Cecile B. Woods v. Kittitas County, et al.

Petitioner, Cecile B. Woods, seeks review of a Court of

Appeals ruling that the superior court lacks subject matter jurisdiction under the

Land Use Petition Act (LUPA), chapter 36.70C RCW, to review a claim that a site-

specific rezone application does not comply with the Growth Management Act

(GMA), chapter 36.70A RCW. Woods claims the appellate court decision conflicts

with our decision in Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d

169, 4 P.3d 123 (2000). She also argues the Court of Appeals improperly decided

other LUPA issues she raised at the superior court because she did not raise them on

appeal and the superior court did not decide them.

Respondents, Evergreen Meadows, LLC, Stuart Ridge, LLC, Steele Vista,

LLC, and Cle Elum's Sapphire Skies, LLC (hereinafter collectively referred to as

CESS), and Kittitas County argue that the Court of Appeals correctly held that the

superior court lacks subject matter jurisdiction to decide whether a site-specific

rezone complies with the GMA. CESS further argues that the Court of Appeals

properly addressed and decided Woods' remaining LUPA issues and they do not

warrant further review by this court.

We affirm the Court of Appeals and hold that the superior court lacks subject

matter jurisdiction under LUPA to decide whether a site-specific land use decision

complies with the GMA. The superior court may decide only whether a site-

specific land use decision complies with a comprehensive plan and/or development

regulation. Because we stand in the superior court's position on review of an

administrative decision, Woods' remaining LUPA issues are properly before us. We

conclude that the Kittitas County Board of County Commissioners' (BOCC)

decision to approve CESS's site-specific rezone application was supported by

substantial evidence and was not an erroneous interpretation of the law or a clearly

erroneous application of the law to the facts.

I. STATEMENT OF THE CASE

CESS owns 251.63 acres of land in Kittitas County. CESS's property was

originally zoned forest and range (F&R). The F&R zone, which was adopted in

1974, creates areas in which natural resource management is the highest priority and

where uses incompatible with resource management are discouraged. Kittitas

County Code (KCC) 17.56.010. Land zoned F&R generally permits minimum lot
sizes of 20 acres. Former KCC 17.56.040(A) (1992).1 Former KCC 17.56.020

(1996) lists permitted uses in the F&R zone including single-family homes, lodges,

agriculture, livestock, forestry, mining, quarry mining, and home occupations that do

not produce noise. Former KCC 17.56.030 (2001) lists conditional uses in the F&R

zone including airports, sawmills, firing ranges, temporary asphalt plants, feedlots,

public sanitary landfills, utility substations, and farm labor shelters.

In January 2004, CESS applied to the county for a site-specific rezone from

F&R to Rural-3 (R-3). The purpose and intent of the R-3 zone, which was adopted

in 1992, is to "provide areas where residential development may occur on a low

density basis." KCC 17.30.010. A primary goal in siting R-3 zones "will be to

minimize adverse effects on adjacent natural resource lands." Id. Land zoned R-3

generally permits minimum lot sizes of three acres served by individual wells and

septic tanks. Former KCC 17.30.040(A) (1992). Former KCC 17.30.020 (1996)

lists permitted uses in the R-3 zone including single-family homes, lodges,

agriculture, forestry, home occupations that do not produce noise, and mining. Like

the F&R zone, the R-3 zone includes a variety of conditional uses, but the

conditional uses allowed in the R-3 zone are generally less intensive than those

allowed in the F&R zone. Former KCC 17.30.030 (1992) lists the conditional uses

allowed in the R-3 zone including campgrounds, guest ranches, group homes, golf

courses, mining, gas and oil exploration, home occupations that produce noise, and

miniwarehouses.

Both the F&R and R-3 zones permit minimum lot sizes of one-half acre for

lots within platted cluster subdivisions served by public water and sewer systems.

Former KCC 17.56.040(B); former KCC 17.30.040(B). "[C]luster" subdivisions

are "three or more buildable lots in which all lots are contiguous." Former KCC

17.65.020(A) (1996), repealed by Ord. 2005-35 (2005). The permitted uses in a

cluster subdivision "shall be those of the underlying zone and limited to single-

family detached residential uses." Former KCC 17.65.030 (1996), repealed by Ord.

2005-35 (2005). The maximum allowable percentage of cluster acreage is 30

percent for F&R zones and 40 percent for R-3 zones. Former KCC 17.65.040

(1996), repealed by Ord. 2005-35 (2005).

