GMA as, “a

generalized coordinated land use policy statement of the governing body of a county,” while

development regulation is defined to mean: “the controls placed on development or land use

activities.” RCW 36.70A.030(4) and (7) (emphasis added). Based on that framework, the

Viking Properties Court stated the fundamental rule that, “it is local development regulations .

. . which act as a constraint on individual landowners.” The County’s decision in this case

violated this fundamental principle.

Obviously, the County has a different view. The County points to one of the criteria

considered for Conditional Use approval which requires that the proposed conditional use:

Will be harmonious and in accordance with the general and specific

objectives of Whatcom County’s Comprehensive Plan and zoning

regulations.

WCC 20.84.220(1). Though not suggested by County Staff, the County attorney took the

position that this conditional use criteria caused the incorporation of all the policies of the

461 page Comprehensive Plan into the Zoning Ordinance as development regulations

governing individual projects. This radical interpretation was then accepted by the Hearing

Examiner and County Council and required denial based on the single policy purportedly

prohibiting sewer extensions, even though the policy expressly required implementing

development regulations and despite other contrary policies in the Comprehensive Plan.

This case—and the future of the Lincoln Park Retirement Home Center and

Alzheimer’s care facility—hinges entirely on the sewer issue, and whether the County can,

consistent with Growth Management Act, elevate the Comprehensive Plan polices to the

status of development regulations.

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Bellevue, WA 98004

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ADMINISTRATIVE PROCESS AND THE SEWER EXTENSION ISSUE

The following is a summary of the administrative process. As will be explained, the

Court is reviewing the Decision of the Whatcom County Hearing Examiner who had the

authority after a hearing to approve, approve with conditions, or deny the Conditional Use

Permit application, which Decision was then adopted by the County Council. The Hearing

Examiner’s Decision denying the application is entitled Findings of Fact, Conclusions of

Law, and Decision—referred to herein as HE Decision. AR 322-342. For the Court’s

convenience, a copy of the HE Decision is attached hereto as Appendix 1. The HE Decision

begins with a summary (AR 322-323), lists pertinent data (AR 323-324), lists the exhibits

(AR 325-331), provides Findings of Fact beginning with paragraph II on page 10 (AR 331),

sets forth Conclusions of Law starting at page 12, Paragraphs I-VI (AR 333-341), and

concludes with a Decision (AR 341).

Application Filed and Vested. Plaintiffs Julie Carney and Michael Reid filed a

Conditional Use Permit (CUP) application in November 2009 which the County determined

was complete. AR 385. The CUP application sought approval for the Lincoln Park

Retirement Home Center which proposes 170 retirement suites for residential assisted care

(55 and older) and 68 suites for Alzheimer’s care patients. HE Decision at 10, ¶ II, AR 331.

The Project application is vested based on the complete application date, i.e. grandfathered, to

the Urban Residential UR-4 zoning district development regulations in effect prior to 2010

and to the 2005/2009 Comprehensive Plan. Id. The County subsequently zoned the property

to Rural Ten Acres, but those rules do not apply. Id. The Comprehensive Plan designation

for the site is Urban Growth Area with the site split between Short Term Planning Area and

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Bellevue, WA 98004

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Long Term Planning Area. Id.1 The Project site is within the water and sewer service area of

the Birch Bay Water and Sewer District (Id. at 3, AR 324), and the District provided an

availability letter that determined water and sewer service were available. AR 963.

SEPA Compliance. Plaintiffs have numerous complaints about the defective

handling of the application by County Staff from 2010 through 2014. Some of those

complaints will be discussed herein. Eventually, the County complied with the State

Environmental Policy Act (SEPA), and issued a Revised SEPA Mitigated Determination of

Non-Significance in April 2014. AR 944.2 Only one mitigation measure was added because

the Project was so well designed to avoid, minimize, and mitigate environmental impacts,

including protecting an 8-acre wetland with over 45% of the site in protected open space. AR

947. Despite the highly sophisticated and environmentally sensitive public, no environmental

organization or other citizen appealed or otherwise objected to the SEPA determination.

Administrative Process. Under the County administrative process, the County

Hearing Examiner makes a final decision subject to limited appellate review by the County

Council. Whatcom County Code (WCC) 20.92.210, .610.-.720. The Hearing Examiner holds

an “open record hearing” on the conditional use permit application and has the power to

approve, approve with conditions, or deny the application. WCC 20.92.210, .410. The

Lincoln Park Retirement Home Project went forward to the Hearing Examiner for hearing in

December 2014. HE Decision at 4, AR 325.

Staff Report for Hearing. The Staff Report agreed that the Project, whether

classified as a “boarding home” or “retirement home,” was an appropriate conditionally

1 Incredibly, the Staff failed to identify that a portion of the site was in the Short Term Planning Area from 2009

until the hearing in December 2014 and based its determinations and recommendations accordingly. AR 1263. 2 For example, the County’s SEPA responsible official is supposed to make the threshold determination within

90 days after accepting a complete application. RCW 43.21C.031(1).

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Bellevue, WA 98004

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permitted use in the Long Term Planning Area under the Urban Residential (UR) regulations.

AR 1099-1100. 3

Despite this conclusion, the Staff Report took the position that the Project

should be denied based on Staff’s subjective determination, not based on regulations, that the

Project was essentially “too urbanized” for the Urban Residential District and the Urban

Growth Area - Long Term Planning Area. AR 1106-1107. Otherwise, the Staff Report found

that the Project complied with the development regulations for roads, fire service, critical

area/wetlands, etc. The Staff Report then turned to the Conditional Use Permit (CUP) criteria

in the County Code. AR 1103 (citing former WCC 20.84.220(1) – (8); AR 2131). The Staff

Report found fault with the first two CUP criteria which generally required that the Project be:

(1) consistent with the Comprehensive Plan; and, (2) compatible with the neighborhood.4 In

particular, the first CUP criteria required the Hearing Examiner to find that the Project: “Will

be harmonious and in accordance with the general and specific objectives of Whatcom

County’s Comprehensive Plan and zoning regulations.” AR 2131. The Staff Report then

took the position that Project could not be approved under this criterion because a policy in

the Comprehensive Plan prohibits sewer “extensions” into the Long Term Planning Area

portion of the Urban Growth Area citing the following statement: “No sewer shall be

extended outside a Short Term Planning Area.” AR 1105.

Applicant Response. The Applicants/Plaintiffs submitted an extensive 29 page Pre-

Hearing Brief thoroughly deconstructing the numerous flaws in the County position. AR

1047. In particular, on the sewer issue, the Staff Report missed the critical point that the cited

3 Boarding home is defined to include assisted living facilities licensed by the State. WCC 20.97.032 (Boarding

home definition). Thus, due to State licensing under Chapter 18.20 RCW, boarding home appears to be more

correct use, though the Proposal could also be categorized as a retirement home. AR 515-519, 829-835. 4 The Staff Report also listed criteria (4) as noncompliant, but for the same reason as (1) no sewer.

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Bellevue, WA 98004

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Comprehensive Plan policy was not self-executing—it specifically mandated implementation

through County development regulations, stating:

Land within a UGA but outside a Short Term Planning Area shall

retain its current zoning until a new joint plan is identified and the

Short Term Planning Area is moved, but with the following additional

limitations on development which shall be included in the County

development regulations:

• No sewer shall be extended outside a Short Term Planning Area.

Comp Plan., Policy 2S-2; AR 1460-1461 (emphasis added). The properties within the Urban

Growth Boundary but outside a Short Term Planning Area constitute the Long Term Planning

Areas with a policy that sewer shall not be extended in that area. The Applicant pointed out,

this limitation is expressly stated to be not self-executing; rather, implementing development

regulations are required to effectuate Policy 2S-2.5 Importantly, the Staff position completely

ignored other Comprehensive Plan policies that accepted sewer extensions within the Urban

Growth Area. Policy 2N-4, AR 1457; Policy 5T-1 AR 1583. The Staff position also failed to

consider whether Policy 2S-2 had been implemented, and the Applicant argued that the UR

development regulations constituted the implementing regulations because those regulations

specifically addressed the Short Term and Long Term Planning areas. The Applicant also

argued that the Comprehensive Plan policies cannot be applied to site-specific projects.

County Attorney Reply. The County attorney responded on the day of hearing with

a short memorandum of six pages that ignored numerous issues raised by the Applicants’ Pre-

Hearing Brief and instead put forth a new spin not argued by Staff. AR 1112-1117.

