FILED 


APRIL 9, 2015 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


SPOKANE COUNTY, a political ) 


subdivision ofthe State of Washington, ) 


) 


Respondent, ) 


) 


v. 	 ) 

) 

EASTERN WASHINGTON GROWTH ) 

MANAGEMENT HEARINGS BOARD, a ) 

statutory entity, ) 

) 


Other, ) 


) 


FIVE MILE PRARIE NEIGHBORHOOD ) 


ASSOCIATION, and FUTUREWISE, a ) 


Washington Non-Profit Organization, ) 


) 

Appellants, ) 

) 

HARLEY C. DOUGLAS, Inc., ) 


) 


Respondent. ) 


No. 31941-5-III 

UNPUBLISHED OPINION 

FEARING, J. - We address once again the compliance of Spokane County with 

Washington's intractable Growth Management Act (GMA), chapter 36.70A RCW, this 
No. 31941-5-111 


Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 


time in the context of a comprehensive plan amendment that rezoned a parcel of land. 

The reviewing administrative agency, the Growth Management Hearings Board 

(GMHB), invalidated the amendment, and the superior court reversed. We reverse in part 

and affirm in part the decisions of the superior court and remand the case to the GMHB 

for further proceedings. 

Our previous decision in Spokane County v. Eastern Washington Growth 

Management Hearings Board, 173 Wn. App. 310, 293 P.3d 1248 (2013) (Spokane 

County 1), provides answers to some ofthe issues raised in this appeal, but this appeal 

asks many other questions. Like the dispute in Spokane County I, this dispute is fact 

specific and demands a thorough review ofthe Spokane County comprehensive plan and 

a zoning ordinance, an intimate evaluation ofthe record before the Spokane County 

Board ofCommissioners and the GMHB, and an analysis ofthe GMA. We address both 

the merits ofthe challenge to the rezone and procedural issues under the GMA. 

FACTS 

Neighbors to 22.3 acres of undeveloped land and environmental groups 

challenged, before the GMHB, Spokane County's Resolution 11-1191. We refer to the 

challengers collectively as the "Neighborhood Association." The resolution adopted 

many changes to Spokane County's comprehensive plan. This appeal solely addresses a 

narrow portion ofthe resolution, the portion that adopted amendment ll-CPA-05 to the 

county's comprehensive plan and rezoned the 22.3 acres along N. Waikiki Road from 

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Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Ed. 

low-density residential to medium-density residential. The amendment allows the 

placement of multifamily complexes on the land, whereas the former zoning allowed 

duplexes as the most intense use on the tract. The Neighborhood Association contends 

the rezone, in part, failed to recognize the lack of access and lack of available utilities to 

the site and thereby violated Spokane County's comprehensive plan, its zoning code, and 

theGMA. 

Washington's GMA requires a county to adopt and maintain comprehensive plans 

and development regulations which, among other goals, provide for the public facilities 

and services needed to support new development and reasonably zone land within the 

county. The GMA demands that a county yearly update the comprehensive plan. To 

help understand the dispute on appeal, we sketch critical fragments of the Spokane 

County comprehensive plan. The comprehensive plan conveniently divides itself into 

chapters by subject matter, with the first chapter being an introduction. The introductory 

chapter explores the nature of a comprehensive plan and outlines the demands of I 

Washington's GMA. 

Spokane County's comprehensive plan encompasses a set ofgoals, policies, maps, I 

illustrations, and implementation strategies that outline acceptable methods of physical, I

social, and economic growth in the county. A central theme of the plan is the promotion 

of economic development that occurs in harmony with environmental protection and 

preservation of natural resources. The plan "establishes a pattern of land uses to shape 

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Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 

the future in desirable ways." Admin. Record (AR) at 835. Map designations 

incorporate residential, commercial, industrial and mixed-use areas. Identifying and 

defining these land use categories ensures compatibility among uses, protection of 

property values, and efficient provision of infrastructure and services. 

Chapter 2 of Spokane County's comprehensive plan addresses "'urban land use" 

and its pages start with the letters "UL." AR at 843-44. The urban land use chapter 

provides policy guidance for the development of Spokane County's unincorporated urban 

areas. The chapter's policies strive to improve quality of life, provide opportunities for 

innovative approaches to land use, and protect the county's community character. The 

policies work in tandem with the comprehensive plan map, which illustrates the location 

ofvarious land use categories. 

Chapter 2 of the comprehensive plan outlines plan goals, with each goal separately 

numbered beginning with UL.l. One goal is to identify and designate land for residential 

use into the three categories of low-, medium-, and high-density areas. Policy UL. 7 .1. 

Low-density residential includes a density range of 1 to and including 6 dwelling units 

per acre; medium-density residential includes a range of greater than 6 to and including 

15 dwelling units per acre; and high-density residential is greater than 15 dwelling units 

per acre. This appeal entails Spokane County's change ofa tract of land from lowdensity residential to medium-density residential under the county's comprehensive plan f 

and zoning ordinance. 

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Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 

A number of goals in the comprehensive plan's Chapter 2 address the location of 

multifamily housing. The Neighborhood Association claims Spokane County's rezone 

violated some of these goals, in particular: 

UL.2.16 Encourage the location of medium and high density 

residential categories near commercial areas and public open spaces and on 

sites with good access to major arterials. 

UL.2.17 Site multifamily homes throughout the Urban Growth 

Area as follows: 

a) Integrated into or next to neighborhood, community or urban 

activity centers. 

b) Integrated into small, scattered parcels throughout existing 

residential areas. 

New multi-family homes should be built to the scale and design of 

the community or neighborhood, while contributing to an area-wide density 

that supports transit and allows for a range of housing choices. 

AR at 848. A third urban land use policy goal, UL.2.20 reads: 

UL.2.20 Encourage new developments, including multifamily 

projects, to be arranged in a pattern of connecting streets and blocks to 

allow people to get around easily by foot, bicycle, bus or car. Cul-de-sacs 

or other closed street systems may be appropriate under certain 

circumstances including, but not limited to, topography and other physical 

limitations which make connecting systems impractical. 

ARat 849 

Chapter 7 of the Spokane County comprehensive plan addresses capital facilities 

and utilities. The chapter's pages begin with CF -1 and its goals begin with CF.1. 

According to the plan, public facilities and services are often taken for granted, but, 

without coordination and conscientious planning for future growth, facilities and services 

may be interrupted or inadequate. One fundamental tenet of the GMA is for local 

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governments to ensure the availability of adequate public facilities and services to serve 

existing and future developments. Existing facilities and services must be able to support 

new development or provisions for improvements must be made where deficiencies exist. 

Capital facilities include roads, water, sewer, solid waste, parks, jails, police protection, 

and fire protection. Policy goal CF.3.1 reads: 

Development shall be approved only after it is determined that 

public facilities and services will have the capacity to serve the 

development without decreasing levels of service below adopted standards. 

AR at 276. The capacity to serve is termed "concurrency," which "describes the situation 

in which adequate facilities are available when the impacts of development occur, or 

within a specified time thereafter." WAC 365-196-840(b). 

The Neighborhood Association also contends Spokane County violated one of its 

zoning ordinances when rezoning the subject land. Spokane County Zoning Code 

(SCZC) section 14.402.040 provides: 

The County may amend the Zoning Code when one of the following 

is found to apply. 

1. The amendment is consistent with or implements the 


Comprehensive Plan and is not detrimental to the public welfare. 


2. A change in economic, technological, or land use conditions has 

occurred to warrant modification ofthe Zoning Code. 

3. An amendment is necessary to correct an error in the Zoning 

Code. 

4. An amendment is necessary to clarify the meaning or intent of the 

Zoning Code. 

5. An amendment is necessary to provide for a use(s) that was not 

previously addressed by the Zoning Code. 

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6. An amendment is deemed necessary by the Commission and/or 

Board as being in the public interest. 

AR at 1027. 

Spokane County ordinances addressing concurrency also apply to our dispute. 

Spokane County Code section 13.650.102 reads: 

13.650.102 - Concurrency facilities and services. 

(I) The following facilities and services must be evaluated for 

concurrency: 

(a) Transportation; 

(b) Public water; 

(c) Public sewer; 

(d) Fire protection; 

(e) Police protection; 

(f) Parks and recreation; 

(g) Libraries; 

(h) Solid waste disposal; 

(i) Schools. 

(2) Direct Concurrency. 

Transportation, public water and public sewer shall be considered 

direct concurrency services. Concurrency requirements for public water 

and public sewer service are detailed in Section 13.650.112. Transportation 

facilities serving a development must be constructed, or a financial 

guarantee for required improvements must be in place prior to occupancy. 

Applicable permit/project applications shall required transportation 

concurrency review, described in Section 13.650.104. A Concurrency 

Certificate shall be issued to development proposals that pass the 

transportation concurrency review. 

(3) Indirect Concurrency. 

Fire protection, police protection, parks and recreation, libraries, 

solid waste disposal and schools shall be considered indirect concurrency 

services. Spokane County shall demonstrate the adequacy of indirect 

concurrency services through the Capital Facilities Plan (CFP). The CFP 

will be updated annually, at which time all indirect concurrency services 

will be evaluated for adequacy. The evaluation will include an analysis of 

population, level of service and land use trends in order to anticipate 

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Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 


demand for services and determine needed improvements. If any indirect 

concurrency services are found to be inadequate, the County shall adjust the 

land use element to lessen the demand for services, include a project in the 

CFP to address the deficiency, or adjust the Level of Service. To 

implement any ofthese methods an amendment to the Comprehensive Plan 

is required. 

We tum now to the land in question. Harley C. Douglass, Inc. (Douglass), owns 

22.3 acres of undeveloped land, the property at issue in this appeal. The property lies 

within Spokane County's Urban Growth Area (UGA). An urban growth area is area 

"within which urban growth shall be encouraged, and outside of which growth can occur 

only if it is not urban in nature." RCW 36. 70A.Il O. Existing urban utilities service the 

Douglass property. Spokane County Utilities provides sewer service, and Whitworth 

Water District supplies water service. 

Before adoption of amendment II-CPA-05, the Douglass property was zoned for 

low-density residential. All adjacent lands are also zoned for low-density residential. 

The county comprehensive plan identifies the nearest medium and high density 

residential areas as being a mile southeast ofthe site. The Douglass land is .9 miles 

from the nearest commercial area. The land is not near any public open space. 

According to the Regional Land Quantity Analysis for Spokane County Summary 

Report, redesignation ofthe Douglass parcel to medium density is unnecessary to meet 

projected growth in Spokane County. 