The Kittitas County Planning Commission (KCPC) held a public meeting to

discuss the site-specific rezone on April 26, 2004. The day of the public meeting,

Mike Alberg, chairperson of the KCPC, received a letter from 1000 Friends of

Washington (1000 Friends), which was distributed to commission members, urging

denial of the rezone because it claimed the GMA requires a minimum density of five

acres in rural areas and the R-3 zone allows a density of only three acres. The letter

cited rulings of the Court of Appeals and the three Growth Management Hearings

Boards (GMHBs) as the basis for 1000 Friends' claim that the GMA requires a five

acre minimum density in rural areas.

After deliberation, KCPC approved the application by a vote of five-to-one.

The BOCC approved the site-specific rezone by Ordinance 2004-15 on June 1,

2004.

In June 2004, Woods filed a LUPA petition, RCW 36.70C.070, in superior

court, challenging the BOCC decision. Her petition claimed the decision (1)

erroneously interpreted the law because it used incomplete findings and site-specific

rezone standards and failed to include determinations regarding changed

circumstances and consistency with the GMA, (2) was not supported by substantial

evidence in the record, and (3) was a clearly erroneous application of the law to the
facts because the environmental review was incomplete2 and failed to disclose

contemporaneous rezones in upper Kittitas County.3 Woods argued that Wenatchee

Sportsmen gave the superior court subject matter jurisdiction to decide whether a

site-specific rezone complies with the GMA. Clerk's Papers (CP) at 92, 98.

The superior court granted Woods' petition and reversed the rezone. CP at

13-14. In its letter ruling, the trial court determined it had subject matter jurisdiction

over the site-specific rezone. The court recognized, "[a]lthough the GMHB has

jurisdiction to determine whether Kittitas County's RR-3 [sic] zoning ordinance

violates the GMA, it does not have jurisdiction to review whether the BOCC's

decision to rezone the subject property as RR-3 [sic] violates the GMA as applied

by allowing urban growth (RR-3) [sic] in a rural area." CP at 11 (emphasis added).

The trial court found:

Whether this RR-3 [sic] rezone is lawful depends on where the subject
property is located within the county. In other words, the RR-3 [sic]
ordinance may be consistent with the GMA when applied to some
properties and inconsistent when applied to others. Since the property
in this case is located outside of a designated UGA [urban growth
area], a rezone that allows for development which is urban in nature
violates the GMA. The fact that the property may never be fully built
out is irrelevant to whether the application of RR-3 [sic] to this
property has the potential to turn a rural area into an area of urban
growth density.

Id. The trial court did not explain the reasoning for its conclusion that the R-3 zone

is urban in nature. Lastly, because of the trial court's decision that "BOCC erred by

granting a rezone which allows for urban growth density in a rural area," it was

unnecessary to reach Woods' remaining LUPA issues. Id. at 12. CESS and the

county appealed the superior court's decision to Division Three of the Court of

Appeals. Woods v. Kittitas County, 130 Wn. App. 573, 123 P.3d 883 (2005).

The Court of Appeals held that the superior court had subject matter

jurisdiction to decide whether the rezone decision was consistent with the county's

comprehensive plan but not whether the rezone complied with the GMA. Id. at 576-

77, 2. It concluded Wenatchee Sportsmen held only that a party may challenge a

site-specific rezone in superior court under LUPA based on incompatibility with the

comprehensive plan, not noncompliance with the GMA. Id. at 583, 17. The

appellate court declined to consider the rezone's compliance with the GMA and

reviewed only the properly remaining LUPA issues. Id. at 18. It concluded that

BOCC's decision was supported by sufficient evidence and BOCC did not clearly

misapply the law when it determined that the site-specific rezone complied with the

county's comprehensive plan. Id. at 588-89, 28.

Woods petitioned this court for review of the Court of Appeals reversal of the

superior court decision, which we granted. Woods v. Kittitas County, 158 Wn.2d

1001, 143 P.3d 829 (2006).

II. ISSUES

A. Does the superior court have subject matter jurisdiction under LUPA to
decide whether site-specific land use decisions comply with the GMA?

B. Should this court reach Woods' remaining LUPA issues and, if so, did BOCC
properly approve CESS's rezone application?

III. ANALYSIS

We review questions of statutory interpretation de novo. Berrocal v.