Specifically, the new position held that all the policies in the Comprehensive Plan are de facto

development regulations due to the incorporation thereof by the requirement in the

5 In fact, Staff was literally unaware of the implementation requirement.

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Bellevue, WA 98004

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Conditional Use criterion at WCC 20.84.220(1) that the Project be “harmonious and in

accordance with the general and specific objectives of Whatcom County’s Comprehensive

Plan and zoning regulations.” Yet, the County attorney did not explain how incorporation of

Policy 2S-2 solved the problem that the Policy required implementation in development

regulations. The County attorney also argued, based on case law, that the Comprehensive

Plan policies could be applied if there was no conflict with the Zoning Ordinance and

concluded there was none.

Hearing – Legal Issues Only. At the hearing, the Hearing Examiner quickly came to

the conclusion that only legal issues were involved. Transcript at 16:12-25, 17, 18: 1-5; AR

128-130. The Examiner pressed the County Staff and the County retreated from its secondary

position that the Project was inappropriate to the character of the area—the second CUP

criterion. Transcript at 17:10-18; AR 129. That left only the single legal issue to be decided

whether the Comprehensive Plan policy applied and prohibited sewer extension to the Project.

The hearing proceeded on that basis and the testimony taken and additional exhibits entered.

The Hearing Examiner asked for post-hearing submissions, including from the County on

whether a portion of the property was in the Short Term Planning Area. The Staff agreed that

in fact a large portion of the site was in the Short Term Planning Area. AR 1263.

HE Decision. The Hearing Examiner then issued a decision denying the Conditional

Use Permit application. Importantly, he concluded that only the sewer issue was at issue, and

that otherwise the Project was approvable:

The record currently before the Hearing Examiner indicates that if the

Applicants can obtain permission to connect to the Birch Bay Sewer

District sewer system, the Conditional Use request could be approved,

subject to conditions.

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Bellevue, WA 98004

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HE Decision at 11-12, ¶ V; AR 332-333. The Examiner’s Decision was based on the

overriding conclusion that the Project was inconsistent with Policy 2S-2, with no discussion

of the need for implementing regulations: “Serving the Applicant’s proposed development

with a sewer extension is inconsistent with the Comprehensive Plan Policy that sewer lines

not be extended into areas in a UGA outside of short term planning areas.” Id. at 19 (second

paragraph); AR 340. The Hearing Examiner accepted the County attorney position that the

first CUP criterion incorporated all the policies in the Comprehensive Plan as development

regulations:

The Hearing Examiner concludes that both the general and specific

policies of the Comprehensive Plan have been incorporated into the

Zoning Ordinance by WCC 20.84.220(1) [the first CUP criteria], and

that there are no inconsistencies between the Plan and the Zoning

Ordinance, WCC Title 20.

Id. at 17 (next to last paragraph); AR 338 (emphasis added). The HE Decision never

addressed the other Comprehensive Plan policies that authorized sewer extensions anywhere

in the Urban Growth Area. The HE Decision concluded essentially that the single Policy

trumps the UR development regulations that specifically allow this use.

County Council Appeal. The Plaintiffs filed a timely appeal of the HE Decision to

the County Council. AR 42-43; AR 316 (timely). The County Council has limited review

authority, and makes its decision solely on written argument with no hearing. WCC

20.92.660, .810. The County Council denied the appeal in a two page decision in which the

findings of fact and conclusions of law in the HE Decision were adopted in full and

incorporated by reference. AR 315-316. Thus, although the County Council decision is being

challenged, the operative decision document is the HE Decision through the adoption by the

County Council. This LUPA action followed.

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Bellevue, WA 98004

(425) 453-6206

ARGUMENT

I. STANDARD OF REVIEW UNDER LUPA: THE COUNTY MADE AN

ERRONEOUS INTERPRETATION OF LAW; THE COUNTY’S POSITION

IS ENTITLED TO NO DEFERENCE

State law governs the Superior Court’s consideration of challenges to “land use

decisions” under the Land Use Petition Act, Chapter 36.70C RCW (LUPA). LUPA contains

prescribed standards for granting relief as follows:

(1) The superior court, acting without a jury, shall review the record and

such supplemental evidence as is permitted under RCW 36.70C.120.

The court may grant relief only if the party seeking relief has carried the

burden of establishing that one of the standards set forth in (a) through

(f) of this subsection has been met. The standards are:

(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;

(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.

RCW 36.70C.130. To reverse the local jurisdiction’s decision “it is not necessary for the

court to find that the local jurisdiction engaged in arbitrary and capricious conduct.” RCW

36.70C.130(2). The interpretation and application of the County ordinances is a question of

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Bellevue, WA 98004

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law reviewed de novo. Whatcom County Fire Dist. No. 21 v. Whatcom County, 171 Wn.2d

421, 427 (2011).6

The primary standard at issue in this case whether the Hearing Examiner made an

erroneous interpretation of the law. Although subpart (b) references “such deference as is

due”, the Hearing Examiner’s interpretation, accepted by the County Council, is entitled to no

deference in this case. The State Supreme Court comprehensively addressed this precise

deference issue last year in Ellensburg Cement Products, Inc. v. Kittitas County, 179 Wn. 2d

737 (2014). The case was decided under LUPA and the second issue was the amount of

deference due the County’s interpretation of its own land use ordinance. The intervenor in

that case argued that, “courts must show deference to local decisionmakers' interpretations of

their own regulations.” Id. at 753. The unanimous Supreme Court disagreed. The Court

applied RCW 36.70C.130(1)(b) as follows:

The statute does not require a court to show complete deference, but

rather, “such deference as is due.” Thus, deference is not always due—

in fact, even a local entity's interpretation of an ambiguous local

ordinance may be rejected. See Sleasman v. City of Lacey, 159

Wash.2d 639, 646, 151 P.3d 990 (2007). Instead, the interpreting local

entity “bears the burden to show its interpretation was a matter of

preexisting policy.” Id. at 647, 151 P.3d 990 (citing Cowiche

Conservancy v. Bosley, 118 Wn.2d 801, 815, 828 P.2d 549 (1992)).

No deference is due a local entity's interpretation that “was not part of

a pattern of past enforcement, but a by-product of current litigation.”

Id. at 646, 151 P.3d 990. A local entity's interpretation need not “be

memorialized as a formal rule” but the entity must “prove an

established practice of enforcement.” Id. (citing Cowiche, 118 Wn.2d

at 815, 828 P.2d 549).

Here, Kittitas's interpretation of its zoning ordinance was a by-product

of the current litigation. Neither Gibson nor Kittitas has attempted to

show that there was any preexisting policy supporting the county's

interpretation of those zoning regulations.

6 The Judge’s Workings Copies include a binder of the cases relied upon herein, and the Court is directed to the

Star page references for jump page cites such as *427 on this cite.

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Id. at 1046. Thus, the Court afforded no deference to the county interpretation in that case.

Ellensburg Cement applies here. The HE Decision failed to provide any basis at all

for the key interpretation that that the Conditional Use criteria was intended to incorporate the

Comprehensive Plan policies as part of the Zoning Ordinance i.e. as development regulations.

Thus, the County failed to bear its burden as required under the quoted language above.

Therefore, the sewer issue is a legal issue that this Court has de novo authority to

review and decide. Thus, the background and circumstances that led the County Staff to take

a position on the sewer issue could be viewed as irrelevant. Nevertheless, if the County

makes the deference argument, then the Court will need to carefully consider the background

facts which may also require consideration of supplemental evidence, including the

depositions of County staff taken under the approved discovery. Among other circumstances,

the position was based on what staff believed the Comprehensive Plan policy stated, not on

what the policy actually stated—staff was not even aware that the policy required

implementation and applied the policy as a rule.

II. THE COMPREHENSIVE PLAN IS NOT A REGULATORY DOCUMENT;

SITE-SPECIFIC PROJECTS ARE CONTROLLED BY DEVELOPMENT

REGULATIONS, AND IF REQUIRED, NEED ONLY GENERALLY

CONFORM, NOT STRICTLY ADHERE, TO THE COMPREHENSIVE

PLAN POLICIES

The HE Decision concluded that, “both the general and specific policies of the

Comprehensive Plan have been incorporated into the Zoning Ordinance by WCC

20.84.220(1)”—citing the first CUP criterion. HE Decision at 17; AR 338. As a preliminary

matter, it must be pointed out that there is nothing in the first CUP criterion that remotely

indicates “incorporation” of the “policies of the Comprehensive Plan.” The first CUP

criterion does not even reference “incorporation” or “policies,” rather it uses the general terms

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“harmonious,” “in accordance with,” and “objectives.” It states: “Will [the Project] be

harmonious and in accordance with the general and specific objectives of Whatcom

County’s Comprehensive Plan and zoning regulations.” WCC 20.84.220(1); AR 2131.