The following map shows the property's irregular contour, with the property lying 

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Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 


within the bold border: 

AR at 228. The property abuts Waikiki Road to the east and North Five Mile Road to 

the south. According to the hearing examiner's findings of fact entered in support of a 

2007 plat application, Spokane County's Arterial Road Plan designates Waikiki Road as 

an "Urban Principal Arterial," and North Five Mile Road as an "Urban Collector 

Arterial." AR at 511. Nevertheless, a Spokane County Building and Planning staff 

report and a letter from Douglass to the Spokane County Board of Commissioners 

identified Waikiki Road as an urban minor arterial. 

Douglass' site generally slopes down from the northwest to the southeast, away 

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 Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Ed. 


i 

l 

from North Five Mile Road and toward Waikiki Road. Various utility easements extend I 

I 

! 

I through the site. Within the easements lie a high-voltage overhead transmission line, 

I associated gravel access roads, and a high-pressure underground gas pipeline. Spokane 

County maintains that, because of the utility easements and the hilly and craggy 

I topography of the land, Douglass may be able to develop only a small portion of its 

parcel, that portion being on the southern edge and the middle of the acreage. 

Douglas previously sought to develop the property into 26 single-family homes 

and 12 duplexes. In 2007, a Spokane County hearing examiner approved a preliminary 

plat for the 38 structures in a subdivision called Redstone. The plat is pictured here: 

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Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Ed. 

AR at 366. The northeast comer ofthe property would remain undeveloped under the 

plan. 

During the Redstone preliminary plat public hearing, neighbors raised concerns 

about the subdivision's singular access to Five Mile Road and concerns about the safety 

along the steep road because of an overload oftraffic and lack of pedestrian 

accommodations. In obtaining approval for the Redstone subdivision, Douglass claimed 

that extension ofa paved road in the preliminary plat for general vehicular access to 

Waikiki Road, meeting County standards, was not economically feasible. The Spokane 

County Engineering Department indicated that a road extension from the proposed 

subdivision to Waikiki Road would likely be difficult, due to the topography ofthe site. 

Nevertheless, Spokane County approved the Redstone plat conditioned, at Spokane 

County Fire District 9's request, on the construction of a second access road for fire 

vehicles to Waikiki Road. 

Douglass thereafter changed plans for the site. On March 31, 2011, Douglass 

applied to amend Spokane County's comprehensive plan and rezone its property from 

low-density to medium-density residential. Douglass avowed that, because of changing 

economic conditions, a medium-density residential development best fit the location. 

Douglass hoped to build eight to ten apartment buildings, inclusive of 200 units, with 

parking lots surrounding the buildings. Douglass, however, has not disclosed a specific 

development plan or site plan or applied for a project permit. Spokane County labeled 

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No. 31941-5-111 


Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 


Douglass' application to amend the county's comprehensive plan and to rezone the 

property "Amendment II-CPA-05" to its comprehensive plan. 

Spokane County proceeded with public input and review by its Department of 

Building and Planning of Douglass' proposed zoning change. The department prepared a 

staff report, which read, in part: 

PUBLIC COMMENT 

One letter has been received which stated the proposal would lead to 

increased traffic on Five Mile Road, lower already low water pressure, 

increase stormwater runoff and lower property values. 

There are a number of duplex uses near this site, but no multi-family 

uses. Waikiki Road is designated as an Urban Minor Arterial by Spokane 

County's Arterial Road Plan, has sidewalks on both sides and has bus 

service from Spokane Transit Authority. Five Mile Road is not listed on 

the Arterial Road Plan, is steep and windy and does not have sidewalks. 

The Medium Density Residential designation allows multi-family 

residential development, among other uses. There are no multi-family 

developments adjacent to this site. Their inclusion would add variety to the 

area's housing mix. 

The Mead School District serves this site. They were provided with 

an agency circulation regarding this proposal for review and coordination 

purposes. 

Summary: 

Implementation of the Medium Density Residential designation at 

this site is consistent with the goals and objectives of the County's 

Comprehensive Plan. At the time of a specific development proposal, the 

site will be subject to County transportation concurrency regulations, as 

well as, other mitigation measures codified in County development codes. 

AR at 220-26. 

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After its review of Douglass' application, the Spokane County Engineer wrote the 

Department of Building and Planning with its conditions of approval: 

This proposed comprehensive plan amendment is not being 

requested for a specific development proposal or site plan at this time. At 

such time a site plan is submitted for review, the applicant shall submit 

detailed traffic information for review by the County Engineer to determine 

what traffic impacts, if any, that the development would have on 

surrounding infrastructure. The applicant is advised that mitigation may be 

required for off-site improvements. 

The County Engineer will review this project for transportation 

concurrency requirements at the time ofreview of a land Use Application, 

when the project is defined with a specific use. 

AR at 235. 

The Douglass parcel lies within the Mead School District, who received notice of 

the proposed zone change. The Mead School District tersely wrote to the Department of 

Building and Planning: "The Mead School District believes that this request for a change 

in land use designation, if approved, could have an impact on schools. The District will 

respond with further remarks when the SEP A [State Environmental Policy Act, chapter 

43.21C RCW] checklist is circulated for comment." AR at 343. 

Futurewise, the Five Mile Neighborhood Association, and neighbors to the 

property voiced opposition to Douglass' application to rezone the property for mediumdensity residential. Neighbor A. J. Prudente wrote: 

The new Prairie View Elementary school was completed and opened 

for the 2007-2008 school year. Upon opening during registration there 

were many potential students that had to be turned away due to over 

population. Prairie View has been overpopulated since its opening and we 

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just recently received 4 portable classrooms for the start of the 2010-2011 

school year. Even with the new portables the school is still overpopulated. 

Zoning Five Mile Prairie for apartment buildings will only make this 

situation worse. Please keep Five Mile Prairie zoned only for single family 

housing. 

AR at 91. 

Kathy Miotke, on behalf ofthe Five Mile Neighborhood Association, wrote: 

The applicant states that this parcel has access to public transit and it 

does not. The only access and egress this parcel currently has is North Five 

Mile Road which has no transit service. And there is no safe way to walk 

along North Five Mile Road to Waikiki to find a bus stop. The applicant 

has stated correctly that the current access is North Five Mile Road, then 

states that he is "proposing" Waikiki as an access point. However, during 

the appeal ofthe applicant's Redstone Project, the neighbors begged for an 

access/egress offofWaikiki instead of North Five Mile Road and we were 

told that it was impossible. That makes it hard for us to believe this 

"proposed" change would occur. 

The applicant states that this is not a wild life habitat. I agree it isn't 

now but it was before this land was clear cut. In fact, one ofthe FMPNA 

members took video from his phone of approximately 40 herd of deer 

standing in the middle ofthe property the evening after it was clear cut. 

What we have here is a geographical hazardous area with steep 

slopes and erodible soils located within a CARA with high susceptibility ­

stormwater problems abound for residents. Please read carefully the letter 

submitted by Colleen Little ofthe Spokane County Stormwater Department 

dated May 6, 2006. You should have seen the drainage ways she described 

in her 2006 letter in May ofthis year, you could grow cranberries in the 

bog. These drainage ways are extremely important as they connect to the 

Little Spokane Natural area and watershed. 

I can tell you that Prairie View Elementary is at capacity even with 

four portable classrooms. And because ofthe unsafe roads surrounding the 

school, including North Five Mile Road, parents are asked to keep their 

children from walking or riding their bikes. In fact, taxpayers are paying 

approximately $200,000 a year for bus service even within a mile ofthe 

school. 

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The Staff report does not acknowledge that this is a geographical 

hazardous area which it clearly is. The pictures that are shown with this 

submission do not give you the full benefit of the topography with the steep 

slopes, the existing neighborhood and the twists and turns of our roadway. 

1don't believe these pictures were provided by staff as 1don't believe Mr. 

Brock has seen the site. 1 wish every one of you would take a ride on the 

road and see the parcel and surrounding for yourself. 

To the east, to the west, to the north and to the south, all low density 

residential homes. 

This is not a center or corridor. This is not sited next to a 

neighborhood urban activity center. This does not connect to a commercial 

center. This does not connect to a public open space. It does not have good 

access to a major arterial. 

This doesn't even meet the definition of urban infill housing! Infill 

within an urban area is not 22.2 acres ofland and urban infill respects the 

current character ofthe neighborhood which this zone change does not. 

There is no market analysis, no feasibility study, no environmental 

impact study. 

What is this? It is Spot Zoning which is not allowed by the Spokane 

Comprehensive Plan or GMA. 

This does not fit and 1urge you to recommend denial of this 

comprehensive plan amendment. 

AR at 237-38. 

Brion and Rene Reighard, who live on Five Mile Road, believe a multifamily 

development will lower the value oftheir home. They wrote: 

The only person this development will help is the developer. There 

are plenty ofnew and used homes in the Five Mile Prairie Area that are 

currently unoccupied. We would prefer that Spokane County try and curb 

the urban sprawl that this development represents. The wildlife habitat that 

has been destroyed by the clear cut a few years ago is very noticeable, 

adding all these buildings will completely destroy it. 

AR at 236. 

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Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 


Spokane County's Planning Commission, in a four-two vote, recommended 

denying amendment II-CPA-05. The Planning Commission found the amendment 

inconsistent with many of Spokane County's planning policies that relate to traffic: 

The Planning Commission finds this proposal to be inconsistent with 

the following Comprehensive Plan Goals and Policies: Goal: T2, Policies: 

T.2.2, 3 & 7. Significant residential development has occurred on and near 

the Five Mile Prairie and transportation improvements have not kept up. 

This site is adjacent to one of the Prairie's access points (North Five Mile 

Rd.). It does not appear that the transportation improvements in the area 

are consistent with the Land Use Plan. 

The Planning Commission also finds this proposal inconsistent with 

Comprehensive Plan Goal: T.3.e, Policy: T.3e.l which speaks to pedestrian 

and bicycle access. This proposal fronts on North Five Mile Rd. which is 

steep, windy and has no accommodations for pedestrians or bicyclists. The 

Spokane County Engineering Department says there are no plans for 

improvements and the applicant, who says they plan to use this road as one 

of their access points, has not indicated they plan to make any 

improvements. 

The amendment does not meet the criteria for a zone reclassification 

as provided by Sections 14.402.040 of the Zoning Code and the Planning 

Commission felt the proposal was not in the public's interest. 

The Commission, in general, thought that the traffic issues in the 

area needed to be addressed comprehensively and that the site is properly 

designated as Low Density Residential. 

Public Comments: Thirty-seven (37) public comments were received 

related to this proposal. Four (submitted by the applicant's agent) were for 

the amendment and 24 were against. 

AR at 770. 

