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FILED

FEB

0I

2016

SONYA KRASKI

COUNTY CLERK

SNOHOMISH CO. WASH.

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SUPERIOR COURT OF WASHINGTON

FOR SNOHOMISH COUNTY

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JULIE CARNEY And MICHAEL E. REID,

No. 15-2-04222-8

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Plaintiffs,

DECISION AND ORDER GRANTING

LAND USE PETITION

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vs.

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WHATCOM COUNTY and BIRCH BAY

V/ATER AND SEV/ER DISTRICT,
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Defendants.

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This matter came before the Court on the Petitionerslaintif' Land Use Petition, under

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the Land Use Petition Act, Chapter 36.70C RCW, seeking review of a final decision by

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Respondent/Defendant Whatcom County. Having considered the Land Use Petition, brie in

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support and in opposition, the Administrative Record, and oral argument, the Court rules as

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follows:

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1.

Plaintif Julie Camey and Michael E. Reid filed

Conditional Use Permit (CUP)

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application in November 2009 which the County determined was complete. The CUP

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application sought approval for the Lincoln Park Retirement Home Center which proposes 170

STEPHENS

&KLINGE LLP

10900 NE 8th Street, Suite 1325

DECISION AND ORDER

GRANTING LAND USE PETITION

Bellevue, WA 98004

-- I

0RIGINAL

2s)4s3'6206

retirement suites for residential assisted care (55 and older) and 68 suites for Alztreimer's care

patients on 17 acres in unincorporated \ilhatcom Countybetween Birch Bay and the City

Blaine. The Project application is vested based on the complete application date to the

regulations in effect prior'to 2010 and to the 2005/2009 Comprehensive Plan. Under those rules,

the County designated the Project site as within the Blaine Urban Growth Area with the site split

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between Short Term Planning Area and Long Term Planning

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Area. The Project site is within the

water and sewer service area of the Birch Bay r/ater and Sewer Distric! and the District

provided an availabil letter that determined water and sewer service were available.

Plaintiffs Conditional Use Permit application was denied bythe V/hatcom

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CowttyHearing Examiner in a written decision entitled Fndngs of Fact, Cotlusions of l-aw,

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ad Decsion datdJanuary 21,2015. Plaintitrs appealed the denial

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the Whatcom County Couneil. The Council denied the appeal in a written,decision entitled

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Fndngs of Fact, Conclusions of Lttt, and Decsion dateMay 12,2015. The Council decision
the findings,of fact and conclusions of law in the Hearing Examiner Decision.

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bythe Hearing Examinerto

3.

Plaintiffs Julie Carney and Michael E. Reid filed atimely Land Use Petition

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under the Land Use Petition

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County on the Conditional Use Permit application. The land use decision under review is the

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combination of the County Council decision and the Hearing Examiner'Decision incorporated by

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the Council. This land use decision is now before the Court on a LUPA petition and the Court is

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being asked, in the role of an appellate judge, to overturn the County's decision.

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4.

Act Chapter 36.70C RCW, challenging the land use decisin of the

The Hearing Examiner found that the Project is in compliance with all County

regulations with the excqltion of the issue of sewer. The Hearing Examiner followed the

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STEPITENS &KLTNGE LLP

10900 NE Sth Street, Suit 1325

DECISION AND'ORDER
GRANTING I,AND USE PETMON --

Bellevue, WA 98004

(42s) 453-6206

Planning'Staffrecommendation in relying upon Comprehensive Plan Policy 2S-2 which states in

relevant part:

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development regulations

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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

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No sewer shall be extended outside

a Short

Term Plaruring Area.

The Planning Staffrecommended denial based on the proposed sewer extending

beyond the Short Term Planning Area portion of the Urban Growth Area (UGA) and into the

Long Term Planning Area portion ofthe UGA. The Hearing Examiner concluded that because

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that sewer extends into the l,ong Term Planning Area of the UGA that the project could not go

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forward, and denied the Conditional Use Permit application.

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6.

The Court highlights a few background points. First, at the hearing, there was no

public opposition to the Project, and there was certainly ample time for opposition to occur.
the Hearing Examiner recognized that there apparently was, after some investigation, in

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2005 a County ordinance for the Blaine Urban Growth Area (Ord. # 2005-010) which did not

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have a development restriction for exte,nding sewer into a Long Term Planning Area ofthe

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Urban Growth Area. Third, there was also a concuffeney letter from Birch Bay Water and

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Sewer District, which is the organization that conholled the sewer hookup. That concurrency

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letter indicated that the Birch Bay Water and Sewer Disict was ready to allow the hoolcup,

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which would go through the Long Term Planning Area ofthe Urban Growth Area, Finally, the

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fact that there was an existing sewer line north of the Project already within in the Iong Term

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Planning Area of the Urban Growth Area, and this Project seeks to consbrrct a sewerpipe

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STEPIGI.IS

&KLINGELLP

10900 NE 8th Strset, Suite 1325

Bellevuo, WA 98004

(42s)4s3-6206

ttyougb the Iong Term planning Area and hook up with that existing sewer line controlled by

the Birch BayV/ater and Sewer Dishict.