Fernandez, 155 Wn.2d 585, 590, 5, 121 P.3d 82 (2005). A reviewing court's

primary goal is to determine and give effect to the legislature's intent and purpose in

creating the statute. Am. Cont'l Ins. Co. v. Steen, 151 Wn.2d 512, 518, 91 P.3d 864

(2004); Dep't of Ecology v. Campbell & Gwinn LLC, 146 Wn.2d 1, 10-11, 43 P.3d

4 (2002). "[I]f the statute's meaning is plain on its face, then the court must give

effect to that plain meaning as an expression of legislative intent." Campbell, 146

Wn.2d at 9-10 (citing State v. J.M., 144 Wn.2d 472, 480, 28 P.3d 720 (2001)).

A. The superior court lacks subject matter jurisdiction to decide whether a site-
specific rezone complies with the GMA

Woods claims that in Wenatchee Sportsmen this court expressly recognized

that the GMA and LUPA created two separate avenues for a petitioner to seek

review of whether a land use decision complies with the GMA, and we held that the

superior court has jurisdiction to determine whether site-specific land use decisions

comply with the GMA. CESS disputes Woods' interpretation of our holding in

Wenatchee Sportsmen. It argues the superior court lacks subject matter jurisdiction

to decide any questions regarding compliance with the GMA, even where a party

challenges a site-specific land use decision in a LUPA petition. CESS also argues

that Woods' real target was not the rezone, but the R-3 zone in general.

To determine whether the superior court has subject matter jurisdiction to

decide whether site-specific land use decisions comply with the GMA, we first

examine the framework of the GMA and LUPA.

The legislature enacted the GMA in 1990 to address concerns related to

"uncoordinated and unplanned growth" in the State and "a lack of common goals

expressing the public's interest in the conservation and the wise use of our lands."

RCW 36.70A.010. The GMA requires counties to develop a "'comprehensive

plan,'" which sets out the "generalized coordinated land use policy statement" of

the county's governing body. Former RCW 36.70A.030(4) (1997). In essence,

"[t]he comprehensive plan is the central nervous system of the GMA. It receives

and processes all relevant information and sends policy signals to shape public and

private behavior." Richard L. Settle, Washington's Growth Management

Revolution Goes to Court, 23 Seattle U. L. Rev. 5, 26 (1999).

The comprehensive plan must designate an urban growth area (UGA) "within

which urban growth shall be encouraged and outside of which growth can occur
only if it is not urban in nature."4 RCW 36.70A.110(1). The plan must also include

a rural element, which may allow for a variety of rural densities, including clustering

and density transfers. Former RCW 36.70A.070(5)(b) (2003). The rural element

should foster land use that is "compatible with the use of the land by wildlife" and

will "enhance the rural sense of community and quality of life," although the GMA

acknowledges that "rural counties must have flexibility to create opportunities for

business development." RCW 36.70A.011. The GMA also recognizes that

circumstances may vary by county and allows counties to consider local

circumstances when determining rural density and use patterns as long as they

create a written record explaining how the rural element harmonizes with the GMA

planning goals. Former RCW 36.70A.070(5)(a).

Along with a comprehensive plan, the GMA requires counties to adopt

development regulations that are "consistent with and implement the comprehensive

plan." RCW 36.70A.040(3)(d), (4)(d). "'Development regulations'" include, but

are not limited to, zoning ordinances. Former RCW 36.70A.030(7) (1997). These

regulations must be adopted within six months from the time of the comprehensive

plan's adoption. WAC 365-195-810(1).

The legislature created three GMHBs in 1991 to hear petitions alleging

violations of the GMA. RCW 36.70A.250, .280. GMHBs have limited jurisdiction

to decide only petitions challenging comprehensive plans, development regulations,

or permanent amendments to comprehensive plans or development regulations.

Wenatchee Sportsmen, 141 Wn.2d at 178; RCW 36.70A.290(2). Petitions

challenging whether a comprehensive plan or development regulation complies with

the GMA "must be filed within sixty days after publication by the legislative bodies

of the county or city." RCW 36.70A.290(2) (emphasis added).

GMHBs do not have jurisdiction to decide challenges to site-specific land use

decisions because site-specific land use decisions do not qualify as comprehensive

plans or development regulations. Former RCW 36.70A.030(7); RCW


36.70B.020(4); Wenatchee Sportsmen, 141 Wn.2d at 179. A challenge to a site-

specific land use decision should be brought in a LUPA petition at superior court.

Wenatchee Sportsmen, 141 Wn.2d at 179 n.1.