Douglass appealed to the Spokane County Board of Commissioners. In tum, 

Douglass wrote mUltiple letters to the Board of Commissioners. On November 21, 2011, 

relying on a 2007 traffic impact analysis performed for the Redstone plat, Douglass 

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Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Ed. 


wrote: 

As the board is undoubtedly aware, conditions in the single family 

housing market have deteriorated significantly since 2007. For the 

foreseeable future, development ofthe Redstone plat is no longer feasible 

due to a surplus of single family residential lots and rising construction 

costs. In addition, the constraints on the site due to steep slopes and utility 

easements make the useable portions more suitable for multi-family 

development. Consequently, in March of2011, Douglass submitted an 

application for a comprehensive plan map amendment from Low Density 

Residential to Medium Density Residential (11-CP A-05). 

The proposed change to medium density residential also creates an 

opportunity to address the neighboring property owners' concerns about 

traffic on North Five Mile Road. To accommodate development of the 

property for multifamily uses, Douglass proposes to construct a new access 

road Eastward across the property directly to Waikiki Road, an urban minor 

arterial. Exhibit C. The new access road is designed to County road 

standards. Douglass also proposes to construct a pedestrian access to the 

existing sidewalks on Waikiki Road. A secondary access onto North Five 

Mile Road would still be necessary, in part to accommodate access to the 

utility easements . 

. . . With the new primary access onto Waikiki Road, multi-family 

development would significantly reduce the amount of projected traffic on 

North Five Mile Road. In the worst case, with 30 percent of the traffic still 

using the access onto North Five Mile Road, a multi-family development of 

the property at this density would generate only 31 a.m. peak hour trips and 

37 p.m. peak hour trips, far less than what was projected for and approved 

as a part of the Redstone plat. Even ifthe project were developed at the 

maximum density allowed, the trips distributed to North Five Mile would 

still be less than the traffic impacts projected for and approved as part ofthe 

Redstone plat. 

AR at 664. Douglass drew its winding, hilly access road to Waikiki in this picture: 

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AR at 673,695. 

On December 23, 2011, the Spokane County Board of County Commissioners 

adopted Re~olution 11-1191 that approved amendment l1-CPA-05 to the county 

comprehensive plan. In other words, the Board of Commissioners rejected the 

recommendation ofthe County Planning Commission. Resolution 11-1191 covered 

many other subjects other than the zoning change to the Douglass property. Those 

portions of the resolution relevant to amendment ll-CPA-05 provided: 

WHEREAS, ... In approving amendment ll-CPA-05, the Board 

does not concur with the recommendation of the Spokane County Planning 

Commission that the proposal is inconsistent with the Goals and Policies of 

the Spokane County Comprehensive Plan and the written and oral 

testimony alleging traffic impacts to Five Mile Road and Waikiki Road; 

and 

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WHEREAS, ... recognizing compliance with the Growth 

Management Act. 

NOW, THEREFORE, BE IT RESOLVED by the Board that it 

does hereby enter the following Findings of Fact: 

Findings number 17 through 25 below pertain specifically to 

proposed Comprehensive Plan Amendment No. II-CPA-OS: 

17. Testimony in opposition to proposed amendment No. II-CPA-05 

alleged potential impacts to Mead School District and the capacity of 

Prairie View Elementary School, traffic on Five Mile Road, intrusion of 

multi-family use and density into the surrounding neighborhood, traffic 

impacts to the intersection ofFive Mile Road and Waikiki Road, and 

incompatibility ofthe proposed amendment with Goals and Policies 

UL.2.16, UL.2.l7, UL.7.1 and UL.7.2 of the Spokane County 

Comprehensive Plan. 

18. Potential traffic impacts are properly addressed at project review 

level to be conducted pursuant to Spokane County Code as specified in 

Spokane County Division ofEngineering and Road correspondence dated 

August 2, 2011 which advise the applicant that "at such time a site plan is 

submitted for review the applicant shall submit detailed traffic information 

for "review by the County Engineer to determine what traffic impacts, if 

any, that the development would have on surrounding infrastructure. The 

applicant is advised that mitigation may be required for off-site 

improvements." 

19. Subsequent to the public hearing on November 22,2011 

regarding 11-CP A-05, the applicant, at the Board's request, provided a trip 

generation/distribution letter dated November 23, 2011 that provided 

documentation that provision of a second access point from the site to 

Waikiki Road would reduce the number ofvehicle trips using Five Mile 

Road and more specifically in the p.m. peak hours and less trips than the 

previously approved preliminary plat approved for the subject property 

(PN-1974-06: Redstone). 

20. The proposed amendment is consistent with the criteria for a 

zone reclassification under Section 14.402.040 (1) and (2) ofthe Spokane 

County Zoning Code as the proposed amendment implements the goals and 

objectives ofthe Comprehensive Plan and the subject area has experienced 

a change of conditions as evidenced by development of duplex dwelling 

units in proximity to the subject property thereby creating a mix ofland use 

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types and densities in the Urban Growth Area boundary. 

21. Traffic impacts from the proposal will be mitigated for 

compliance with Spokane County Code and concurrency standards at the 

project level as specified by the Division of Engineering and Roads in their 

comments regarding the proposed amendment dated August 2, 2011. 

22. Traffic impacts from the proposed amendment may be further 

mitigated by provision of a second access point to Waikiki Road, to be 

reviewed at the project level, which will reduce the number ofvehicle trips 

on Five Mile Road as evidenced by the trip distribution letter submitted by 

the applicant on November 23, 2011. 

23. The proposed amendment is consistent with Spokane County 

Comprehensive Plan Goals and Policy UL.2.16 that encourage location of 

medium and high density residential categories with good access to major 

arterials such as Waikiki Road, which is designated as an Urban Minor 

Arterial. 

24. The proposed amendment is consistent with the Spokane County 

Comprehensive Plan Goal and Policy UL.2.17 as the subject property is 

located inside the Urban Growth Area, is served with public utilities, 

provides a range of housing types and densities, is considered infill 

development of a site with development constraints due to site topography 

and proximity to existing transmission lines for electricity, an Avista 

Substation, and a natural gas pipeline. 

25. The Board finds that the proposed amendment is consistent with 

the Spokane County Comprehensive Plan Goals and Objectives UL.7, 

UL.7.1, UL.7.2, UL.7.3, UL7.I2, UL.8, UL.8.1, UL.9a, UL.9b, H.3a, 

CF.3.I as the subject site is served with public utilities, is located in the 

Urban Growth Area, has adequate capacity for public sewer, will create an 

urban area with a variety of housing types and prices with a variety of 

residential densities, constitutes limited infill development, and is located in 

an area where adequate public facilities and services can be provided 

without decreasing levels of service. 

26. Approval ofthe proposed amendment should be conditioned 

upon a development agreement between the proponent of the amendment 

and Spokane County requiring at a minimum that development upon the 

property will provide public access to and improvements to Waikiki Road 

including curbs, gutters, sidewalks and drainage as required by applicable 

codes, regulations and Spokane County Road standards based upon the 

development proposed upon the property and review of a detailed traffic 

analysis. The internal road within the development shall be constructed to 

20 

No. 31941-5-III 


Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 


Spokane County Road Standards, shall include sidewalks on both sides to 

facilitate a future pathway, shall be owned and maintained by the property 

owner until site development is complete at which time ownership and 

maintenance shall be transferred to Spokane County and provide a 

termination at the west property line to provide public access to adjoining 

properties with the intent of mitigation of vehicular traffic on Five Mile 

Road and provide access to Waikiki Road consistent with Spokane County 

Road standards. 

BE IT FURTHER RESOLVED, that approval of proposed 

amendment No. 11-CP A-05 and the concurrent zone reclassification thereto 

shall only be of effect upon execution of a Development Agreement 

pursuant to RCW 36.70B as described above in finding number 26. 

AR at 9-14. 

In paragraph 26 of Resolution 11-1191, the Spokane County Board of County 

Commissioners conditioned its approval of ll-CPA-05 on Douglass providing public 

access to and improvements to Waikiki Road including curbs, gutters, sidewalks, and 

drainage, and on the county and Douglass first entering a development agreement. The 

Board of County Commissioners reiterated that traffic concerns should be addressed later 

during the project review process. 

PROCEDURE 

On February 27, 2012, Five Mile Prairie Neighborhood Association and 

Futurewise petitioned the Growth Management Hearings Board for review of the 

approval of Spokane County comprehensive plan amendment ll-CPA-05 and another 

amendment found in Resolution 11-1191. Both organizations claimed that its members 

included landowners and residents of Spokane County who were aggrieved and adversely 

21 

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No. 31941-5-111 


Spokane County v. E. Wash. Growth Mgmt. Hr'gs Bd. 


affected by the county's adoption of the resolution. 

On March 27, 2012, Douglass moved to intervene in the GMHB proceeding. On 

April 4, 2012, the GMHB allowed Douglass to intervene. The prehearing order and 

order granting intervention read, in part: 

A party who fails to attend or participate in any hearing or other 

stage of the adjudicative proceedings before the Board in this case may be 

held in default and an order of default or dismissal may be entered pursuant 

to WAC 242-03-710. 

The GMHB served Douglass with this order. 

Before the GMHB, the Neighborhood Association challenged amendment 11­

CPA-OS as inconsistent with Spokane County's comprehensive plan and several of its 

development regulations. The Neighborhood Association also argued that the 

amendment did not satisfy Spokane County Code 14.402.040's criteria for amendments. 

Spokane County countered that the GMHB lacked jurisdiction to review amendment 11­

CPA-OS. The county casted the rezone as a project permit, appealable to superior court 

under the Land Use Petition Act (LUPA), chapter 36.70C RCW, and not a development 

regulation or comprehensive plan amendment appealable to the GMHB. 

On July 19,2012, the GMHB conducted a hearing on the merits. Douglass neither 

appeared at the hearing nor filed a brief. At the conclusion of the hearing, the GMHB 

moved to dismiss Douglass. 

22 

No. 31941-5-III 


Spokane County v. E. Wash. Growth Mgmt. Hr'gs Bd. 


On August 23,2012, the GMHB iss~ed its final decision and order. The GMHB 

first ruled it had jurisdiction to review the concurrent rezone. The GMHB then dismissed 

Douglass as a party, writing: 

Intervenor Harley C. Douglass, Inc. failed to file any brief and failed 

to attend the July 19,2012 Hearing on the Merits. Pursuant to WAC 242­

03-710, the Board on its own motion entered an Order of Dismissal of 

Harley C. Douglass, Inc. for failure to file any brief and failure to attend the 

Hearing on the Merits. 

AR at 1018. The GMHB served this order on Douglass. 

In its August 23 final decision, the GMHB concluded that Spokane County failed 

to comply with the Growth Management Act when it enacted Resolution 11-1191, as it 

relates to amendment ll-CPA-05. The GMHB began its analysis by recognizing the 

deference owed local governments: 

For the purposes ofboard review ofthe comprehensive plans and 

development regulations adopted by local government, the GMA 

establishes three major precepts: a presumption ofvalidity; a "clearly 

erroneous" standard ofreview; and a requirement of deference to the 

decisions of local government. 