The approach in the HE Decision is contrary to a fundamental principle of the Growth

Management Act—individual projects are governed by development regulations and are not

governed by the broad goals and policies of the Comprehensive Plan. Furthermore, merely

incorporating the Comprehensive Plan policy achieves nothing—Policy 2S-2 on its face

requires implementing development regulations, so the HE Decision reads the requirement for

implementing development regulations right out of Policy 2S-2.

The Court should interpret the first CUP criterion consistent with the law and require

only general conformance with the Comprehensive Plan—which this Project clearly meets,

and not the “strict adherence” to each policy as demanded in the HE Decision. In the

alternative, the Court should declare the first CUP criterion illegal because it violates the

GMA framework.

A. Individual Projects Are Not Regulated by Policies in the Comprehensive Plan

The State Supreme Court is not in doubt about this subject—the Comprehensive Plan

is only a planning tool, not a regulatory tool. Instead, the County development regulations

impose requirements on site-specific projects. This fundamental principle is rooted in the

Growth Management Act, Chapter 36.70A RCW (GMA), which mandates a clear framework

in which GMA counties must adopt comprehensive plans that comply with the GMA, and

then adopt development regulations that are consistent with the GMA and Comprehensive

Plan. The GMA defines the terms “comprehensive plan” and “development regulations” as:

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(4) "Comprehensive land use plan," "comprehensive plan," or "plan"

means a generalized coordinated land use policy statement of the

governing body of a county or city that is adopted pursuant to this

chapter.

. . .

(7) "Development regulations" or "regulation" means the controls

placed on development or land use activities by a county or city,

including, but not limited to, zoning ordinances, critical areas

ordinances, shoreline master programs, official controls, planned unit

development ordinances, subdivision ordinances, and binding site plan

ordinances together with any amendments thereto.

RCW 36.70A.030(4) and (7) (emphasis added). The two concepts are distinct. The

comprehensive plan is “a generalized coordinated land use policy statement,” while

development regulations are: “the controls placed on development or land use activities.”

Based on that framework, a unanimous Supreme Court stated the fundamental GMA

rule that development regulations govern projects, not comprehensive plans:

Neither the GMA nor the comprehensive plans adopted pursuant

thereto directly regulate site-specific land use activities. Instead, it is

local development regulations, including zoning regulations enacted

pursuant to a comprehensive plan, which act as a constraint on

individual landowners.

Viking Properties, Inc. v. Holm. 155 Wn.2d 112, 126 (2005) (citations omitted) (emphasis

added). The HE Decision violated this fundamental principle by incorporating all the policies

in the Comprehensive Plan as development regulations.

The County attorney and HE Decision mentioned an earlier Supreme Court case.

Citizens for Mount Vernon v. City of Mount Vernon, 133 Wn.2d 861 (1997). However, the

facts in Mount Vernon were substantially different. In that case, the City had adopted a

comprehensive plan pursuant to the GMA, but had not yet adopted implementing

development regulations and necessarily relied on the existing zoning ordinance:

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Mount Vernon has adopted a comprehensive plan, Mount Vernon has

existing zoning regulations, but Mount Vernon had not adopted

specific development regulations as of the start of this action.

Id. at 873 (citing RCW 36.70B.030(1)). Thus, the Court essentially fell back to the prior

general rules regarding comprehensive plans and zoning regulations, and did not address the

primacy of GMA development regulations. Hence, the Court stated the general rules that

comprehensive plans are a guide or blueprint that are generally not used to make specific land

use decisions, and that projects need only generally conform, and not strictly adhere, to the

comprehensive plan.

The Supreme Court in Viking Properties (155 Wn.2d at 126) cited with approval

Timberlake Christian Fellowship v. King County, 114 Wn. App. 174 (2002). The Timberlake

case involved a Conditional Use Permit application seeking to approve a church in the rural

area. The CUP criterion at issue was whether the church was compatible with the area. King

County’s CUP criteria did not have the same provision as Whatcom County that the project be

harmonious with the comprehensive plan. However, King County did have another provision

allowing the hearing examiner to impose conditions based on the comprehensive plan. The

HE Decision in this case cites a similar provision allowing conditions to carry out the

Comprehensive Plan in support of denial. HE Decision at 18, AR 339. In Timberlake, the

citizens group challenging the project argued that: “the Timberlake permit violates the GMA

and the King County Comprehensive Plan because it constitutes urban growth in a rural area.”

Id. at 182. The church responded that the GMA and comprehensive plan may not be applied

directly at the project-review level. The Court of Appeals agreed with the church stating that:

“a county's comprehensive plan is generally to be used as a guide or blueprint, and as such, it

is not usually appropriate to use it to make specific land use decisions.” Id. With respect to

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the conditions clause, the Court found that it was inappropriate to use the conditions clause to

require strict adherence with the comprehensive plan policies or to support denial, but the

Court allowed that the comprehensive plan policies would support exercise of discretion in

crafting conditions. Id. at 183.

The Supreme Court asserted the primacy of adopted development regulations in

Whatcom County Fire Dist. No. 21 v. Whatcom County, 171 Wn.2d 421 (2011). In that case,

Whatcom County had issued three project approvals that were based on a finding that, “the

County’s comprehensive plan definitively established the adequacy and availability of fire

protection.” Id. at 425. The Court disagreed and rejected the comprehensive plan as a

regulatory tool. Instead, the Court looked to the development regulations to decide the issue.

Specifically, the Court found that the County Code relied on the fire district’s determination

of availability. Id. at (citing WCC 20.80.212). In contrast, the Project here obtained Fire

District approval (AR 1183), and as discussed below, this same Code provision supports

approval here on the sewer issue.

These rulings are clear—the Comprehensive Plan cannot be used to regulate site

specific projects. Rather, development regulations impose detailed requirements that control

individual projects.

B. The Court Should Interpret the First CUP Criterion, In Accord with the

Comprehensive Plan, as Requiring General Conformance and Not Strict

Adherence

The HE Decision claimed that the first CUP criterion must be interpreted to

incorporate the general and specific policies of the Comprehensive Plan; otherwise, the

language of the provision would be superfluous, violating a rule of construction. HE Decision

at 17-18, AR 338-339. The first CUP criterion requires that the Project: “Will be harmonious

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and in accordance with the general and specific objectives of Whatcom County’s

Comprehensive Plan and zoning regulations.” The Court does not need to ignore this

provision. Rather, this language should be interpreted consistent with case law requiring only

general conformance with the comprehensive plan, not strict adherence as imposed in the HE

Decision. The cases have applied this relaxed standard in any situation in which the

comprehensive plan is determined to be relevant for decision making. The relaxed standard is

supported by the words used in the provision compared to other Code terms e.g. “comply.”

The appellate courts have essentially concluded that there is no such thing as strict

compliance with a comprehensive plan—a project need only show general conformance to the

extent that “consistency” is required. In the Mount Vernon case, the Supreme Court stated

that project review is based on “consistency with applicable development regulations” (i.e.

those adopted pursuant to the GMA), or in the absence of GMA development regulations,

review is based on “consistency” with the GMA comprehensive plan. Citizens for Mount

Vernon, 133 Wn.2d at 873 (1997) (citing RCW 36.70B.030, see also .040). The Court

concluded that “consistency” with the comprehensive plan requires only general

conformance, not strict adherence. Id. The Timberlake case discussed above is another case

in which consistency with the comprehensive plan was made relevant due to the authority to

impose conditions, but the court concluded that in such a case only general conformance was

required. 114 Wn. App. at 183.

The Court of Appeals addressed this issue in Willapa Grays Harbor Oyster Growers

Ass'n v. Moby Dick Corp., 115 Wn. App. 417 (2003). Like the Mount Vernon case, Pacific

County had adopted a GMA comprehensive plan, but “had not yet adopted [GMA]

development regulations” to implement the comprehensive plan. Id. at 427. Thus, the project

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review was specifically based on “consistency” with the adopted GMA comprehensive plan

according to RCW 36.70B.040. Id.; see also RCW 36.70B.030(1). Nevertheless, the Court

did not require strict adherence:

A proposed land use decision must generally conform to a county's

comprehensive plan. But, the provisions in the plan are to be used as a

planning guide, not a land use decision-making tool. In other words,

strict adherence is not required. The plan is only a general blueprint

and thus only general conformance is necessary. As case law clearly

indicates that a comprehensive plan is more general guide than precise

scheme, the stringent compliance standard that the Association

advocates does not apply.