LUPA grants the superior court exclusive jurisdiction to review a local

jurisdiction's land use decisions, with the exception of decisions subject to review

by bodies such as the GMHBs. RCW 36.70C.030(1)(a)(ii). The legislature's

purpose in enacting LUPA was to "establish[] uniform, expedited appeal procedures
and uniform criteria for reviewing [land use] decisions [by local jurisdictions],[5] in

order to provide consistent, predictable, and timely judicial review." RCW

36.70C.010. A "'[l]and use decision'" is:

[A] final determination by a local jurisdiction's body or officer with the
highest level of authority to make the determination, including those
with authority to hear appeals, on:

(a) An application for a project permit or other governmental
approval required by law before real property may be improved,
developed, modified, sold, transferred, or used, but excluding
applications for permits or approvals to use, vacate, or transfer streets,
parks, and similar types of public property; excluding applications for
legislative approvals such as area-wide rezones and annexations; and
excluding applications for business licenses.

RCW 36.70C.020(1). A site-specific rezone is a project permit, RCW

Having established the statutory framework, we next examine our holding in

Wenatchee Sportsmen to determine whether it supports Woods' claim that we

explicitly recognized that the GMA and LUPA established two different avenues for

review of a local jurisdiction's compliance with the GMA. Wenatchee Sportsmen

involved Chelan County's approval of a developer's request to rezone its property

and a subsequent subdivision plat application. 141 Wn.2d at 174. Wenatchee

Sportsmen filed a LUPA petition in superior court challenging the county's approval

of the subdivision, but not the earlier rezone. Id. The superior court concluded the
subdivision constituted urban growth outside the county's interim UGA (IUGA)6

under the GMA and reversed the county's approval. Id. at 174-75. The developer

sought direct review of the superior court's decision with this court, which we

granted. Id. at 175.

We addressed only the narrow question of whether the petitioner's challenge

to the subdivision constituted a collateral challenge to the earlier site-specific rezone

of the property. Id. at 175-77. In the course of our analysis, we observed that had

the property owner timely challenged the earlier rezone, the superior court "could

have considered whether the minimum density allowed by the [zoning ordinance]

was compatible with the [county's] IUGA." Id. at 181-82. We also noted that

having not timely challenged the rezone itself, "[t]he only issue that can be raised

concerning the rezone is whether the plat application conforms to the zoning

requirements." Id. at 182 (emphasis added). These two statements indicate that we

viewed the superior court's jurisdiction as limited to determining whether the rezone

complied with the applicable zoning requirements or the county's IUGA, but not the

GMA.7 The inference that we did not view the superior court's subject matter

jurisdiction as extending to a review of compliance with the GMA is borne out by

Justice Talmadge's vehement criticism of the majority for "ignor[ing] the GMA" in

his dissenting opinion. Id. at 184 (Talmadge, J., dissenting).

However, Wenatchee Sportsmen also suggests that a superior court may have

subject matter jurisdiction over whether a site-specific rezone complies with the

GMA. We noted that "[i]f a GMHB does not have jurisdiction to consider a

petition, it must be filed in superior court under LUPA." Id. at 178. More

specifically, "[c]hallenges to a decision concerning a site-specific rezone should be

brought by means of a LUPA petition in superior court." Id. at 179 n.1. A GMHB

does not have jurisdiction to hear a petition alleging that a site-specific rezone

violates the GMA. See id. at 178. Thus, one could argue that a superior court has

exclusive jurisdiction to determine whether the site-specific rezone complies with

the GMA. The flaw in this reasoning is that the GMA does not explicitly apply to

site-specific rezones and the GMA has no provision that it is to be liberally

construed. Skagit Surveyors & Eng'rs, LLC v. Friends of Skagit County, 135

Wn.2d 542, 565, 958 P.2d 962 (1998).8 Thus, the pivotal question is not whether

the superior court has subject matter jurisdiction over challenges to project permits

under the GMA, but whether there is statutory support for such a claim.

B. The GMA does not explicitly apply to site-specific rezones

It is unclear whether a site-specific rezone is statutorily required to comply

with the GMA. The GMA does not directly regulate site-specific land use

activities. Viking Props., Inc. v. Holm, 155 Wn.2d 112, 126, 31, 118 P.3d 322

(2005). The 13 planning goals, which include reducing sprawl, apply by their terms

only to comprehensive plans and development regulations. See id. (noting that the

GMA creates a "framework" that guides local jurisdictions in the development of

comprehensive plans and development regulations); RCW 36.70A.020.

Thus, the GMA indirectly regulates local land use decisions through

comprehensive plans and development regulations, both of which must comply with

the GMA. See former RCW 36.70A.130(1)(a), (b) (2002). Comprehensive plans

serve as "'guide[s]'" or "'blueprint[s]'" to be used in making land use decisions.