AR at lOll. 

In its final decision, the GMHB found amendment II-CPA-05 consistent with 

Spokane County comprehensive plan policies to: "[ e ]nsure that the design of infill 

development preserves the character ofthe neighborhood," policy H.3.2; "[i]dentifY and 

designate land areas for residential use, including categories for low-, medium-, and highdensity areas," policy UL.7.1; and "[s]ite multifamily homes throughout the Urban 

23 

No. 31941-5-111 


Spokane County v. E. Wash. Growth Mgmt. Hr'gs Bd. 


Growth Area," policy UL.2.17. AR at 1020, 1021, lO24. The GMHB found the 

amendment inconsistent, however, with three of the policies in Spokane County's 

comprehensive plan: UL.2.16, UL.2.20, and CF.3.1. Under urban land use policy 2.16, 

Spokane County should: "Encourage the location of medium and high density residential 

categories near commercial areas and public open spaces and on sites with good access to 

major arterials." AR at 247. The GMHB noted that much of the opposition to the 

proposed amendment to the comprehensive plan concerned access to Five Mile Road. 

The GMHB further observed that the Spokane County Planning Commission 

recommended denial of the proposed amendment due to outdated roads to the Douglass 

site. According to the GMHB, Five Mile Road is steep, windy, and lacks 

accommodations for pedestrians or bicyclists. Yet, Five Mile Road will be one of the 

access points for the proposed development despite neither the County nor the developer 

having any plans for transportation improvements to Five Mile Road. 

In its final decision, the GMHB noted that, after the Planning Commission vote, 

Douglass submitted a letter to the county stating that "the development traffic is proposed 

to primarily use Waikiki Road to access the development with little to no need for the use 

of Five-Mile Road." AR at 693. Nevertheless, the GMHB observed that the potential 

road would wind across closely packed contour lines as it traverses steep terrain. The 

GMHB held that the County Commissioners findings of fact 22 and 23 were not based on 

substantial evidence. Finding of fact 23 inconsistently stated there was good access to 

24 

No. 31941-5-111 


Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 


major arterials such as Waikiki Road but the record showed that Waikiki Road is a minor 

arterial not a major arterial. Five Mile Road is a steep, windy, two lane road that has no 

arterial designation. The GMHB further ruled that the site of the proposed development 

lacked good access to major arterials, and amendment II-CPA-05 was inconsistent with 

and thwarts Spokane County comprehensive plan policy UL.2.I6. 

Under Spokane County comprehensive plan urban land use policy 2.20, Spokane 

County must encourage multifamily projects to be arranged in a pattern of connecting 

streets and blocks, but the policy also allows cul-de-sacs or other closed street systems 

under certain circumstances including, but not limited to, topography and other physical 

limitations which make connecting systems impractical. In its August 23, 2012 final 

decision, the GMHB held amendment II-CPA-05 to contravene UL.2.20. In so ruling, 

the GMHB repeated its comments about poor access to the site. The GMHB focused on 

the inability of pedestrians and bicyclists to access the proposed development from either 

Five Mile Road or Waikiki Road. 

Under Spokane County Capital Facilities and Utilities policy 3.1: "Development 

shall be approved only after it is determined that public facilities and services will have 

the capacity to serve the development without decreasing levels of service below adopted 

standards." AR at 276. The GMHB found that amendment II-CPA-05 thwarted policy 

CF.3.l. The GMHB emphasized the Planning Commission's findings that Five Mile 

Road would not be suitable for children to walk along to attend school, and in recognition 

25 

No. 3I941-S-III 


Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 


of the lack of any pedestrian facilities, the schools have incurred significantly increased 

costs to transport school children who live near Five Mile Road. The GMHB found that 

there was substantial evidence in the record showing that school facilities lack capacity to 

serve the proposed medium density development. 

The GMHB also concluded that amendment II-CPA-OS does not meet the criteria 

for a zone reclassification as mandated under SCZC section 14.402.040. The code 

section provides, in relevant part: 

The County may amend the Zoning Code when one ofthe following 

is found to apply. 

1. The amendment is consistent with or implements the 

Comprehensive Plan and is not detrimental to the public welfare. 

2. A change in economic, technological, or land use conditions has 

occurred to warrant modification of the Zoning Code. 

6. An amendment is deemed necessary by the Commission and/or 

Board as being in the public interest. 

AR at 177-78. 

Douglass argued before the Spokane County Board ofCommissioners and the 

GMHB that the previously approved Redstone plan was no longer feasible in this 

economy of surplus single family residential lots and rising construction costs. In its 

August 23 decision, the GMHB rejected this argument, reasoning: I 

The development of duplex dwelling units in proximity to the 

subject property cannot constitute a change in circumstances under SCZC I 

14.402.040(2) since duplexes are already a permitted use in the "Low 


Density Residential" zone and so there is no need to change the zoning to , 

accommodate duplexes. 


I 

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No. 31941-5-111 


Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 


Moreover, if zoning classifications could be readily changed 

whenever there are cyclical market fluctuations (as advocated by 

applicant's engineering consultant), then property owners could lose the 

reliance value of the zoning code and thereby frustrate the investment 

backed expectations of homeowners. 

AR at 1029 (footnotes omitted). 

Ultimately, the GMHB invalidated amendment II-CPA-OS under RCW 

36.70A.302. The GMHB concluded the amendment substantially interfered with GMA 

goals (1), (3), and (12) in RCW 36.70A.020, which read: 

(1) Urban growth. Encourage development in urban areas where 

adequate public facilities and services exist or can be provided in an 

efficient manner. 

(3) Transportation. Encourage efficient multi modal transportation 

systems that are based on regional priorities and coordinated with county 

and city comprehensive plans. 

(12) Public facilities and services. Ensure that those public facilities 

and services necessary to support development shall be adequate to serve 

the development at the time the development is available for occupancy and 

use without decreasing current service levels below locally established 

minimum standards. 

The GMHB wrote: 

The Board has determined that Spokane County failed to comply 

with the GMA and has remanded this matter to the County to achieve 

compliance under RCW 36.70A.300. The Board hereby finds and 

concludes that the continued validity of Amendment II-CPA-OS would 

substantially interfere with the fulfillment ofGMA Planning Goals 1,3, 

and 12. 

Moreover, there is evidence in the record indicating a risk for project 

vesting in this case, which would render GMA planning procedures as 

ineffectual and moot-if such project vesting would occur, then the remand 

27 

No. 31941-5-111 


Spokane County v. E. Wash. Growth Mgmt. Hr Jgs Bd. 


of this case to the County would be meaningless and there would be no 

practical way to address GMA compliance. 

Conclusion 

Based upon the foregoing, the Board determines that the continued 

validity ofAmendment ll-CPA-OS would substantially interfere with the 

fulfillment ofRCW 36A.70A.020(1) [Urban Growth], .020(3) 

[Transportation], .020(12) [Public facilities and services]. Therefore, the 

Board issues a Determination of Invalidity as to Comprehensive Plan 

Amendment ll-CPA-OS. 

AR at 1034. 

Douglass and Spokane County filed separate petitions with Spokane County 

Superior Court for review of the GMHB's final decision and order. The superior court 

consolidated the appeals. Before the superior court, Douglass and the county again 

argued that the GMHB lacked jurisdiction. Douglass also argued the GMHB erred when 

it dismissed it from the proceedings. 

The superior court reversed the GMHB on all grounds. The court ruled that the 

GMHB lacked subject matter jurisdiction to review the concurrent rezone. The superior 

court reversed the GMHB's dismissal of Douglass "because Harley C. Douglass, Inc. 

complied with the GMHB's orders and the requirements for intervention before the 

GMHB so the GMHB erroneously interpreted or applied the law and/or abused its 

discretion." CP at 494. Last, the superior court reversed the GMHB's invalidation of 

amendment ll-CPA-OS, because "the County's planning decision was not clearly 

erroneous in view of the entire record." CP at 494-95. The Spokane County Superior 

Court remanded to the GMHB with instructions to enter an order finding the county in 

28 

No. 31941-5-III 

Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 

compliance with GMA when adopting amendment II-CPA-05. 

LA W AND ANALYSIS 

Issue I: Whether the GMHB correctly dismissed Douglass from its proceeding? 

Answer I: We decline to resolve this issue, because its resolution does not impact 

the merits of the appeal. 

Before addressing the merits of the Neighborhood Association's appeal, we must 

address two procedural questions. First, the GMHB dismissed Douglass from its 

proceeding because of Douglass' failure to file a brief and appear at the hearing. The 

Neighborhood Association assigns error to the trial court's reversal of this dismissal. The 

Neighborhood Association argues WAC 242-03-710 supports the GMHB 's ruling. As a 

preliminary issue, the Neighborhood Association also contends that, because no party 

challenged Douglass' dismissal before the GMHB, the GMHB's action could not be 

challenged on appeal to the superior court or litigated in this court. In turn, Douglass 

contends that, regardless of its dismissal from the GMHB proceeding, it had standing, 

under the Administrative Procedure Act, chapter 34.05 RCW, to participate in the trial 

court proceeding and has standing for the same reason to participate in this appeal. 

Douglass emphasizes RCW 34.05.530, which gives standing to obtain judicial review of 

agency action to any person aggrieved or adversely affected by the agency action. 

We decline to resolve the issue of Douglass' standing because its resolution does 

not impact our decision on the merits. Principles ofjudicial restraint dictate that if 

29 

No.3l941 M

5M III 

Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 

resolution of another issue effectively disposes of a case, we should resolve the case on 

that basis without reaching the first issue presented. Wash. State Farm Bureau Fed'n v. 

Gregoire, 162 Wn.2d 284,307, 174 P.3d 1142 (2007); Hayden v. Mut. o/Enumclaw Ins. 

Co., 141 Wn.2d 55, 68, 1 P.3d 1167 (2000). 

Even if we ruled that Douglass could not participate in this appeal, Spokane 

County would remain a party. Spokane County forwards the same arguments on the 

merits of the appeal as forwarded by Douglass. Dismissing Douglass would not narrow 

those arguments. Douglass raises some arguments about the GMHB's subject matter 

jurisdiction that the county does not raise. Nevertheless, as shown below, we reject those 

arguments. 

Issue 2: Whether the GMHB held subject matter jurisdiction over the petition 

challenging Resolution 11-1191 and amendment l1-CPA-05 adopted concurrently by 

Spokane County? 

Answer 2: Yes. 

The second procedural question for us to address arises from the trial court's 

ruling that the GMHB lacked subject matter jurisdiction over the Neighborhood 

Association's petition. The Neighborhood Association assigns error to this ruling. Ifwe 

affirmed this ruling by the trial court, we need not address the merits of the appeal. 