Moby Dick, 115 Wn. App. at 429 (quotations and citations omitted). These cases stand for

the concept that comprehensive plans are only general guides, so it is inappropriate and

nonsensical to require strict compliance. This Court should conclude, consistent with these

cases, that the first CUP criterion can be enforced, but that it requires only general

conformance with the Comprehensive Plan, and not strict compliance.

This interpretation is supported by other County Code provisions. The wording

“harmonious” and “in accordance” is different than “comply.”7 The County Code frequently

uses the terms “compliance” or “comply” as a mandate, so using the softer language in the

first CUP criterion is meaningful. For example, the minimum setback provision states:

(1) All structures, including accessory structures, shall be placed on

their lots in compliance with the requirements of the setback table

(subsection (5)(b) of this section), except as may otherwise be

provided in this title.

(2) Waterfront Lots. Waterfront lots shall comply with the building

setback requirements set forth in the Whatcom County Shoreline

Management Program. (See WCC 20.80.230(2).)

7 The Code provides no definitions for these words. See WCC Chapter 20.97, AR 2181-2183..

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WCC 20.80.210 (emphasis added), AR 2079. These setbacks provisions and the CUP criteria

(WCC 20.84.220, AR 2131) are in Title 20 which is the County Zoning Ordinance (WCC

20.04.010, AR ). This Court should apply the rule of construction that: “When different

words are used in the same ordinance, it is presumed that a different meaning was intended to

attach to each word.” Choi v. City of Fife, 60 Wa. App. 458, 462 (1991). The first CUP

criterion does not use strict compliance wording even though such wording is used in

different provisions, therefore the Court should not interpret the first CUP criterion to require

strict compliance.

In contrast, the HE Decision followed the County attorney approach in declaring that

the first CUP Criterion incorporates the policies of the Comprehensive Plans “into the Zoning

Ordinance,” i.e. as rules and as development regulations. This conclusion is a radical change

in the Zoning Ordinance because it means that every single policy in the 461 page

Comprehensive Plan is a mandatory rule requiring strict compliance just like setbacks, and is

inconsistent with the fundamental principle that the Comprehensive Plan is only a planning

tool. The HE Decision erred in finding that the first CUP criterion incorporates all policies in

the Comprehensive Plan into the Zoning Ordinance as rules.

C. In the alternative, the Court Should Declare the First CUP Criterion Illegal

Plaintiffs set forth this alternative argument if the Court disagrees with interpreting the

first CUP Criterion as merely requiring general conformance or if the Court were to find that

the Project does not generally conform to the Comprehensive Plan. If either occurs, then this

alternative argument seeks to have the Court declare the first CUP criterion provision to be

illegal because it is in violation with the GMA. The provision as interpreted by the County is

directly contrary to the fundamental principle that the Comprehensive Plan policies do not

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regulate individual projects. Viking Properties, the GMA, and the project permit review

provisions (RCW 36.70B.030, .040) stand for the proposition that once GMA development

regulations are adopted to implement the Comprehensive Plan, then only the development

regulations control a site-specific project. Thus, if that is the law, then all local ordinance

provisions that link project review whether directly (the first CUP provision) or indirectly

(based on review of appropriate conditions) to the Comprehensive Plan would be prohibited.

The whole point of development regulations is to bring clarity to the process and to

have clear rules that govern land use activities. If the comprehensive plan is used to regulate

individual projects at every hint that the development regulations are incomplete, then the

certainty of the development regulations completely breaks down. The Whatcom County

Comprehensive Plan is 461 pages long and is filled with vague and conflicting aspirations

such as protect open space, build housing, build affordable housing, build housing in the

cities, and avoid causing traffic. It is simply an oxymoron to state that one project can

“comply” with everything in a 461 page document. The first CUP criterion provision is

illegal if interpreted to require that impossibility.

III. THE HE DECISION ERRONEOUSLY APPLIED THE COMPREHENSIVE

PLAN POLICIES AND DEVELOPMENT REGULATIONS

The overall substantive issue is whether the Lincoln Park Retirement Home Project

may be served by sewer according to the applicable rules established by the County.

Plaintiffs contend that the applicable rules are the County development regulations, and that at

most general conformance with the Comprehensive Plan is required which is met. The HE

Decision held that the Project must be denied for failure to comply with a single

Comprehensive Plan policy—Policy 2S-2. No other policy nonconformities were suggested

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or relied on in the HE Decision. The HE Decision erroneously reviewed the Comprehensive

Plan policies by ignoring that Policy 2S-2 is not self-executing, and by ignoring other

contrary policies. Further, the HE Decision erroneously reviewed the development

regulations that are contrary to the conclusion that sewer cannot be extended to the Long

Term Planning Area.

A. The HE Decision Misapplies the Comprehensive Plan Policies

The HE Decision’s discussion of Policy 2S-2 is woefully deficient in particular by

ignoring important language in Policy 2S-2 which starts as follows:

Land within a UGA but outside a Short Term Planning Area shall

retain its current zoning until a new joint plan is identified and the

Short Term Planning Area is moved, but with the following additional

limitations on development which shall be included in the County

development regulations:

• No sewer shall be extended outside a Short Term Planning Area.

Comp. Plan., Policy 2S-2 (emphasis added); AR 1460-1461. This language establishes a

policy, not a rule, that sewer shall not be extended within the UGA but outside the Short Term

Planning Area, i.e. the Long Term Planning Area. But, this limitation is expressly stated to be

not self-executing; rather, implementing development regulations are required to effectuate

the Policy. The HE Decision simply ignored the important highlighted language, namely that

Policy 2S-2 “shall” be implemented through County development regulations. The HE

Decision read this requirement right out of the Comprehensive Plan. Even without the legal

rule that only development regulations apply to site-specific projects—this Policy specifically

declares that development regulations are the implementing standard. The Policy on its

face complies with the fundamental GMA principle that development regulations control

individual projects by requiring those development regulations. It should also be noted that

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this policy states that land in the Long Term Planning Areas retains the current zoning, thus

the policy recognizes that the land will be subject to development under the zoning.

The HE Decision relied on the first CUP criterion requiring that the Project be in

accord with the Comprehensive Plan. But, there is nothing in the first CUP criterion that

supports taking a policy and deciding that one portion of the policy should be ignored. To do

so violates a rule of construction: “Full effect must be given to the legislature's language, with

no part rendered meaningless or superfluous.” Sleasman v. City of Lacey, 159 Wn. 2d 639,

646 (2007). The adoption of the Comprehensive Plan was based on the express statement that

Policy 2S-2 would be implemented with development regulations. That requirement simply

cannot be ignored without violating the intent of the Policy.

One reason that implementing development regulations are needed is that the

prohibition on sewer extensions in Policy 2S-2 is inconsistent with other Policies in the

Comprehensive Plan. Specifically, the Utilities Chapter has a different Policy in regards to

sewer extensions: “Discourage extension of sewer lines in areas not designated as urban

growth areas . . . .” Comp Plan, Policy 5T-1 (emphasis added); AR 1583. Thus, this Policy

recognizes that Urban Growth Areas are appropriate for extension of sewer lines, and the site

is within the Urban Growth Area. See also Policy 2N-4; AR 1457 (ensure that “service

providers do not extend sewer or urban levels of water service to serve new areas of urban

densities outside urban growth areas” [emphasis added]). These Policies recognize that

sewer extensions to the Urban Growth Area are appropriate, including to the site.

Thus, one Policy states that sewer shall not be extended outside the Short Term

Planning Area (but is not self-executing), while other Policies state that sewer is appropriate

within the Urban Growth Area which includes the Short Term and Long Term Planning

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Areas. The HE Decision arbitrarily selected a single policy—Policy 2S-2, without regard to

consideration of the other Policies that bear on the issue and are contrary to the predetermined

result. A fair reading of all three policies together would indicate that sewer is appropriate in

the Urban Growth Areas, which may include the Long Term Planning Area, and that the

specific rules regarding prohibitions in the Long Terms Planning Area can only be determined

by reviewing the development regulations.