Citizens for Mount Vernon v. City of Mount Vernon, 133 Wn.2d 861, 873, 947 P.2d

1208 (1997). Thus, a proposed land use decision must only generally conform,

rather than strictly conform, to the comprehensive plan. Id. A comprehensive plan

does not directly regulate site-specific land use decisions. Id.; Viking Props., 155

Wn.2d at 126, 31. Instead, local development regulations, including zoning

regulations, directly constrain individual land use decisions. Viking Props., 155

Wn.2d at 126, 31. Such regulations must be consistent with the comprehensive

plan and be sufficient in scope to carry out the goals set forth in the comprehensive

plan. RCW 36.70A.040(3)(d), (4)(d); WAC 365-195-800(1).

A site-specific rezone authorized by a comprehensive plan is treated as a

project permit subject to the provisions of chapter 36.70B RCW. RCW

36.70B.020(4). In reviewing a proposed land use project, a local government must

determine whether the proposed project is consistent "with applicable development

regulation, or in the absence of applicable regulations the adopted comprehensive

plan." RCW 36.70B.030(1). While standards are explicitly provided for making

the determination of whether a proposed project is consistent with the development

regulations, or, in their absence, the comprehensive plan, there is no explicit

requirement that the project permit be consistent with the GMA. See RCW

36.70B.030, .040. Instead, the land use planning choices reflected in the

comprehensive plan and regulations "serve as the foundation for project review."

RCW 36.70B.030(1).

This presents a potential problem. Assuming that a project permit must be

consistent with development regulations or a comprehensive plan, there is the

potential that the actual regulations or plan are not consistent with the GMA. As

noted above, a comprehensive plan or development regulation's compliance with

the GMA must be challenged within 60 days after publication. RCW

36.70A.290(2). Once adopted, comprehensive plans and development regulations

are presumed valid. RCW 36.70A.320(1). Thus, if a project permit is consistent

with a development regulation that was not initially challenged, there is the potential

that both the permit and the regulation are inconsistent with the GMA. While this

is problematic, the GMA does not explicitly apply to such project permits and the

GMA is not to be liberally construed. Skagit Surveyors, 135 Wn.2d at 565. This

court's "role is to interpret the statute as enacted by the Legislature . . . we will not

rewrite the [GMA]." Id. at 567. Because the GMA does not provide for it, we hold

that a site-specific rezone cannot be challenged for compliance with the GMA.

C. Woods implicitly challenges the compliance of the comprehensive plan and
development regulations with the GMA

The KCC explicitly requires that a site-specific rezone application be

compatible with the comprehensive plan. Former KCC 17.98.020(E) (1996). If a

zoning code explicitly requires that all proposed uses comply with a comprehensive

plan, then the proposed use must comply with both the zoning code and the

comprehensive plan. Cingular Wireless, LLC v. Thurston County, 131 Wn. App.

756, 770, 129 P.3d 300 (2006); see Weyerhaeuser v. Pierce County, 124 Wn.2d 26,

43, 873 P.2d 498 (1994). If a project permit is consistent with a comprehensive

plan, then the only way that it could violate the GMA is if the plan itself violated the

GMA. Thus, in this case, Woods' challenge to the rezone's compliance with the

GMA is a disguised challenge to the adequacy of the comprehensive plan itself.

This is a matter within the exclusive jurisdiction of a GMHB, not a superior court.

This reasoning is consistent with a Division One of the Court of Appeals case

that determined that a superior court lacks subject matter jurisdiction to decide

whether a project permit complied with the GMA. Somers v. Snohomish County,

105 Wn. App. 937, 21 P.3d 1165 (2001).

In Somers, a hearing examiner approved a developer's application for a new

subdivision in Snohomish County and neighboring landowners filed a LUPA

petition challenging the hearing examiner's decision, claiming the development

constituted "urban growth" in violation of the GMA. 105 Wn. App. at 939. The

hearing examiner found that, although the proposed development was outside the

county's IUGA and the ordinance establishing the IUGA did not adequately define

"urban growth," the development was valid because it complied with the county's

zoning ordinance. Id. at 940. After determining it had subject matter jurisdiction to

decide the matter, the superior court reversed the hearing examiner, holding that the

subdivision constituted urban growth outside the IUGA in violation of the GMA.

Id. at 941. The Court of Appeals reversed, holding that although the Somerses

claimed to challenge approval of the subdivision, their real claim was that the

zoning ordinance violated the GMA by allowing urban growth outside the county's

IUGA, a claim the superior court did not have subject matter jurisdiction to decide.