Nevertheless, we reverse the trial court's ruling on subject matter jurisdiction. 

RCW 36.70A.280 bestows jurisdiction upon the GMHB over limited subject 

30 
No. 31941-5-111 

Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 

matters. The statute reads, in relevant part: 

( 1) The growth management hearings board shall hear and determine 

only those petitions alleging either: 

(a) That, except as provided otherwise by this subsection, a state 

agency, county, or city planning under this chapter is not in compliance 

with the requirements of this chapter ... or chapter 43.21 C RCW as it 

relates to plans, development regulations, or amendments, adopted under 

RCW 36.70A.040 or chapter 90.58 RCW. 

(Emphasis added.) 

The plans, to which RCW 36.70A.280 refers, are comprehensive plans. RCW 

36.70A.040. The definition of "development regulation" includes "zoning ordinances," 

but excludes "approval of a project permit application" as defined in RCW 

36.70B.020(4). RCW 36.70A.030(7). RCW 36.70B.020(4) defines a "project permit 

application" as: 

any land use or environmental permit or license required from a 

local government for a project action, including but not limited to building 

permits, subdivisions, binding site plans, planned unit developments, 

conditional uses, shoreline substantial development permits, site plan 

review, permits or approvals required by critical area ordinances, sitespecific rezones authorized by a comprehensive plan or subarea plan, but 

excluding the adoption or amendment ofa comprehensive plan, subarea 

plan, or development regulations except as otherwise specifically included 

in this subsection. 

(Emphasis added.) 

Resolution of subject matter jurisdiction in this appeal depends on whether we 

characterize amendment II-CPA-05 to the county's comprehensive plan as a rezone, on 

the one hand, or a project permit or site-specific rezone authorized by a previously 

31 

No.31941-5-III 


Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 


existing comprehensive plan, on the other hand. The resolution has characteristics of 

both. If the amendment is a rezone, the GMHB held subject matter jurisdiction. We hold 

the resolution and corresponding comprehensive plan amendment to be a rezone other 

than a site-specific rezone. We also note that Spokane County's argument that the 

amendment constituted a project permit contradicts its position on the merits that no 

relief should be granted the Neighborhood Association because its complaints about the 

proposed project can be heard at the permitting stage. 

After the trial court's ruling, this court issued its opinion in Spokane County v. 

Eastern Washington Growth Management Hearings Board, 176 Wn. App. 555, 309 P.3d 

673 (2013), review denied, 179 Wn.2d 1015 (2014) (Spokane County II). We deem 

Spokane County II controlling. In that case, as here, the Spokane County Board of 

Commissioners amended the county's comprehensive plan and rezoned certain property 

in one legislative action. We addressed whether the rezone was an amendment to a 

development regulation subject to challenge under the GMA or a project permit subject 

to review under LUPA. We held the GMHB had jurisdiction because the rezone was 

adopted at the same time as the comprehensive plan amendment: 

Considering all, we hold a site-specific rezone is a project permit 

approval under LUPA ifit is authorized by a then-existing comprehensive i 

plan and, by contrast, is an amendment to a development regulation under 

the GMA if it implements a comprehensive plan amendment. In sum, the f

hearings board had subject matter jurisdiction to review amendment 07­

CPA-05's rezone for compliance with both the GMA and SEPA. See I 

former RCW 36.70A.280(l)(a), .290(2). 

32 

No.3l94l-5-III 

Spokane County v. E. Wash. Growth Mgmt. Hr'gs Bd 

Spokane County 11, 176 Wn. App. at 572 (emphasis added). Thus, if the county authority 

adopts the rezone concurrent with the amendment to the comprehensive plan, the GMHB 

can assume subject matter jurisdiction under the GMA. 

In this appeal, Spokane County respectfully disagrees with our analysis in Spokane 

County 11, but concedes its application. Douglass urges reversal of Spokane County 11. 

Douglass argues Spokane County 11 failed to explain when and how a comprehensive 

plan becomes "existing," and then Douglass poses hypothetical questions in an attempt to 

belittle our holding. 

Douglass first asks: if a county adopts a rezone one day after the authorizing 

amendment to a comprehensive plan, is the amended plan an "existing planT' Stated 

differently, do the rezone and the amendment to the comprehensive plan retain 

concurrent status if not adopted on the same day? Or does the rezone implement an 

already existing comprehensive plan if the county adopts the rezone a day after the 

authorizing amendment to the comprehensive plan? Douglass presumably wishes to 

drive the point that a government entity could avoid application of Spokane County 11 by 

always adopting a requested rezone one day, or perhaps even one hour, after amending 

the comprehensive plan, such that the two are no longer concurrent or subject to the 

GMHB's jurisdiction. Since no delay occurred in the adoption of the rezone here, 

however, we need not address Douglass' question. 

33 
No. 31941-5-111 


Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 


Douglass also asks the existential question: "Ifthe GMHB upheld an amendment 

to a comprehensive plan, would the comprehensive plan, as amended, then become an 

'existing' comprehensive plan such that the concurrent rezone became 'authorized' and 

therefore a 'project permit' over which the GMHB lacked jurisdiction?" Br.ofResp't 

Harley C. Douglass at 17. In other words, is the amendment in existence before approval 

by the GMHB? We believe the answer is no, since the upholding of an amendment is not 

itself a second amendment. Under RCW 36.70A.320(1), comprehensive plans and 

amendments thereto are presumed valid upon adoption. 

In Washington, the doctrine of stare decisis requires a clear showing that an 

established rule is incorrect and harmful before it is abandoned. Riehl v. Foodmaker, 

Inc., 152 Wn.2d 138, 147,94 P.3d 930 (2004); In re Rights to Waters ofStranger Creek, 

77 Wn.2d 649, 653,466 P.2d 508 (1970). Douglass has not met its burden of showing 

Spokane County II was incorrectly decided or that its holding is harmful. 

Issue 3: Whether the GMHB erred when declaring amendment II-CPA-05 to be 

inconsistent with Spokane County's comprehensive plan policy UL.2.16? 

Answer 3: No. 

We now begin our analysis of each of the alleged inconsistencies of the 

comprehensive plan amendment with the preexisting Spokane County comprehensive 

plan and the county zoning code. The GMHB found amendment II-CPA-05 inconsistent 

with three of Spokane County's comprehensive plan policies: UL.2.I6, UL.2.20, and 

34 

No. 31941-5-III 


Spokane County v. E. Wash. Growth Mgmt. Hr'gs Ed. 


CF.3.1. We address separately whether the plan amendment violated the respective 

polices. We later address whether any such violations compels the invalidation of 

amendment 11-CPA-05. 

The central purpose ofthe Growth Management Act is to coordinate land use, 

zoning, subdivision, planning, development, natural resources, public facilities, and 

environmental laws into one scheme in order to concentrate new development in compact 

urban growth areas, while conserving environmentally critical land and valuable natural 

resources. Richard L. Settle & Charles G. Gavigan, The Growth Management Revolution 

in Washington: Past, Present, and Future, 16 U. PUGET SOUND L. REv. 867,872-73 

(1993). The GMA requires counties to compose comprehensive plans to responsibly 

manage their growth and to enact regulations to effectuate those plans. A comprehensive 

plan is a guide or blueprint to be used when making land use decisions. Citizens for 

Mount Vernon v. City ofMount Vernon, 133 Wn.2d 861,873,947 P.2d 1208 (1997). 

Several GMA provisions impose requirements upon the comprehensive plan and plan 

amendments. RCW 36.70A.l30(1 )(d) dictates: 

Any amendment of or revision to a comprehensive land use plan 

shall conform to this chapter [the Growth Management Act]. Any 

amendment ofor revision to development regulations shall be consistent 

with and implement the comprehensive plan. 

RCW 36.70A.070 commands: "The plan shall be an internally consistent document." 

Under the GMA, a newly adopted or amended development regulation must be 

35 

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s No. 31941-5-III 

Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 

"consistent with and implement the comprehensive plan." RCW 36.70A.040(3)(d), 

(4)(d), (5)(d); See, e.g., Spokane County II, 176 Wn. App. at 574-75. There need not be 

strict adherence, but any proposed land use decision must generally conform to the 

comprehensive plan. Citizens/or Mount Vernon, 133 Wn.2d at 873; Barrie v. Kitsap 

County, 93 Wn.2d 843,849,613 P.2d 1148 (1980). Ultimately, the comprehensive plan 

and any amendment to it must obey the GMA' s clear mandates. Spokane County IJ, 176 

Wn. App. at 575. The GMHB is charged with adjudicating GMA compliance and 

invalidating noncompliant comprehensive plans. RCW 36.70A.280; .302; City 0/ 

Arlington v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 164 Wn.2d 768, 778, 193 P.3d 

1077 (2008). 

Under Spokane County's comprehensive plan Urban Land Use (UL) policy 2.16, 

the county must: "Encourage the location of medium and high density residential 

categories near commercial areas and public open spaces and on sites with good access to 

major arterials." AR at 247. The Spokane County Board of Commissioners found: 

23. The proposed amendment is consistent with Spokane County 

Comprehensive Plan Goals and Policy UL.2.16 that encourage location of 

medium and high density residential categories with good access to major 

arterials such as Waikiki Road, which is designated as an Urban Minor 

Arterial. 

AR at 13 (emphasis added). The County's findings of fact did not address whether the 

Douglass project would lie near commercial areas or public open spaces. The GMHB 

held that the finding of fact 23 was not based on substantial evidence. We agree. 

36 

No. 31941-5-111 


Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Ed. 


We first address whether the Douglass site is near commercial areas and public 

open spaces. The Spokane County Board of Commissioners entered no finding that the 

land lay near either. The Douglass land is .9 miles from the nearest commercial area. 

Spokane County argues that the Neighborhood Association does not indicate what 

constitutes or what distance constitutes "near." Although we agree that the 

Neighborhood Association provides no help in measuring nearness in this context, the 

Spokane County Board of Commissioners also afforded us no assistance. Instead, the 

Board of Commissioners ignored the policy language. In its brief, Spokane County also 

fails to supply any definition for "near." We will therefore defer to the GMHB who did 

not consider .9 miles to be near the proposed development. Presumably the policy seeks 

to provide shopping areas within reasonable walking distance for the large number of 

residents of a medium density development. Although many people walk more than .9 

miles each day, few people walk this distance for shopping purposes. 