The HE Decision also failed to address the fact that, under the vested rules, the site is

partially in the Short Term Planning Area and partially in the Long Term Planning Area. The

Applicant’s consultant conducted deep research leading up to the hearing and determined that

a 2005 County Ordinance had designated 3.55 acres of the site as Short Term Planning Area.

AR 1157-1158. Subsequent to the hearing, Staff confirmed that this was correct, but indicated

that the designation had been removed from the official map after 2006 without explanation.

AR 1263. Policy 2S-2 says nothing about a split site situation. The combined site is

rationally based and addresses numerous other Comprehensive Plan Goals and Policies,

namely avoiding impacts to natural resources—here avoiding a large eight-acre wetland. AR

1162. There is nothing to preclude a reading of Policy 2S-2 that extending sewer to the entire

Project that is partially in a Short Term Planning Area should be allowed when the Project

accomplishes other Comprehensive Plan Goals or Policies.

There is another consideration that bears on this issue. The language of Policy 2S-2

states that: “No sewer shall be extended outside a Short Term Planning Area.” The problem

is that sewer is already outside that area. While Policy 2S-2 might apply in some areas of the

County, it is entirely inappropriate to apply the Policy in the areas of an existing water-sewer

district. Here, the entire site is already within the Birch Bay Water and Sewer District, and

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within the District’s active water sewer service area with District plans to serve the site. In

fact, the District is already providing water service to the site and sewer service to the

immediate area just 340 feet away. The residential neighborhood and other properties near

that location which are served by sewer were also in the Long Term Planning Area in 2009,

and are now outside the Urban Growth Area entirely (the rural area), yet still receive sewer.

The District has provided a sewer availability letter to the County—that sewer is available and

that capacity exists for the Project. AR 963. No statute, regulation, or court case has ever

precluded a property owner from connecting to a public sewer district’s system in these

circumstances—within the District boundaries, within the active service area, and with

availability and capacity. Rather, an exclusive provider of sewer service such as the District

has a duty to allow connections (except for lack of capacity which does not apply here).

Yakima County (W. Valley) Fire Prot. Dist. No. 12 v. City of Yakima, 122 Wn. 2d 371, 381-83

(1993). State law declares that the service area of a “special purpose district” such as the

District “shall include all of the area within its corporate boundaries,” thus any “change in

boundary” requires compliance with boundary review board procedures which have not

occurred. RCW 36.93.093. Plus, if the District extended the sewer system past the site to

serve new urban developments acceptable to the County, the District could force Plaintiffs to

connect the existing house to the sewer system on penalty of monthly fines. District Code

8.04.400. The so-called “extension” here is not beyond the Urban Growth Area such as to run

afoul of the Growth Management Act which controls and generally prohibits the extension of

sewer lines from the Urban Growth Area to serve the rural areas, i.e. outside the Urban

Growth Areas. Thurston County v. Cooper Point Association, 148 Wn.2d 1 (2002) (the case

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does not address the situation of existing sewer in the rural area). Policy 2S-2 cannot be

applied to preclude sewer connection by Plaintiffs.

In summary, the HE Decision found lack of harmony and accord with the

Comprehensive Plan based solely on the single Policy 2S-2, which is not self-executing and

hence is not a rule at all, even though the HE Decision applies it as such. No other non-

compliance was identified. In contrast to mistaken reliance on a single policy, the Applicants

presented testimony of certified planning expert William Geyer and he concluded that the

Project generally conforms to, and is harmonious with, the Comprehensive Plan, citing 55

provisions. AR 170-171 (Transcript); AR 1153-1166 (qualifications and written report); AR

1197-1198 (citation to Comp Plan). The Staff and Hearing Examiner did not find otherwise.

B. The HE Decision Ignores the Most Pertinent Development Regulations which

Specifically Address the Short Term and Long Term Planning Areas

The HE Decision claimed that other sections of the Zoning Ordinance support the

conclusion that the first CUP criterion incorporates all policies in the 461 page

Comprehensive Plan with a strict compliance standard for extension of sewer into the Long

Term Planning Area and hence denial of the Project. AR 339. Glaringly absent from that

cursory discussion is any reference to the only applicable Zoning Ordinance provision that

specifically addresses the Short Term and Long Term Planning Areas.

1. Urban Residential Zoning District UR4

The HE Examiner utterly failed to consider the Urban Residential (UR) Zoning

District which contains development regulations expressly addressing the Short Term and

Long Term Planning Areas.8 The UR zoning regulations implement Policy 2S-2 by expressly

8 Similar regulations are contained in other zoning districts.

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allowing certain uses only in the Short Term Planning Areas, and thus prohibiting those uses

in the Long Term Planning Area. Other uses are not limited and may be located either in the

Short Term or Long Term Planning Areas. As will be explained, the key indication of

sprawl—single family neighborhoods, are allowed only in Short Term Planning Areas. This

approach severely limits sewer extensions in the Long Term Planning Areas since the most

intense urban uses are prohibited in those areas. Thus, the UR zoning regulations balance

Policy 2S-2 with implementation of other Comprehensive Plan Policies by allowing some

uses within the Long Term Planning Areas as transitional uses. The Project is defined in the

Code to be a “retirement home” or “boarding home” which are conditionally permitted uses

that are not restricted to the Short Term Planning Areas, i.e. the use is allowed as a

conditionally permitted use in the Long Term Planning Areas.

The HE Decision ignored the clear intent expressed in the adoption of the Zoning

Ordinance. The County Zoning Ordinance is set forth as Title 20 of the Whatcom County

Code. WCC 20.04.010, AR 1831. The Zoning Ordinance contains an overall “Statement of

Purpose” which begins: “The purpose and intent of the title is to further the goals and policies

of the Whatcom County Comprehensive Plan . . . .” WCC 20.04.020, AR 1831. The Urban

Residential - UR District regulations contain a strong “Purpose” provision as follows:

To promote an orderly transition from rural to urban development, the

intent of this district is to encourage land uses and associated

densities which will be complementary with future urban densities and

services, while allowing reasonable transition uses of properties.

Furthermore, it is the intent of this district to implement the policies

of the Comprehensive Plan.

Former WCC 20.20.010, AR 1861. Both provisions specifically state the intent to implement

the policies of the Comprehensive Plan. Those statements must be accepted. That is, this

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Court should accept that the drafters were in fact cognizant of the Comprehensive Plan

policies, including Policy 2S-2 restricting extensions of sewer into the Long Term Planning

Areas and Policies 5T-1 and 2N-4 which recognize extensions of sewer anywhere in the

Urban Growth Area. There was a conflict among policies and a balance had to be made, and

the purpose provision can be read as an intent to do just that. The UR purpose provision also

states that it seeks to encourage certain land uses which are complimentary with future urban

densities and services. This provision can logically be read to mean that sewer needs to be

provided since the area is intended to be a full urban area in the future. Since new

development pays for sewer extensions through the property, prohibiting sewer in the Long

Term Planning Areas would severely hamper planned full urban densities. This intent is

magnified by the uses allowed in the Long Term Planning Areas that obviously require sewer.

The next provision in the UR regulations is “Applicability” and it states:

(1) In short-term planning areas, this chapter shall be fully applicable.

(2) Outside short-term planning areas [i.e. Long Term Planning Areas]. . .

designated on the Comprehensive Plan map, this section shall be

limited as noted below.

Former WCC 20.20.015, AR 1861. This reflects an intent to implement the Short Term

versus Long Term Planning Area policies in the Comprehensive Plan, including Policy 2S-2,

by expressly prohibiting certain uses in the Long Term Planning Areas. While not the

complete prohibition desired by Staff, it cannot be denied that the drafters were addressing

Short Term versus Long Term which necessarily included consideration of the desired

prohibition on sewer extensions in Policy 2S-2. The drafters did not establish a complete

prohibition likely as a matter of prudence and compromise. This Court must reverse the HE

Decision’s attempt to undo this careful balancing.

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The first important restriction is in the UR regulations is that residential development

at the UR 4 level, i.e. four units per acre, is only allowed in Short Term Planning Areas.

Former WCC 20.20.052, AR 1861. This restriction is a key rule and a severe limitation—

typical single family neighborhoods are barred outside the Short Term Planning Areas.

Housing neighborhoods will not be sprawling out into the Long Term Planning Areas under

this rule. Urban needs are magnified by single family neighborhoods spread out at four units

per acre and this restriction substantially curtails the urban services needed in the Long Term

Planning Areas—demand for roads, police, parks, schools, and commercial services are all

reduced where there are no single family housing neighborhoods. See also Former WCC

20.20.252, AR 1867 (specific lot size requirements for single family dwellings based on Short

Term versus Long Term).