Id. at 943-44. CESS argues that, as in Somers, the superior court in this case did

not have subject matter jurisdiction to decide that the R-3 zone allows urban growth

outside the county's UGA in violation of the GMA. We agree.

Wenatchee Sportsmen and Somers demonstrate the hierarchical, rather than

parallel, relationship between the GMA and LUPA. Comprehensive plans and

development regulations provide the general structure for a local jurisdiction's site-

specific decisions. The comprehensive plan and development regulations are

presumed to comply with the GMA. The comprehensive plan and development

regulations may be challenged for violations of the GMA before a GMHB within

60 days of publication. Subsequent site-specific land use decisions by a local

jurisdiction must be generally consistent with the comprehensive plan and

development regulations. An adjacent property owner must challenge a local

jurisdiction's site-specific decisions by filing a LUPA petition in superior court. But

a challenge to a site-specific land use decision can be only for violations of the

comprehensive plan and/or development regulations, but not violations of the GMA.

We affirm the Court of Appeals.

D. Woods' remaining LUPA issues are properly before us and BOCC properly
approved CESS's site-specific rezone application

Because the superior court concluded that CESS's application for a site-

specific rezone did not comply with the GMA, it declined to reach Woods'

remaining LUPA issues. Although the parties put forward different reasons, both

argue that this court should not reach those issues on appeal. But because we affirm

the Court of Appeals holding that the superior court does not have subject matter

jurisdiction to decide whether a site-specific rezone complies with the GMA, and

because we stand in the superior court's position on review of an administrative

decision, Woods' remaining LUPA issues related to BOCC's decision to approve

the site-specific rezone application are properly before us. See Wenatchee

Sportsmen, 141 Wn.2d at 176.

An appellate court reviews an administrative decision under the substantial

evidence standard and conclusions of law de novo. Id. "Under the substantial

evidence standard, there must be a sufficient quantum of evidence in the record to

persuade a reasonable person that the declared premise is true." Id.

Under LUPA, the party seeking relief has the burden of establishing that one

of the following six standards has been met:

(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(1). "Issues raised under subsection (c) challenge the sufficiency

of the evidence." Benchmark Land Co. v. City of Battle Ground, 146 Wn.2d 685,

694, 49 P.3d 860 (2002). In a challenge for sufficiency of the evidence, "'[w]e

view inferences in a light most favorable to the party that prevailed in the highest

forum exercising factfinding authority.'" Id. (quoting Schofield v. Spokane County,

96 Wn. App. 581, 588, 980 P.2d 277 (1999)). Therefore, we view the record and

inferences in the light most favorable to CESS because they prevailed before

BOCC.

Three basic rules apply to rezone applications: (1) they are not presumed

valid, (2) the proponent of a rezone must demonstrate that there has been a change

of circumstances since the original zoning, and (3) the rezone must have a

substantial relationship to the public health, safety, morals, or general welfare.

Citizens for Mount Vernon, 133 Wn.2d at 875. Kittitas County imposes seven

additional criteria for approval of a site-specific rezone application. Former KCC

17.98.020(E) (1996). The applicant must show that:

1. The proposed amendment is compatible with the
comprehensive plan; and

2. The proposed amendment bears a substantial relation to
the public health, safety or welfare; and

3. The proposed amendment has merit and value for Kittitas
County or a sub-area of the county; and

4. The proposed amendment is appropriate because of
changed circumstances or because of a need for additional property in
the proposed zone or because the proposed zone is appropriate for
reasonable development of the subject property; and

5. The subject property is suitable for development in
general conformance with zoning standards for the proposed zone; and

6. The proposed amendment will not be materially
detrimental to the use of properties in the immediate vicinity of the
subject property; and

7. The proposed changes in use of the subject property shall
not adversely impact irrigation water deliveries to other properties.

Id. (emphasis added).

In approving CESS's rezone application, BOCC found the requested zone

change met all the criteria in former KCC 17.98.020(E), that is (1) the rezone was

"consistent with the rural land use designation" of the county's comprehensive plan

and the rural designation "has consistently been interpreted to be consistent with the

Rural-3 zoning designation," (2) the rezone had a "substantial relationship to the
public health, safety or welfare,"9 (3) the rezone had merit and value for the county

because the potential for new tax lots will increase the county's tax base, (4) the

proposed rezone was appropriate for reasonable development of the subject

property given the surrounding zoning and development adjacent to the project area,

which allow three acre densities,10 (5) the property was suitable for development in

conformance with R-3 zoning standards, (6) the rezone would not be materially

detrimental to the use of properties in the immediate vicinity of the subject property

because it limits the amount of permitted and conditional uses, and (7) proposed

changes in the use of the property would not adversely impact irrigation water

deliveries to other properties. CP at 174; Ex. 28.