The county also contends policy UL.2.16 only "encourages" closeness and good 

access. It does not "demand" closeness or good access. Along these lines, the county 

argues that policy UL.2.16 is only one of competing goals to be balanced with other 

goals. The weighing of these goals, Spokane County argues, is for the local government 

and not the GMHB. We might consider these arguments compelling had the Spokane 

County Board of Commissioners weighed, on the record, the various goals and polices of 

the GMA. It did not. We will return to these arguments and our response when we 

f 

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37 

No. 31941-5-III 

Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 

determine if amendment ll-CPA-05 should be declared invalid. Our decision in Spokane 

County I, 173 Wn. App. 310 (2013) addressed the use of the word "encourage" in the 

context of addressing the invalidity of the zoning amendment. 173 Wn. App. at 333. We 

note that in Spokane County I, this court held that the rezoning amendment passed muster 

under Spokane County's UL.2.16 because the high density project was adjacent to a 

shopping center and surrounding commercial development. 

UL.2.16 also desires that the Douglass site benefit from good access to major 

arterials. Douglass' property abuts two roads: Five Mile Road and Waikiki Road. Five 

Mile Road is not a major arterial. For the first time on appeal, Spokane County argues 

that Waikiki Road is a major arterial. We must limit our response to the county's 

argument to the record before the GMHB. Pierce County SherifJv. Civil Servo Comm 'n 

for Sheriff's Emp. ofPierce County, 98 Wn.2d 690,693-94,658 P.2d 648 (1983). The 

record defeats the county's argument. 

A hearing examiner addressing Douglass' Redstone application wrote that Waikiki 

Road is a minor principal arterial. Nevertheless, the examiner's finding is not a direct 

source for this information. Also, the examiner's use of the adjective "principal" rather 

than "major," lessens the credibility of the finding. "Minor" and "principal" are 

inconsistent terms. 

The Department ofBuilding and Planning staff report identified Waikiki as a 

t 

"Minor Urban ArteriaL" Douglass' letter to the Board of Commissioners labels Waikiki 

I 

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No. 31941-5-111 


Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 


Road as minor arterial. Spokane County's own internally inconsistent finding of fact 23 

designates Waikiki Road as minor arterial. 

Spokane County agrees that the record before the Board of Commissioners and the 

GMHB only labeled Waikiki Road as a minor arterial. Spokane County claims any 

identification ofWaikiki Road as a minor arterial is an unfortunate error and asks this 

court to take judicial notice of Spokane County's Arterial Road Map, available at 

wwW.spokanecounty.orgidataiengineers/traffic/arterialroadmap.pdf, which identifies 

Waikiki as an "urban principal arterial." We deny Spokane County's request. 

ER 201 permits a court to take judicial notice of "adjudicative facts ... not subject 

to reasonable dispute" in the sense that they are either "( 1) generally known within the 

territorial jurisdiction of the trial court or (2) capable of accurate and ready determination 

by resort to sources whose accuracy cannot reasonably be questioned." Spokane County 

does not isolate which ground or grounds it forwards in asking us to take judicial notice. 

We do not consider the classification ofWaikiki Road's status to be common knowledge 

within Spokane County, nor does the county argue such. We also know of no decision 

that recognizes an Internet web page to be a source whose accuracy cannot reasonably be 

questioned. In In re Marriage o/Meredith, 148 Wn. App. 887,904,201 P.3d 1056 

(2009), the husband asked this court to take judicial notice of information on internet 

sites of immigrant rights organizations in order to support his claim ofjudicial bias. This 

39 

No.31941-5-III 

Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 

court reasoned, with double negatives, that information contained on the internet sites 

were not from a source whose accuracy cannot reasonably be questioned. 

We recognize that Spokane County asks us to take judicial notice of information 

on a government entity website, rather than a website of questionable origin. 

Nevertheless, we will not take judicial notice of information on a government website 

that is inconsistent with all evidence before the government entity and contrary to the 

entity's own findings of fact. 

The Spokane County Board of Commissioners also found that the Douglass land 

garnered good access to Waikiki Road. The GMHB correctly concluded that substantial 

evidence did not support this finding. A review of the record shows no evidence 

supported the finding. "Good access" is more of an opinion than a fact, because of the 

modifier "good." Spokane County failed to include in its finding any underlying facts 

upon which it found good access to Waikiki Road. 

Unlike other policy goals couched in concurrency language, policy UL.2.16 seeks 

good access presently, as opposed to simply by completion of development. At the 

present, the site lacks direct access to Waikiki Road. Douglass' engineer included a map 

depicting a potential site road joining with Waikiki Road. This street would wind across 

closely packed contour lines as it traverses steep terrain. These characteristics are not 

hallmarks of good access. Finally, Douglass previously represented, when advocating the 

Redstone subdivision, that an access road to Waikiki Road was impossible. 

40 
NO.31941·S·III 


Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 


Spokane County may also rely on its conditioning of amendment Il-CPA-OS on 

the developer's entering a development agreement requiring access to Waikiki Road. 

This reliance is misplaced since UL.2.16 desires current, good access. The proposed 

street is neither current nor good. 

Spokane County contends that policy UL.2.16 does not capitalize "major arterial" 

and the term is not defined in the comprehensive plan. So, argues the county, the 

definition of "major arterial" is not necessarily the same as found in the county 

classification system, and the Board of Commissioners was therefore free to conclude 

that Waikiki Road is a major arterial. Spokane County is using doublespeak. The county 

fails to provide us any other definition for "major arterial." The Board of Commissioners 

failed to include in its findings why Waikiki Road should be considered a major arterial 

when it is otherwise designated a minor arterial. 

Spokane County relies on our decision in Spokane County I. In Spokane County I, 

we ruled that the county only needs to ensure sufficient facilities at time of development, 

not at the time of amending its comprehensive plan. Nevertheless, this ruling was not 

based on UL.2.16, but on the GMHB's use ofRCW 36.70A.070(6)(b) to invalidate the 

zoning amendment. The statute demands concurrency. Concurrency does not exact 

sufficient utilities and roads until someone begins to live on the land. UL.2.16 

encourages currency, which is sufficient roads in the present. Thus, the county's reliance 

41 

No. 31941-5-III 

Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 

is misplaced. Spokane County I did not address the question ofwhether the decision's 

proposed development enjoyed good access to a major arterial. 

Spokane County may argue that, under policy UL 2.16, the acreage need not enjoy 

good access to major arterials, if the site remains near commercial areas. We do not read 

the policy as such since the policy employs the word "and" between commercial areas 

and good access. We presume "and" functions conjunctively. State v. Kozey, 183 Wn. 

App. 692, 698, 334 P.3d 1170 (2014), review denied, 182 Wn.2d 1007 (2015). Also, 

nearness to a commercial area does not lessen the need for a major arterial. To the 

contrary, this closeness may increase the need. 

We would be remiss to continue without now discussing the standards of review 

for the GMHB, the superior court, and this appellate court. The GMA directs the GMHB 

to grant Spokane County considerable deference in its planning decisions. RCW 

36.70A.320(3) reads: 

In any petition under this chapter, the board, after full consideration 

ofthe petition, shall determine whether there is compliance with the 

requirements of this chapter. In making its determination, the board shall 

consider the criteria adopted by the department under RCW 36. 70A.190( 4). 

The board shall find compliance unless it determines that the action by the 

state agency, county, or city is clearly erroneous in view ofthe entire record 

before the board and in light ofthe goals and requirements ofthis chapter. 

To find an action "clearly erroneous," the GMHB must be left with the firm and definite 

conviction that a mistake has been committed. King County v. Cent. Puget Sound 

Growth Mgmt. Hr'gs Bd, 142 Wn.2d 543,552, 14 P.3d 133 (2000). 

42 

No. 31941-5-III 


Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 


The GMA contains a unique provision, adopted by the state legislature in 1997, 

presumably because the legislature concluded that the GMHB failed to give sufficient 

deference to local government planning decisions. RCW 36.70A.320 I reads: 

The legislature intends that the board applies a more deferential 

standard of review to actions of counties and cities than the preponderance 

ofthe evidence standard provided for under existing law. In recognition of 

the broad range of discretion that may be exercised by counties and cities 

consistent with the requirements of this chapter, the legislature intends for 

the board to grant deference to counties and cities in how they plan for 

growth, consistent with the requirements and goals of this chapter. Local 

comprehensive plans and development regulations require counties and 

cities to balance priorities and options for action in full consideration of 

local circumstances. The legislature finds that while this chapter requires 

local planning to take place within a framework of state goals and 

requirements, the ultimate burden and responsibility for planning, 

harmonizing the planning goals ofthis chapter, and implementing a 

county's or city's future rests with that community. 

This GMA provision shows the legislature's desire that the GMHB reluctantly declare a 

county action to be noncompliant or invalid. This deference is not unlimited, however. 

Our state high court observed: 

Without question, the "clearly erroneous" standard requires that the 

Board give deference to the county, but all standards of review require as 

much in the context of administrative action. The relevant question is the 

degree of deference to be granted under the "clearly erroneous" standard. 

The amount is neither unlimited nor does it approximate a rubber stamp. It 

requires the Board to give the county's actions a "critical review" and is a 

"more intense standard of review" than the arbitrary and capricious 

standard. 

Swinomish Indian Tribal Cmty. v. W. Wash. Growth Mgmt. Hr'gs Bd., 161 Wn.2d 415, 

435 n.8, 166 P.3d 1198 (2007). 

43 

No. 31941-5-111 


Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Ed. 


Spokane County and Douglass lost before the GMHB. When a party appeals a 

GMHB decision to a court, the court reviews the board decision, not the local 

government action. RCW 36.70A.300(5). We do not defer to the Superior Court. 

Spokane County /1, 176 Wn. App. at 564-65 (2013). On review, we stand in the same 

position as a superior court reviewing a board's decision. Lewis County v. W. Wash. 

Growth Mgmt. Hr'gs Bd., 157 Wn.2d 488,497, 139 PJd 1096 (2006). The court, be it 

the superior court or an appeals court, applies a different standard of review from that of 

the GMHB as supplied by the Washington Administrative Procedure Act. RCW 

34.05.570 reads, in pertinent part: 

(1) Generally. Except to the extent that this chapter or another statute 

provides otherwise: 

(a) The burden of demonstrating the invalidity of agency action is on 

the party asserting invalidity; 

(3) Review of agency orders in adjudicative proceedings. The court 

shall grant relief from an agency order in an adjudicative proceeding only if 

it determines that: 

(d) The agency has erroneously interpreted or applied the law; 

(e) The order is not supported by evidence that is substantial when 

viewed in light of the whole record before the court, which includes the 

agency record for judicial review, supplemented by any additional evidence 

received by the court under this chapter; 

(i) The order is arbitrary or capricious. 

Under the potpourri of rules, we afford the GMHB deference, while the GMHB 

grants the local government deference. Our job is easy if the GMHB affirms the local 

44 

No.31941-5-Ill 


Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 


county, but becomes problematic, because ofthe rival review standards, ifthe GMHB 

reverses the local entity. 