Turning to the Conditional Uses, the UR zoning provisions reveal a number of

decisions to prohibit certain uses in the Long Term Planning Areas, but not prohibit others.

Former WCC 20.20.150, AR 1864-1866. Public and community facilities, i.e. police and fire

stations, libraries, community centers, recreation facilities, and other similar noncommercial

uses, are specifically not permitted in the Long Term Planning Areas unless the applicant can

demonstrate need based on certain criteria. Former WCC 20.20.151, AR 1864-1865. There is

no restriction on the location for public, parochial, or private schools (.152) or on churches,

religious training institutions, and summer camps (.153). Former WCC 20.20.150, AR 1865.

A public school and other schools would most obviously be expected to have sewer service,

but so are churches. Importantly, there is no restriction on:

Retirement and convalescent homes; social and health rehabilitation

centers; day care centers; mini-day care centers; and adult care centers

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not in a family dwelling; and other health-related services consistent

with the purpose of the district.

Former WCC 20.20.154, AR 1865. This category could apply here, but the boarding home

category appears to fit more closely due to the need for State licensing. See infra. These uses

too would be expected to have sewer service, and retirement homes in particular are expected

to have dozens of rooms necessitating sewer.

But, neighborhood grocery stores are expressly authorized only in Short Term

Planning Areas. Former WCC 20.20.155, AR 1865.

Proceeding down the list, a number of uses are not restricted in any way, and can

locate in the Long Term Planning Areas: golf courses (.156), activity centers (.157), certain

public or private parks (.158), bed and breakfast inns (.159), public campgrounds (.160), plant

nurseries and greenhouses (.163), and state education facilities i.e. state community colleges

and universities (.183). AR 1865-66. Again, a college would obviously need sewer service.

The next relevant provision is the boarding home provision which has no Short Term

Planning Area restriction. The “Boarding Home” conditional use authorizes: “Boarding

homes that are larger than other residential structures permitted in the zoning district.”

Former WCC 20.20.189, AR 1866. The County Code defines “Boarding Homes” to include

assisted living facilities licensed by the State (WCC 20.97.032, AR 2188), and the proposed

facility is required to be licensed by the State as an assisted living facility under Chapter 18.20

RCW. The County concedes that the Project meets this definition of a boarding home. Staff

Report at page 11; AR 1100.9 The “Boarding Home” provision contains no limitation

9 See also Former WCC 20.20.190, AR 1866, that authorizes mental health facilities larger than homes as a

conditional use without restriction as to location. Similarly, though this use might apply solely to the

Alzheimer’s care building, the overall facility appears to fit the Boarding Home use best.

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restricting this use only in the Short Term Planning Areas, so a “Boarding Home,” i.e. an

assisted living facility, is an appropriate conditional use in the Long Term Planning Areas.

An assisted living facility like a retirement home would be expected to have sewer service.

These development regulations cannot be ignored. They reflect a careful balancing of

uses between the Short Term and Long Term Planning Areas, which necessarily address the

allowance of sewer service to allowed uses. These UR regulations constitute direct and

authoritative recognition that the Project is an allowed use in the Long Term Planning Areas,

and clearly constitute partial implementation of the vision of Policy 2S-2 in restricting sewer

extensions. Yet, the HE Decision completely ignored the import of these provisions—the

only applicable development regulations that expressly address in any manner the difference

between the Short Term and Long Term Planning Areas. These implementing development

regulations control the issue of appropriate uses and sewer extensions in the Long Term

Planning Area, and thus the Court should conclude that the Project generally conforms to the

Comprehensive Plan in that regard.

2. Hearing Examiner Authority to Impose Conditions

The HE Decision cited to the Hearing Examiner’s authority to add conditions to “carry

out the objectives and goals of the Comprehensive Plan” as a provision supporting the

conclusion that the project can be denied. AR 339 (citing WCC 20.92.410, AR 2174). Again,

the premise of the HE Decision on this point is that Policy 2S-2 is self-executing when it is

not. Next, the assumption is made that strict compliance applies to Comprehensive Plan

policies when all the cases say otherwise. Finally, this exact provision—authority to impose

conditions to carry out the objectives and goals of the comprehensive plan—was at issue in

Timberlake v. King County. 114 Wn. App. at 182 (2002). The court rejected using the

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comprehensive plan to make specific land use decisions, while allowing that, the

comprehensive plan policies would support exercise of discretion in relation to the conditions

but not as a basis for denial. Id. at 183. The Timberlake court refused to take a hard line in

determining general conformance with the comprehensive plan policies. The court accepted

that the large church was urban growth, but nevertheless found that it was appropriate in the

rural area, stating: “But the purpose of the GMA is not necessarily frustrated every time

growth of an urban nature occurs in the rural area.” Id. at 184. Similarly, growth of an urban

nature in the Urban Growth Area such as with the Project here does not frustrate the GMA

and is in general conformance with the Comprehensive Plan.

3. Public Utilities Code

The HE Decision cited to the Public Utilities Code that required new sewer lines to be,

“consistent with the Whatcom County Comprehensive Plan” as a provision supporting the

conclusion that the project can be denied. HE Decision at 19; AR 340 (citing former WCC

20.82.030, AR 1261 [Hearing Examiner Exhibit 59 which is the vested code]).

Again, the premise of the HE Decision on this point is that Policy 2S-2 is self-

executing when it is not. The active policy of Policy 2S-2 is that development regulations

shall be adopted. All projects are in general conformance with that policy. It should be noted

that the HE Decision is not real clear in what point is being made. The Public Utilities Code

provision does not implement any rules regarding the Short Term versus Long Term Planning

Areas—those terms are never mentioned. If the HE Decision was attempting to make that

argument, then the HE Decision reasoning was completely circular—the rules for

implementing the policies of the Comprehensive Plan are in the Comprehensive Plan.

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Importantly, former WCC 20.82.030 uses the term “consistent with” the

Comprehensive Plan. That was the exact applicable term in the Moby Dick case. 115 Wn.

App. 427. The court in that case nevertheless required only general conformance with the

Comprehensive Plan, and not strict adherence.

The Public Utilities Code provision does not support the County and the HE Decision

erred in relying upon that as a ground for decision.

4. Concurrency Provision Supports Approval of the CUP Application

The concurrency provision in the Zoning Ordinance supports approval of the CUP

application because it is a determinative development regulation addressing sewer service.

The concurrency provision states:

No subdivision, commercial development or conditional uses shall be

approved without a written finding that:

(1) All providers of water, sewage disposal, schools, and fire

protection serving the development have issued a letter that adequate

capacity exists or arrangements have been made to provide adequate

services for the development.

(2) No county facilities will be reduced below applicable levels of

service as a result of the development.

WCC 20.80.212, AR 2090. The Staff Report recognized the applicability of this provision to

this Project as a commercial development and concluded that the Project was in compliance.

AR 1102-1103. The Birch Bay Water and Sewer District submitted a letter in compliance

with this provision stating, “water and/or sewer service are presently available to said

property.” AR 963. The State Supreme Court applied this exact same code provision in

Whatcom County Fire Dist. No. 21 v. Whatcom County, 171 Wn.2d 421 (2011). The County

in that case relied upon the County’s Comprehensive Plan to find that fire service was

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adequate and issued three project approvals. The Supreme Court disagreed and rejected the

comprehensive plan as a regulatory tool and relied on WCC 20.80.212 as the development

regulation that addresses fire service availability. Id. at 428. The Court found that when the

service provider provides a concurrency letter, the County is bound to honor that

determination without regard to any policies in the Comprehensive Plan.

Whatcom County Fire Dist. No. 21 applies here. The same Code provision applied in

that case also addresses sewer providers. WCC 20.80.212, AR 2090. A sewer availability

letter was obtained from the District indicating that sewer service was available to this

Project. AR 963. Like that case, the Comprehensive Plan contains no provision regarding

funding of District sewer improvements. See AR 1583-1584, 1776 (planning only for County

controlled infrastructure). Therefore, the County cannot cite to policies in the Comprehensive

Plan to preclude connection to the District’s sewer and hence deny the CUP application. This

specific zoning ordinance provision must prevail over the conflicting Comprehensive Plan

policy. The fundamental purpose of concurrency provisions is to provide a clear process to

obtain certainty that urban services, such as sewer, are readily available. The concurrency

letter becomes the basis for project planning and financial decisions. The HE Decision

circumvented that certainty by bringing the vague notion of compliance with Comprehensive

Plan into the debate. That approach violates the holding in Whatcom County Fire Dist. No. 21

and must be rejected.