Aside from Woods' GMA challenge discussed supra at pages 8-15, Woods'

LUPA petition and supporting briefs challenged only findings related to criteria (1),

(2), (4), and (5).

(1) The rezone is consistent with the rural land use designation in the
county's comprehensive plan and the rural land use designation is
consistent with the R-3 zone

Regarding inconsistency of the rezone with the county's comprehensive plan,

Woods raised two main arguments in her briefs to the superior court.11 First, she

argued the county implemented its development regulations using preexisting zoning

ordinances and individual rezones rather than implementing development regulations

after adopting its comprehensive plan. Second, she argued the comprehensive plan

does not provide for the R-3 zone classification in rural areas and the R-3 zone

cannot qualify as rural based on rulings of the three GMHBs, which require five

acre densities in rural areas.

CESS responded that the plan allows for the continued use of preexisting

rural densities. It further contends that, although the plan acknowledges a

generalization that a five acre density is associated with rural character, the

topography of the county allows for a variety of lot sizes. CESS acknowledges its

property is located in an area designated as rural but asserts it merely sought to

rezone its property from one rural zone to another.

We first address Woods' claim that the rezone is invalid because the county

continued to use preexisting zones and applied those zones to individual properties

in rezones rather than implementing county-wide development regulations after

adopting its comprehensive plan.12

Woods' premise seems to be that if a local jurisdiction does not adopt its

development regulations after or in unison with its comprehensive plan, the

development regulations do not implement the comprehensive plan. She implies

there has been no prior opportunity to challenge whether the R-3 zone complies

with the GMA. We sympathize with Woods' frustration over adjacent property

owners' inability to challenge a local jurisdiction's actions, but the GMA does not

provide her with the relief she seeks. We have held that the GMA does not

authorize the GMHBs to review a county's preexisting development regulations for

compliance with the GMA and invalidate any that do not comply. Skagit Surveyors,

135 Wn.2d at 567. Therefore, adjacent property owners have few alternatives to

challenge a local jurisdiction's incorporation of a preexisting development

regulation into its comprehensive plan under the GMA once the plan is adopted. Id.

Further, even if the GMHB were to determine that the comprehensive plan or

development regulation is invalid, that determination is prospective in effect and

would not extinguish rights that vested prior to the GMHB's order.13 RCW

36.70A.302(2). Therefore, CESS's rezone has vested and any future invalidation of

the R-3 zone or the county's comprehensive plan would have no effect on it.

Because we conclude the county validly adopted the R-3 zone into its

comprehensive plan, the only issue before us is whether the county's comprehensive

plan permits the R-3 zone to be used in rural areas. Woods argues it does not.

The county's comprehensive plan states that rural densities range from 3 to

20 acres and expressly refers to the creation of the R-3 zone in its discussion of

rural lands. Former Kittitas County Comprehensive Plan (2001) at 178. The rural

section of the comprehensive plan contains a reference to chapter two, in which the

R-3 zone is included on a list of zones approved for use in the county. Id. The

comprehensive plan discusses the need for rural diversity at length, stating:

The aforementioned range of rural densities and uses has created and
contributed to a successful landscape which contributes to an attractive
rural lifestyle. The exception to this landscape can be seen in areas
where individuals have had to acquire larger lots than desired in order
to obtain a building site. This has created the effect of "rural sprawl."
This current mix of rural uses and densities has not increased the cost
to taxpayers for road and utility improvements, police and fire
protection, or the education of school populations beyond the means of
the local people to finance such infrastructure. The mix of rural uses
and densities have [sic] allowed rural growth to be accommodated in a
variety of areas where it is appropriate. This has been compatible with
both resource activities and urbanization.

Id.

Although, as Woods notes and CESS acknowledges, the county's plan

indicates that five acre minimum lot sizes are generally viewed as preserving the

rural nature of the area, the plan also expresses concern that a focus on lot size

alone could lead to rural sprawl. Id. at 176. It states:

There exists a generalization that 5 acre minimum lot sizes might
preserve "rural character.". . . However, over the past fifteen to twenty
years Kittitas County has experienced "rural sprawl" through the
adoption of 20 acre minimum lot sizes, which has caused the
conversion of farm land into weed patches. Small lot zoning with
conservation easements for agriculture, timber, or open space may be
preferable to the wasteful "sprawl" developments of large lot zoning
and could be more conducive to retaining rural character. . . . In
Kittitas County there are rural settlements of all sizes and descriptions,
some resembling small towns and others simple "crossroads cluster."
While attaining higher densities, these areas remain rural in character.