We conclude the GMHB gave Spokane County sufficient deference when it found 

amendment Il-CPA-05 noncompliant with policy UL.2.I6. The Spokane County Board 

of Commissioners failed to inform anyone what constitutes "near" under its 

comprehensive plan policy that requires medium density housing to be near open space 

or commercial zoning. The record revealed the absence of this desired nearness. The 

undisputed evidence showed that the Douglass land lacks good access to a major arterial. 

The Spokane County Board of Commissioners' action conflicted with its own planning 

commission's findings and recommendations. The GMHB's finding of noncompliance is 

supported by the evidence or lack thereof before it. The GMHB's order was neither 

arbitrary nor capricious. We reverse the trial court's ruling to the extent that the trial 

court reversed the GMHB's ruling concerning policy UL.2.16. 

Issue 4: Whether the GMHB erred when ruling that amendment II-CPA-05 is 

inconsistent with Spokane County's comprehensive plan policy UL.2.20? 

Answer 4: Yes. 

Spokane County's comprehensive plan urban land use policy 2.20 requires 

Spokane County to: "Encourage new developments, including multifamily projects, to be 

arranged in a pattern of connecting streets and blocks to allow people to get around easily 

by foot, bicycle, bus or car. Cul-de-sacs or other closed street systems may be 

45 
No. 31941-5-111 

Spokane County v. E. Wash. Growth Mgmt. Hr'gs Bd. 

appropriate under certain circumstances including, but not limited to, topography and 

other physical limitations which make connecting systems impractical." AR at 248. The 

Spokane County Board of Commissioners failed to enter a finding of fact regarding 

compliance with policy UL.2.20. 

In its findings and conclusions, the GMHB focused on the ability of pedestrians 

and bicyclists to access the proposed development from either Five Mile Road or Waikiki 

Road and the danger of Five Mile Road and the proposed internal access road to Waikiki 

Road. The GMHB thereby misapplied UL.2.20. The GMHB's concerns do not relate to 

UL.2.20. By its express terms, UL.2.20 addresses the internal arrangement of streets 

within a new development. The diagram that accompanies UL.2.20 bolsters this reading. 

The diagram focuses on internal arrangement. 

The Neighborhood Association argues that the proposed comprehensive plan map 

amendment established that the site is not arranged in a pattern of connecting streets and 

blocks, rather it is arranged in a cul-de-sac pattern of unconnected streets disfavored by 

policy UL.2.20. This argument fails to note the second sentence of the policy, which 

permits cul-de-sacs under circumstances of difficult terrain. Furthermore, the GMHB 

either did not address this argument or, if it did, made no finding of a lack of connecting 

streets. The record does not even show the Neighborhood Association forwarding the 

argument to the GMHB. The GMHB did not hold amendment II-CPA-05 to thwart 

policy UL.2.20 on this ground. 

46 

No. 31941-5-111 


Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 


Our review of an administrative decision is limited to a review ofthe record 

below. Pierce County SherifJv. Civil Servo Comm 'nfor SherifJ's Emp. ofPierce County, 

98 Wn.2d at 693-94 (1983). A corollary to this rule is that we do not address arguments 

not raised below. We will not decide an appeal from an administrative agency when no 

argument or evidence was presented to the agency concerning the issue. Int'l Ass 'n of 

Firefighters, Local No. 469 v. Pub. Emp 't Relations Comm 'n, 38 Wn. App. 572, 579,686 

P.2d 1122 (1984). 

In Spokane County I, 173 Wn. App. at 341-342, we discussed UL.2.20 without 

holding that the policy applies only internally. Instead, our opinion includes a discussion 

about connections outside the development. We did not rest our decision, however, on 

such a reading ofUL.2.20, but rather held any violation ofUL.2.20 was unimportant at 

the zoning amendment stage since transportation elements would be addressed at project 

permitting stage. This ruling is an additional reason for holding that amendment 11­

CPA-05 does not violate Spokane County comprehensive plan policy UL.2.20. Douglass 

has yet to propose a plat. 

We affirm the trial court to the extent the trial court reversed the GMHB's ruling 

that amendment l1-CPA-05 violated policy UL.2.20. The GMHB's ruling was likely 

based on an erroneous interpretation of the policy. Evidence does not support the 

GMHB's ruling. 

Issue 5: Whether the GMHB committed error when it ruled that amendment 11­

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NO.31941-5-III 


Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 


CPA-05 contravenes Spokane County comprehensive plan policy CF.3.1? 

Answer 5: Yes. 

Under Spokane County Comprehensive Plan Capital Facilities and Utilities (CF) 

policy 3.1: "Development shall be approved only after it is determined that public 

facilities and services will have the capacity to serve the development without decreasing 

levels of service below adopted standards." AR at 276. In its finding of fact 25, the 

Spokane County Board of Commissioners found the Douglass property rezone consistent 

with CF.3.1 because the property is located "'in an area where adequate public facilities 

and services can be provided without decreasing levels of service." AR at 13. In ruling 

Resolution 11-1191 and amendment ll-CPA-05 inconsistent with policy CF.3.1, the 

GMHB focused on local schools being at capacity and the costs those schools would 

incur to bus children, who cannot safely walk along Five Mile Road. 

We reverse this ruling of the GMHB for two reasons. First, adequacy of facilities 

under policy CF.3.1 is determined at the project permit stage. Second, there is a lack of 

evidence of decreasing education services below adopted standards. The GMHB's ruling 

is contrary to law and not supported by substantial evidence. 

The GMHB ruling and the Neighborhood Association argument clashes with our 

decision in Spokane County J, 173 Wn. App. at 335. Comprehensive plan policy CF 3.1 

regulates the conditions for "approval of a development." But a zoning "amendment is 

not a development proposal." Spokane County J, 173 Wn. App. at 335. The rezone did 

48 

No.31941-5-III 


Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 


not authorize Douglass to develop the land. Without a specific project proposal, Spokane 

County cannot determine whether the proposed development would overextend extant 

public facilities and services. 

Spokane County I, did not directly address Spokane County comprehensive plan 

policy CF.3.1, but rather addressed transportation goals and policies that required 

transportation system improvements concurrent with new development. Nevertheless, 

the decision's reasoning applies in the context of policy CF.3.1, since the policy refers to 

the time of development. We have held the time of development to be the project 

permitting stage not the time of a rezone. The Neighborhood Association seeks to 

distinguish Spokane County I from this appeal on the basis that CF.3.1 uses the word 

"shall," and the transportation policies addressed in Spokane County I lacked this 

imperative. Regardless, Spokane County I holds that development occurs at the 

permitting stage. 

Moving to the second basis of our reversal, in finding the comprehensive plan 

amendment violative of policy CF.3.l, the GMHB relied only on the lack of capacity of 

schools. Policy CF.3.1 demands that facilities have the capacity to serve the development 

without decreasing levels of service below adopted standards. Evidence supports the 

GMHB's finding that schools are at capacity and that schools incur additional busing 

costs due to Five Mile Road's current condition. Nevertheless, the GMHB did not find 

that the Douglass development would cause a decrease in the level of school services 

49 

No. 31941-5-111 


Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 


below adopted standards. The GMHB heard no evidence of any education standards, let 

alone a prospective breach ofthe standards. The school district's director of facilities 

wrote that Douglass' request for a change in land use would have "an impact on schools." 

AR at 343. But he did not elaborate on the anticipated impact. Likewise, while busing 

children is expensive, nothing in the record shows busing would drop below an adopted 

standard or the cost of busing would reduce other school standards. 

The Neighborhood Association raises the legitimate concern that Spokane County 

concurrency regulations do not allow it the opportunity to complain about the adequacy 

of school, fire protection, and police services at the time that Douglass applies for a 

project development permit. In forwarding this argument, the Neighborhood Association 

moves beyond the GMHB ruling, which limited itself to school services, and worries 

about the potential adequacy of police services, fire protection services, and solid waste 

disposal, in addition to schools. 

Concurrency is the prospective availability and adequacy of utilities, public 

facilities, and public services at the time when residents begin to occupy a new housing 

development. Spokane County Code (SCC) 13.650.102 distinguishes between direct and 

indirect concurrency. Direct concurrency requirements apply to transportation, public 

water, and public sewer facilities and demand that the developer show, when applying for 

a project permit, that such facilities will be adequate. SCC 13.650.1 02(2). Indirect 

concurrency requirements apply to fire protection, police protection, parks and recreation, 

50 

No.31941-5-III 


Spokane County v. E. Wash. Growth Mgmt. Hr'gs Bd. 


libraries, solid waste disposal, and schools. SCC 13.650.102(3). Indirect concurrency is 

determined annually during the update ofthe county's capital facilities plan. SCC 

13.650.1 02(3). 

Despite these differences in concurrency evaluations, we find the Neighborhood 

Association's argument wanting. The Neighborhood Association fails to explain why it 

cannot register its concerns during the annual update ofthe capital facilities plan. More 

importantly, Spokane County I, held that "development" in this context means the time of 

permit application rather than a rezone. The Neighborhood Association has not shown 

this holding in Spokane County I, to be incorrect or harmful, as to overcome the principle 

ofstare decisis. 

The Neighborhood Association notes that the Spokane County comprehensive 

plan uses the term "development" to all stages ofthe process of developing. The 

Neighborhood Association also emphasizes that "development" is not defined in policy 

CF.3.l. From this observation, the Neighborhood Association argues that all potential 

problems with roads, schools, and other facilities should be resolved before the rezone 

and not await the building process. Here again, the Neighborhood Association goes 

beyond the ruling ofthe GMHB and even beyond its argument regarding indirect 

concurrency limitations. The Neighborhood Association also does not show that the term 

"development" as used in CF.3.1 means a rezone or demands resolving facility questions 

before a rezone. 

51 

No. 31941-5-III 


Spokane County v. E. Wash. Growth Mgmt. Hr'gs Bd. 


The Spokane County Board of Commissioners found that the Douglass land "is 

located in an area where adequate public facilities and services can be provided without 

decreasing levels of service." AR at 750. The Neighborhood Association argues that this 

finding is different from a finding that public facilities and services will have the capacity 

to serve the development without decreasing levels of service below adopted standards as 

required by policy CF.3 .1. The Neighborhood Association emphasizes the lack of 

planning to ensure a continued acceptable level of services. Nevertheless, the 

Neighborhood Association carried the burden before the GMHB to show a likely drop of 

services below accepted standards. The Neighborhood Association failed to present 

evidence of this drop, let alone the applicable standards. 

Issue 6: Whether the GMHB committed error when ruling that amendment 11­

CPA-05 disregards SCZC section 14.402.040? 

Answer 6: No. 

Spokane County Zoning Code [SCZC] 14.402.040 reads, in relevant part: 

The County may amend the Zoning Code when one of the following 

is found to apply. 

1. The amendment is consistent with or implements the 


Comprehensive Plan and is not detrimental to the public welfare. 