5. Conclusion Regarding Development Regulations

The HE Decision took the position that a single Policy in the Comprehensive Plan

demands conformance to a vision of what the Short Term and Long Term Planning Areas

should look like, namely to promote phased development from the urban core outward. HE

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Decision at 15 (emphasis in original), AR 336 (quoting the Staff Report). The development

regulations did not follow that exact vision. It is worth noting that the vision of phasing from

Short Term to Long Term Planning Areas is not required by the GMA, and the approach in

the development regulations is fully consistent with the GMA. As stated by the Growth

Board Management Hearings Board:

The Board has indicated growth phasing is an option which is

available to address the need for infrastructure concurrency, but is not

a mandate. Thus urban growth may be located (a) where urban

services are already available, (b) where there is already some urban

development and necessary urban services will be provided by public

or private sources, and (c) in the remaining portions of the urban

growth areas.10

The Project site is in the Urban Growth Area and that is an appropriate location for urban

growth based on (c), though (a) and (b) might apply too. The prohibition in the GMA is that

urban services generally cannot be extended into the rural area.11

That rule does not apply

here because the Project is in the Urban Growth Area and Urban Residential Zoning District.

The Urban Residential development regulations implemented the Comprehensive Plan

by making decisions about appropriate uses in the Short Term versus uses in the Long Term

Planning Areas. The allowed uses necessarily require sewer which is also consistent with

intense urban uses in the future. The Project for an assisted living facility, i.e. Boarding

Home, is a conditional permitted use in the UR Zoning District and is otherwise in

compliance with other development regulations. The Project’s CUP application must be

reviewed based on these development regulations and not based a single policy in

Comprehensive Plan.

10

City of Shoreline v. Snohomish County, Central Puget Sound Growth Mgmt. Hearings Bd. (Nos. 09-3-0013c

and 10-3-0011c; Corrected Final Decision and Order, May 17, 2011) (citing RCW 36.70A.110(3)). 11

Thurston County v. Cooper Point Ass'n, 148 Wn. 2d 1 (2002) (citing RCW 36.70A.110(4)).

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IV. OTHER FLAWS IN THE HE DECISION AND ADDITIONAL REASONS

TO PROVIDE NO DEFERENCE TO THE HE DECISION AND STAFF

POSITION

Plaintiffs contend that the HE Decision and Staff position are entitled to no deference

at all for the reasons described in the Standard of Review above, citing and discussing

Ellensburg Cement Products, Inc. v. Kittitas County, 179 Wn. 2d 737 (2014). The review

standard requires this Court to interpret the ordinances, but also states: “after allowing for

such deference as is due the construction of a law by a local jurisdiction with expertise.”

RCW 36.70C.130(1)(b). The Ellensburg Cement case holds that no deference is due here

because the HE Decision’s key interpretations were not supported by a pattern. However, if

the Court is going to consider deference at all regarding the interpretation of the law, i.e. the

County ordinances, then the discussion in this section becomes important to understand the

background of the County decision making. Furthermore, the Hearing Examiner significantly

compounded the problem by abdicating his responsibility to make a de novo decision, and

instead substantially deferred to the flawed Staff position.

A. Project History

Plaintiff Julie Carney and her husband have owned a portion of the property since

1992 with the intention of developing the UR-4 zoned land near the expanding Birch Bay

community. Carney Written Testimony, AR 1203. The property was also on Lincoln Road

which was to be extended to be the main road to Semiahmoo. The property was also in the

Birch Bay Water & Sewer District—the house on the property has been a water customer of

the District since 1992. In about 2006, the process with the County to develop the property

was started and permit fees were paid, SEPA and wetland studies completed, etc. In about

2007, the Carneys joined up with Plaintiff Michael Reid to purchase the contiguous 13 acres

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and were attempting to develop that property as well. The County Planning Department

accepted the applications, but gave Plaintiffs the run-around for about two to three years. The

County could not even explain what was happening to the applications. Finally, in 2009 with

the County about to severely downzone the property, a new plan was developed to build a

retirement complex called Lincoln Park and a complete application was submitted to become

vested to the UR zoning that the property had been in since purchase in 1992. AR 1200-1201.

Since 1992, the Birch Bay Water & Sewer District had always held itself out as

willing and able to provide water and sewer connections for any property within its service

areas. This property is in the District water and sewer service areas. The District is prepared

to provide connections as long as the project provides the infrastructure needed for the

connections, which of course Plaintiffs are planning to do. The District has no capacity

problems, so there is no legitimate reason not to allow the Project to connect. The clear

understanding in the community is that a property owner owning property in a water and

sewer district with no capacity problems and within the service areas expects to be able to

connect. The whole point of buying property, and paying more for the property, in the water

and sewer district is to be able to connect upon development. Plaintiff Julie Carney explained

that: “I don’t believe it is fair, right, or legal for the County to interfere with my right to

connect for a use that is specifically listed as a conditional use in this zoning district.” Carney

Written Testimony, AR 1202.

Plaintiffs have a substantial amount invested in this Project based on the expectation

of making reasonable use of the property. The property is not economically viable as farm

property. Since 1992 for the initial property and since 2007 for the remainder, the property

has always been investment property for the purpose of developing. The current Project

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represents an opportunity to use the land for beneficial and profitable purposes. Without an

approval, that investment and the ability to make any reasonable use of the property will be

lost. Carney Written Testimony, AR 1201-1202.

The Project will be an asset to the community and will bring in tax dollars and create

jobs. As described by Plaintiff Julie Carney, a lifelong resident of the County for 64 years:

Most importantly, the Lincoln Park Retirement Center will provide

quality care for the senior community especially those in north County

but also for the rest of the County. The location is only 30 minutes

from Bellingham. The site is fantastic because it will provide a safe,

contained facility in a tranquil setting with flat paths for walking and

wheel chairs. The facility is designed according to the best standards

for care. Seniors from throughout the County will seek this location

for the setting while being close enough for family and friends to visit.

Weekend visits by children, grandchildren, and friends would be an

enjoyable experience, especially on sunny Northwest days when they

would all be able to visit outside and enjoy the beautiful landscaped

grounds, wetland habitat, and abundant birds. Residents and guests

will walk, ride in wheelchairs, or just sit on benches to enjoy the view,

or they will be inside enjoying social activities together.

AR 1202-1203. The Project received unanimous support from the community with 25 public

comment letters fully in support of the Project for a variety of reasons. AR 1217-1247.

B. The HE Decision was a Byproduct of a Flawed Staff Review Process and a

Staff Report Based on False Premises and Misrepresentations

Under the County administrative process, the Hearing Examiner holds an “open record

hearing” on the conditional use permit application and has the power to approve, approve with

conditions, or deny the application. WCC 20.92.210, .410, .610.-.720. Thus, the Hearing

Examiner is empowered to make the decision, not staff. Of course, the open record hearing is

the procedure intended to afford the constitutional due process rights to the Plaintiff property

owners. Yet, the HE Decision states that the Hearing Examiner is reviewing whether the Staff

determination “is correct.” HE Decision at 12, ¶ I; AR 333. That violates the de novo review

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required by the County Code, and hence the HE Decision followed an, “unlawful procedure

or failed to follow a prescribed process,” requiring reversal. RCW 36.70C.130(1)(a).

Otherwise, the Court should take notice of the flawed process that culminated in the

issuance of the HE Decision. The application history reflected in the Administrative Record

is one of constant Staff attempts to kill the Project or avoid a decision on the merits. Initially

Staff person Erin Osborn, without a hearing or completion of review, sent a letter to Plaintiff

Julie Carney declaring that the County has “made a determination” that the sewer could not be

extended requiring denial of the CUP application. AR 686-689. Among other problems, the

letter references Policy 2S-2, but fails to recognize or discuss the requirement that the Policy

requires implementing development regulations. The letter ends with a threat by stating that

the Applicants should, “reconsider the financial consequences of your decision to go

forward.” AR 689. Upon objection that the determination was premature, the County

withdrew the letter and issued a new letter explaining that the review was preliminary and

removed the threat. AR 690-692.