7.

The legal standards applicable to this matter are that the burden ofproof is on the
number of factors-the

plaintiffs to demonstrate that they are entitled to relief under any one of

LUpA standards for granting relief in RCW 36.70C.130. Any one of these factors would be

and the
sufficient to uphold their appeal. The Superior Court has jurisdiction over these matters,

The LUPA
Court finds also that this is not a situation in which there is a dispute over the facts.

standards for grant-ing relief in RCW 36.70C.130 afe as follows:

(a) The body or officer that made the land use decision engaged in
unlawfulp.""a*" or failed to follow a prascribed process, unless the
enor was harmless;
(b) The land use decision is an erroneous interpretation of thc law,
after,allowing for suchdefere,nce as is due the constnction of a law by
a local jurisdiction with expertise;
(") T land use decisin is not supported by evidence that is
substantial whe,n viewed in light of the whole record before the court;
(d) The land use decision is a clearly effoneous aplication of the law

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to the facts;
(e) The land use decision is outside the authority or jurisdiction of the
body or officer making the decision; or
( '!1" land use decision violates the constitutional rigbts of the party
seeking relief.

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8.

With respect to (a), the proper process was followed in making the land use

presibed process.
decision, and so there was no unlawful procedure or failure to follow a

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V/.ith respect to (b), this is o:rux of the matter in this case and is addressed below.

With respect to (c), the.case really presents

a legal issue and not the

tlpe of

faotual dispute addressed in this factor.

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With respect to (d), the Court finds that this,clearly erroneous standard does not

is a sewer line
apply because the facts here are undiqputed. V/e know that the facts are that there
STEPHENS

&KLINGELLP

10900 NE 8th Street, Suite 1325

DECISIONA}TD ORDER
GRANTING LA}TD USE PETITION

Bellevue, W.A'98004

-.

(425)453-6206

proposed to go from the Project througb a Long Term Planning Area portion of the Urban

Growth Area to hookup to the sewer stub of the Birch Bay Water and Sewer District.

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12.

With respect to (e), the Hearing Examiner had the authority to make the initial

decision and the County Council had thq authority to decide the appeal.

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rWith respect to (f), this standard addresses a violation of,constitutional rigts

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14.

Plaintiffs also

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raised

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^challenge
to

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^the Hearing Examiner decision based on

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violation of appearan'ce,of faimess or ex-parte contacts. The Corut finds that Plaintiffs have not

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demonsftated a violation in that regard.

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Thekeyissueiswithrespeetto ) andwhetherthisDecisionbytheHearing

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Examiner was an"erroneous interpretation of the law after allowing for such defere,nce that is due

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to,the constrction ofthe,law by a local jurisdiction with expertise. It is undisputed that with

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respect to deference to.the Planning Statr, and its Technical Review Committeg there were soine

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errors contained in the Staff Report. Those errors cause the Court to be somewhat skeptical

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about their reommended decision, but not to.the pointwhere the Court believes,that the

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recommendation should simplybe thrown out. The Court is affording defrence, but even great

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deference does not mean complete deference. It is a factor. The Planning Staffwas very focused

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on the concern ofleapfrogging or sprawl into the Long Term Planning.Area. The issue raised

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was if the County allows the development of this Froject by sending the sewer through or into

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the tong Term Planning Area of the Urban Growttr Area, whether that

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firther urban development. That wasrthe argument by Planning Staff The Court had questions

DECISIONA.TD ORDER
GRA}TTING LAND USE PETMON

will

open up that area to

STEPII.IS & KLINGE LLP

10900 NE Sth.Strept, Suite 1325
Bellevue, V/A 98004

--

(425)453-6206

about whether there was some sort of scientific fact outside the Court's review of case law

regarding what seems to be an understanding in urban planning that such future development

might be expected. The Plaruring Stafftook that position and the Hearing Examiner to some

extent relied upon that

position, and the Court gave it significant deference and gave deference to that Report, but the

Court does not find it dispositive to the sewer issue.