Id.

Woods conspicuously does not point to any language that restricts the use of

the R-3 zone to urban areas. The most she can demonstrate is that the plan

acknowledges a common perception that five acres is generally viewed as rural.

Other language in the plan, though, plainly demonstrates that the county explicitly

rejected the bright-line rule that a five acre density is required for rural land and

arrived at a reasonable decision based on the county's specific needs.

Because the county's comprehensive plan expressly recognizes the R-3 zone

as a rural zone, BOCC's approval of a rezone of rural land from F&R to R-3 did not

violate the county's comprehensive plan and was not an erroneous interpretation of

the law or a clearly erroneous application of the law to the facts.

(2) The rezone had a substantial relationship to the public health, safety, or
welfare

Woods claimed next that the rezone did not have a substantial relationship to

public health, safety, or welfare because she claimed the record conclusively

showed there was a lack of available water on CESS's property.

The record indicates that the Department of Ecology (DOE) was concerned

about the potential that there would be inadequate water for development on

CESS's property, but potential inadequacy is a far cry from conclusive evidence.

The record also shows the county took note of DOE's concerns and established

mitigation measures to ensure that if and when a project development application

was submitted, DOE's concerns would be addressed before any development

occurred.

Moreover, BOCC based its decision that the rezone had a substantial

relationship to the public health, safety, or welfare on the fact that F&R zone

permits more intense conditional uses than those permitted in the R-3 zone. It found

that while such uses might be appropriate in areas where lots are predominately 20

acres in size, much of the area surrounding CESS's property is already zoned R-3 or

it is zoned F&R but contains many 3 acre lots.

We conclude that there is substantial evidence in the record to support

BOCC's decision that the rezone to R-3 would have a substantial relationship to the

public health, safety, or welfare, and BOCC's decision was not an erroneous

interpretation of the law or a clearly erroneous application of the law to the facts.

(4) The proposed rezone was appropriate for reasonable development of
the subject property given three acre zoning in the surrounding area

Woods also claimed the rezone was not valid because there had been no

change in circumstances. She argued there was no change in circumstances because

there was no need for additional residential property in the area. CESS argued that,

although under LUPA a rezone proponent must generally show that there has been a

change of circumstances since the original zoning, former KCC 17.98.020(E)(4)

alternatively allows the proponent to show the rezone is appropriate for reasonable

development of the subject property.

CESS's rezone application stated that the purpose of the rezone was to permit

future residential development characteristic of the surrounding area and provide a

transition zone between the F&R zone and the outlying commercial forest zone. It

also stated that the property is former timberland that has since been subdivided into

parcels ranging from 8 to 84 acres and is no longer appropriate for commercial

forestry. Woods failed to explain why a rezone of the property to R-3 is

inappropriate for reasonable development of property so described. She stated that

there is already capacity for 7,483 dwelling units on existing R-3 zoned districts and

there is no need for 70 additional residential lots. However, she did not explain why

current capacity elsewhere in the county would preclude creation of additional

capacity on, or render the rezone inappropriate for, reasonable development of a

particular property. Moreover, in reaching its decision, BOCC reasoned that

because adjacent properties also allowed a three acre density, it was not

inappropriate to approve the same density for CESS's property.

We conclude there is substantial evidence in the record to support BOCC's

decision that because the surrounding area is already a mix of F&R and R-3, a

rezone is appropriate for reasonable development, and BOCC's decision was not an

erroneous interpretation of the law or a clearly erroneous application of the law to

the facts.

(5) The rezone was suitable for development in conformance with R-3
zoning standards

Finally, Woods claimed the record established conclusively that, because

there is inadequate water to support increased density and the topography of the

area precluded adequate traffic capacity, the rezone was not suitable for

development. Although the Kittitas County Department of Public Works and DOE

expressed concerns regarding the impact of the rezone on traffic and water

availability, BOCC reasoned that a determination that the property was not suitable

for development is pertinent only where an application is submitted to develop the

property. The county had established mitigation measures to ensure that if and

when a project development application was submitted, those issues would be taken

into account.

We conclude there is substantial evidence in the record to support BOCC's

decision that the property is suitable for development. BOCC's decision was

supported by substantial evidence and was not an erroneous interpretation of the law

or a clearly erroneous application of the law to the facts.

* * *

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