Much later, a new Staff person, Amy Keenan, issued a letter declaring that sewer

could not be extended to the project “which is currently outside the urban growth area,” a

false statement. AR 823. That letter was re-issued but failed to correct the mistake (AR 825-

826), and then the letter was re-issued again to correct the errors and to remove the premature

determination about whether sewer could be extended to the Project. AR 827-828.12

Subsequently, Staff attempted to thwart important procedures required in State law by

declaring that the County would send the application to the Hearing Examiner without

12

The Applicants had appealed the premature “determination” about sewer to the Hearing Examiner, and the

third letter mooted the appeal. However, these appeal documents, part of the application history, appear to have

been mistakenly left out of the Administrative Record.

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completing SEPA. AR 924. The Applicants took substantial efforts to get that erroneous

determination reversed. AR 924-929. Then, the County issued a defective SEPA Mitigated

Determination of Non-Significance (AR 1214), and the Applicants had to object again. AR

939-942. Again, the County had to correct its errors and issued a Revised SEPA Mitigated

Determination of Non-Significance (AR 944).13

Finally, the matter was sent to the Hearing Examiner. However, the Staff Report

reflects a flawed review process not based on all the facts and circumstances. Instead, the

Staff Report relied heavily on the first Erin Osborn letter that had been withdrawn. AR 1106-

1107. Thus, not only was the Staff Report a rubber stamp of a preliminary determination, the

Staff Report perpetrated numerous false premises and misrepresentations as a basis for that

determination. These flaws undercut the conclusions that sewer could not be extended and

that the site was rural nature so the Project would not be compatible. AR 1091, 1106-1107.

These gross errors included:

• The site was in the Long Term Planning Area.

False: The site was in the Short Term and Long Planning Areas.

• The building footprint was 230,435 square feet.

False: That was the total square feet with multiple stories, not the footprint,

which was substantially less.

• There is no existing public water or sewer serving the site.

False: The house on the site is served with water from the District. Existing

sewer is 340 feet away.

• The Project does not meet fire service standards, citing the Fire Marshal.

False: Applicants had a service agreement with the Fire District. AR 1183.

• The Project is served by an unimproved dirt track access.

False: The Project is served by a Lincoln Road, a paved public road, just a

block from a State Highway, SR-548.

13

The Applicants appealed again; mooted by the revision. Again,. left out of the Administrative Record.

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The Staff Report recites that it is “for these reasons,” including all of the above errors, that the

Staff’s position was that the CUP application should be denied because sewer should not be

extended and the Project was incompatible with the rural nature of the area. AR 1107.

And, the Staff Report falsely presented Comprehensive Plan Policy 2S-2, prohibiting

sewer extensions to the Long Term Planning Area, as self-executing. The Applicants raised

this error along with the error that Comprehensive Plan polices do not regulate individual

projects. At that point, the County Attorney jumped in with the new and different

interpretation that the first CUP criterion incorporated all the policies in the Comprehensive

Plan, but failing to address non-self-executing nature of Policy 2S-2.

Even though the Applicant provided the correct information at the hearing, the HE

Decision failed to reflect those corrections and instead quoted directly from the Staff Report

with all the same false premises and misrepresentations as part of its Conclusions of Law. AR

334-337.14

The HE Decision relied on incorrect information and also relied on the County

interpretation created for the first time in this proceeding. At a minimum, this Court should

conclude that the HE Decision is flawed and is not entitled to any deference.

C. Violation of Appearance of Fairness

In addition to affording no deference to the County, the above circumstances in the

application process and hearing raise the issue of whether the totality of circumstances

constitute a violation of the appearance of fairness doctrine. State law related to appearance

of fairness is clear that instances outside the statutory proscriptions may violate a citizen’s

rights: “Nothing in this chapter prohibits challenges to local land use decisions where actual

violations of an individual’s right to a fair hearing can be demonstrated.” RCW 42.36.110.

14

Plaintiffs formally challenge these points to the extent they are findings of fact.

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Thus, many other key aspects of the doctrine of appearance of fairness remain applicable via

the common law. In Chrobuck v. Snohomish County, 78 Wn.2d 858 (1971), our State

Supreme Court extended the common law doctrine to find a violation of appearance of

fairness based on cumulative circumstances causing an aura of impropriety:

Circumstances or occurrences arising in the course of such processes

which, by their appearance, tend to undermine and dissipate

confidence in the exercise of the zoning power, however innocent they

might otherwise be, must be scrutinized with care and with the view

that the evil sought to be remedied lies not only in the elimination of

actual bias, prejudice, improper influence or favoritism, but also in

the curbing of conditions which, by their very existence, tend to

create suspicion, generate misinterpretation, and cast a pall of

partiality, impropriety, conflict of interest or prejudgment over the proceedings to which they relate.

Id. at 868-869 (emphasis added). The appearance of fairness doctrine as described in

Chrobuck is a common law issue addressed by the Court. The courts typically address the

appearance of fairness doctrine as part of constitutional due process considerations. See, e.g.,

Clausing v. State, 90 Wn. App. 863 (1998). The totality of circumstances demonstrates a

violation of appearance of fairness, and hence an, “unlawful procedure,” requiring reversal.

RCW 36.70C.130(1)(a).

D. Supplemental Evidence Further Supporting Rejection of Deference and

Violation of Appearance of Fairness

The Order Authorizing Discovery in LUPA requires Plaintiffs to, “disclose any facts,

documents or deposition testimony at the time of filing their Opening Brief.” The Order on

Initial Hearing – LUPA states that a motion is required for any supplements to the

Administrative Record if not agreed to by the parties. Thus, Plaintiffs will disclose herein the

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supplemental evidence, and then cooperate with the County to determine whether there is

agreement on submission or whether a motion is required.

Plaintiffs disclose the following as supplemental evidence that Plaintiffs will seek to

have considered:

• Deposition of Erin Osborn and Exhibits 1-17.

• Deposition of Amy Keenan and Exhibits 18-28.

• Deposition of Tyler Schroeder.

• Declaration of William T. Geyer, Docket #14 (filed as part of the Motion for

Discovery in LUPA.

The County appeared at the depositions and has obtained the transcripts thereof. Generally

and as an offer of proof, these depositions would tend to show at least the following: (1) these

key staff members were not aware that Policy 2S-2 was not self-executing; (2) that these key

staff members were provided no training in permit review by the County; (3) that Erin Osborn

was unqualified and later removed from application review after a meeting with Julie Carney

and Bill Geyer; (4) that subsequent project review by Amy Keenan accepted plain errors

made by Erin Osborn, in part due to the failure to ever visit the Project site; (5) despite

avowing neutrality, Amy Keenan celebrated the “victory” which shows bias; and, (6) Staff

reviewed compliance with County requirements only and did not consider impacts to

constitutionally protected property rights and benefits to the community. The Geyer

Declaration supports that Erin Osborn exhibited bias toward the Project.

These facts would support two aspects of the Plaintiffs’ case. First, that Staff’s

position is not entitled to any deference. Second, the facts support the violation of appearance

of fairness claim due to bias, prejudgment, and impropriety.

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CONCLUSION

The HE Decision is contrary to a fundamental principle in the Growth Management

Act—individual projects are governed by development regulations and not by the goals and

policies of the Comprehensive Plan. The first CUP criterion cannot be legally interpreted to

mean that all the policies in the Comprehensive Plan are incorporated as Zoning Ordinance as

rules and development regulations. That is a radical departure from the GMA framework.

Policy 2S-2 stating that sewer shall not be extended to the Long Term Planning Areas

was still only a Policy, regardless of the terminology, and also was not a self-executing

policy. The Policy expressly required development regulations to be implemented. Thus, the

sewer restriction in Policy 2S-2 cannot be applied to a Project level decision. In contrast, the

Urban Residential UR development regulations specifically address the proper uses in the

Short Term versus Long Term Planning Areas in a manner that supports sewer extension

since without sewer the uses are meaningless. Those express development regulations

partially implement the sewer restriction in Policy 2S-2, while balancing that Policy with

numerous other policies consistent with the GMA, the Comprehensive Plan, and property

rights. The HE Decision, adopted by the County Council, improperly elevates the Staff’s

policy vision above the legally applicable rules. This Court must act to reverse the County’s

illegal decision and allow the Lincoln Home Retirement Center to move forward to approval.

RESPECTFULLY SUBMITTED this 21st day of October, 2015.


Charles A. Klinge [digital copy] By:

Charles A. Klinge, WSBA #26093

Attorneys for Plaintiffs and Petitioners

lupa opening brief final

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