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view. The Court considered the amount of deference afforded to that

The major issue here is the effect of the Comprehensive Plan Policy in the

context of the fact that this was a request for a conditional use

on the part of the Hearing Examiner. The County argues that the Comprehensive Plan Policy

permi! which is a discretionary act

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required sfrict adherence to the rule that no sewer shall go through a Iong Term Planning Area

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of the Urban Growth Area" and that is what theHearing Examiner concluded. The Hearing
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Examiner required strict adherence. The Plaintiffs argue that there cannot be shict adherence

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here and that this is an erroneous interpretation of the

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Timberland and many of the cases reviewed by the Court is essentially that you have to have the

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abil

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meet

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law. That argument citing Viking and

to get a conditional use permit and the County cannot deny that permit based on failing to

stict

adherence with the Comprehensive Plan.

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Based on the Urban Residential

ZoitngDishict development regulations,

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conditional use permits are allowed for the following uses or developments in Inng Term

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Planning Areas: public, parochal, private schools; churches, religious training institutions,

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summer camps; state education facilities (which include state community colleges and

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universities); retirementhomes, state-licensed largeboardinghomes, and mental health facilities.

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All of these

uses or developmelrts are allowed

in

long Term Planning Area of the Urban

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Growth Area. The Court finds that if those uses are allowed in a long-term urban development

STEPHENS

&KLn.cELLP

10900 NE 8th Street, Suite 1325

DECISION AND ORDER

GRA}TTING LAiID USE PETITION.- 6

Bellernre, V/498004

(42s) 4s3$206

area, then those uses

required, then strict adherence to the Comprehe,nsive Plan is inconsistent

with what is allowed by

the Code.

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will require

sewer to those developments.

If that's the cas-sewer is

The next point relates to the Code requirements for granting Conditional
Use

Permits, which states that the Hearing Examiner "shall find" that the project: ..Will
be

harmonious and in accordance with the general and specific objectives of TVhatcom
County,s

Comprehensive Plan and zoning regulations." Whatcom County Code 20.84

the word ushall" in ttre Code could be infened as meaning strict adherence. It could
mean that

is incorporated by reference. The Corrt disagrees with the Hearing Examiner's

and County,s

.2z}(l).

The use

of

it

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conclusion that the entire Comprehensive Plan is incorporated byrefere,lrce.

It is possible to

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incorporate sections and the applicable points, but that is not what the Code says.
It does not s,py
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incorporated by reference. It sa the use or project must be harmonious. Harmonious

can mea'

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aligned with or consistent with; it does not mean exactly. The situation is that
the Hearing

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Examiner can allow a conditional use permia and the Code uses the word harmonious,
which is

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not shict adherence. Another consideration is the language ofthe policyrequiring

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implementation in the County development regulations, and that there has been
no

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implemelrtation of that Policr in the County developmelrt regulations. These points

raise the

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issue about how should the Court interpret these provisions. Also,
another point considered

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the Court is that the Comprehensive Plan is advisory in nature; it is not

the zoning

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ordinance/development regulations. The development regulations confrol,

and Vkingand its

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progeny and all of the other cases have instructed the court in that
regard.

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STEPHENS

DECISION AND ORDER

GRANTINC LAND USE PETMON -.

&KLINGELLP

10900 NE 8th Street, Suite 1325

Bellevue, WA 98004
(42s) 4s3-6206

by

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Having reviewed all of the material, and given the fact that the properly owners

had a vested right and that the Code has changed with respect to the Blaine Urban Growth Area,

the Court

will

grant the LUPA petition and adopt the following conclusions:

The Whatcom County Code 20.84.220(l) does not incorporate the policies of
Whatcom County's Comprehensive Plan, and said Code provision requires
only general conformance with the Comprehensive Plan, not strict adherence.

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Former Comprehensive Plan Policy 2S-2 has no regulatory effect on its own
and can onlybe implemented through development regulations and was not
imple,mented bythe Countypror to Petitioners' CUP application.

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The onlybasis for denial of,the CUP is noncompliance with Policy 2S-2 and
its statement that sewer shall not be extended outside the Short Term
Planning Area. Since that Policy has no independent affect, there is no
rernaining basis forthe denial and a remand is necessary so the County can
make the modifications required to approve Plaintiffs' Condition Use Permit

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Application.

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Forthe foregoingreasons,IT IS HEREBY

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ORDERED'

a.

Petitioners' Land Use Petition is GRANTED.

b.

The De.cision of the Hearing Examiner, and th Decision ofthe County

Council incorporating that Decisioq are REVERSED

c. The matter is REMANDED

to'Whatcom County for modifications ofits

decision that result in approval of Plaintiffs/Petitioners' Conditional Use
Permit Application.

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DATED this 9 day of February, 2016.

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Presentedby:

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Ar

orriMa

y /o/"*

STEPHENS &.KLINGE LLP

By:
Charles A. Klinge,

/us
f

DECISION AND ORDER

GRANTING LAND USE PETITION

--

STEPITENS &KLTNGELLP
0900 NE 8th Street, Suite 1325

Bellevue, rA 98004
(425)4s3-6206