2. A change in economic, technological, or land use conditions has 

occurred to warrant modification of the Zoning Code. 

Clerk's Papers (CP) at 521. 

The Spokane County Board of Commissioners found: I 

52 I 

1 

i 

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No. 31941-S-III 

Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 

20. The proposed amendment [amendment ll-CPA-OS] is 


consistent with the criteria for a zone reclassification under Section 


14.402.040 (1) and (2) ofthe Spokane County Zoning Code as the proposed 

amendment implements the goals and objectives of the Comprehensive 

Plan and the subject area has experienced a change of conditions as 

evidenced by development ofduplex dwelling units in proximity to the 

subject property thereby creating a mix of land use types and densities in 

the Urban Growth Area boundary. 

CP at 522 (footnote omitted). In reversing Spokane County, the GMHB reasoned: 

The development of duplex dwelling units in proximity to the 

subject property cannot constitute a change in circumstances under SCZC 

14.402.040(2) since duplexes are already a permitted use in the "Low 

Density Residential" zone and so there is no need to change the zoning to 

accommodate duplexes. 

Moreover, if zoning classifications could be readily changed 

whenever there are cyclical market fluctuations (as advocated by 

applicant's engineering consultant), then property owners could lose the 

reliance value ofthe zoning code and thereby frustrate the investment 

backed expectations ofhomeowners. 

AR at 1029 (footnote omitted). We ask whether amendment ll-CPA-OS satisfies either 

clause 1 or 2 of the zoning code section, or at least whether the Spokane County Board of 

Commissioners reasonably found that the zoning change satisfied one of the clauses. 

In its finding 20, the Board of Commissioners referred to the goals and objectives 

ofthe comprehensive plan. Nevertheless, the comprehensive plan contains no goals or 

objectives labeled as such. SCZC 14.402.000 requires consistency with the 

comprehensive plan, but does not mention any "goals" or "objectives" of the plan. We 

conclude that the Board of County Commissioners must have referred to the visions and 

policies ofthe comprehensive plan in its finding 20. As we analyzed above, amendment 

53 

No. 31941-5-111 


Spokane County v. E. Wash. Growth Mgmt. Br 'gs Bd. 


ll-CPA-05 thwarts comprehensive plan policy UL.2.16. 

We question whether one inconsistency with the many policies of the 

comprehensive plan is sufficient to declare the amendment as a whole disobedient to 

SCZC section 14.402.040(1) but we need not resolve this question. Under clause 1 of the 

code section, the zoning amendment must be consistent with the comprehensive plan and 

not detrimental to the public welfare. The Spokane County Board of Commissioners 

made no finding of an absence of a detriment. Strong evidence showed the zoning 

change harmed the public, particularly neighbors, and benefited only Douglass. The 

Spokane County Planning Commission found the zoning change to adversely impact the 

public interest, and the Board of Commissioners registered no disagreement. Therefore, 

amendment ll-CPA-05 does not satisfy SCZC section 14.402.040(1). 

The Spokane County Board of Commissioners' finding 20 supports the conclusion 

that the Board of Commissioners found a sufficient change in land use conditions to 

warrant the zoning amendment. According to the Board of Commissioners. the subject 

area had experienced a change of conditions by reason of development of duplex 

dwelling units in proximity to the subject property thereby creating a mix of land use 

types and densities. Douglass had argued that changed economic circumstances 

warranted the amendment. The Board of Commissioners did not rely on any change in 

the economy. 

We find ambiguity in the language of and confusion between the GMHB's and 

54 

No. 31941-5-111 


Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 


Board of Commissioners' respective interpretations ofSCZC 14.402.040(2). The 

GMHB's ruling implied that the GMHB believed the change in land use conditions in the 

area referred to in SCZC 14.402.040(2) is a change consistent with the zoning change 

sought. In other words, Douglass or the Board of Commissioners, according to the 

GMHB, needed to show that the new land uses in adjoining lands were other medium 

density uses, not simply duplexes allowed in a low density zone. Although duplexes may 

have been recently built on the adjoining land, duplexes were always permitted, and, in 

fact, remain permitted on the Douglass property. SCZC 14.402.040(2) could also be read 

to require the change in conditions to occur inside the proposed zoning change boundary, 

rather than outside the rezone as concluded by the Board of Commissioners. Finally, the 

section could be read to require the change in land use conditions are conditions in the I

~ adjoining land such as uses not already allowed in the neighborhood. In other words, the 

adjoining land also needed a zoning change. 

We would defer to the Spokane County Board of Commissioners' reading of its 

own code section, but we do not consider the resolution of the various readings of SCZC 

14.402.040(2) helpful. Regardless, Spokane County, the GMHB, and this court must still 

determine whether some change in land use conditions merits the rezone. We conclude 

SCZC 14.402.040(2) does not refer to any change in conditions, otherwise there would be 

no limit to the circumstances under which the code section permits a rezone. No matter f 

I 

how small or large the change, no matter how inconsistent or consistent to land uses in ! 

I 

I 

55 

[ 

1 
No. 31941-5-II1 


Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Ed. 


the rezoned area the change in adjoining land use may be, the county could justify the 

adopting of any change in zoning. For example, the section should not be read to include 

the planting of a garden on adjoining land, which theoretically is a change in land use 

conditions. We conclude a reasonable reading ofSCZC 14.402.040(2) requires us to 

determine whether the change in land use conditions necessitates a rezone or the change 

in conditions is close in nature to the rezone uses such that the rezone is a natural 

extension ofthe change. 

We find compelling the Neighborhood Association's argument that the building of 

duplexes in the neighborhood should not warrant the change in zoning the Douglass 

property from low density to medium density in neighboring property, because a 

multifamily project on the Douglass land significantly increases the number of dwellings 

per acre compared to duplexes. By way of illustration, under low density zoning, 

Douglass' Redstone plat contemplated 38 lots, 26 for single family dwellings and 12 for 

duplexes for a total of 50 dwelling units. Even if Douglass placed duplexes on each lot, 

the total units would be 78. On the other hand, proposed medium density zoning would 

allow 200 dwelling units, more than double the units in low density. The multifamily 

medium density project would also generate a significant increase in need for parking. 

The nearby duplexes therefore are not the type of land use change that generates a need I

for a rezone on the Douglass land. Multifamily units on the Douglass land are not a 

natural extension to the neighborhood duplexes. The rezone does not preserve the I 

56 

No. 31941-5-111 


Spokane County v. E. Wash. Growth Mgmt. Hr'gs Bd. 


character of the extended neighborhood. 

Spokane County argues that economic circumstances impacting the area in 20 I 0 

to 20 II rendered the property as zoned low density fiscally impractical. Nevertheless, 

the Board of Commissioners did not justify the rezone on economic changes. The 

County Board of Commissioners, rather than this appellate court, should be the body to 

make the original finding of changes in economic conditions meriting a rezone. 

Spokane County may argue on appeal that the change in land use conditions that 

merits the rezone is the change that occurred by reason of the comprehensive plan map 

amendment, by which the county rezoned the Douglass property from low density to 

medium density use. Assuming the county forwards this argument, we reject it. The 

rezone and the comprehensive plan amendment were essentially the same action by the 

Board of Commissioners. One should not justify the other. 

We conclude the GMHB gave Spokane County sufficient deference when it found 

amendment II-CPA-05 noncompliant or violative of SCZC 14.402.040(2). Substantial 

evidence failed to show a change in land use conditions meriting a rezone for the 

Douglass land. The Spokane County Board of Commissioners failed to address whether 

a zoning amendment furthers or harms the public welfare. The planning commission 

found the rezone detrimental. The GMHB' s order was neither arbitrary nor capricious. 

We reverse the trial court's ruling to the extent that the trial court reversed the GMHB's 

ruling concerning SCZC 14.402.040(2). 

57 

No. 31941-5-111 


Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Ed. 


We question whether the GMHB holds power to rule a comprehensive plan 

amendment noncompliant with a county's zoning code. RCW 36.70A.300 grants 

authority to the GMHB to review a plan's compliance only with the GMA, the Shoreline 

Management Act, and the State Environmental Policy Act. RCW 36.70A.280 grants the 

GMHB authority to address whether a development regulation complies with the GMA 

and a zoning ordinance is a development regulation. This authority may not extend, 

however, to determining whether a county complies with its internal code when adopting 

a zoning change. Nevertheless, Spokane County has not argued that the GMHB may not 

find its plan amendment noncompliant with the county code, or that the GMHB can use 

such noncompliance to form the basis for a determination of invalidity of the plan 

amendment. 

Issue 7: Whether the GMHB committed error when it ruled Spokane County 

amendment 11-CP A-05 invalid under the GMA? 

Answer 7: We do not answer this question. Since we have both reversed and 

affirmed several determinations of noncompliance made by the GMHB, we remand to the 

GMHB to readdress whether amendment II-CPA-05 should be invalidated. 

We have reversed the GMHB on two of the four grounds upon which it 

invalidated amendment II-CPA-05. We must now determine what remedy or remedies I 

i 

are appropriate. In particular, we must ask whether we should affirm the GMHB' s I 

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declaration of invalidity of the plan amendment now that there are only two 

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No. 31941-5-111 


Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 


noncompliance grounds: UL.2.16 and SCZC section 14.402.040. 

A number of GMA sections address remedies available to the GMHB. Those 

remedies include a two-step process. If the GMHB finds a county action to be 

noncompliant with the GMA, the GMHB will first enter an order of remand for the 

county to comply. Second, the GMHB will determine whether to invalidate the action 

such that the action lacks force during the time ofremand. Presumably, the purpose of 

invalidity is to prevent owners and developers from gaining vested rights under the 

county action, such as a rezone, during the remand. 

RCW 36.70AJOO reads, in relevant part: 

(1) The board shall issue a final order that shall be based exclusively 

on whether or not a state agency, county, or city is in compliance with the 

requirements of this chapter [the GMA], [the Shoreline Management Act, 

or the State Environmental Policy Act]. 

(3) In the final order, the board shall either: 

(a) Find that the state agency, county, or city is in compliance with 

the requirements ofthis chapter. 

(b) Find that the state agency, county, or city is not in compliance 

with the requirements of this chapter ... in which case the board shall 

remand the matter to the affected state agency, county, or city. The board 

shall specify a reasonable time not in excess of one hundred eighty days, or 

such longer period as determined by the board in cases of unusual scope or 

complexity, within which the state agency, county, or city shall comply 

with the requirements of this chapter. The board may require periodic 

reports to the board on the progress the jurisdiction is making towards 

compliance. 

(4)(a) Unless the board makes a determination of invalidity under 

RCW 36.70AJ02, a finding of noncompliance and an order of remand 

shall not affect the validity of comprehensive plans and development 

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No. 31941-5-III 


Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 


regulations during the period ofremand. 


RCW 36.70A.302(1) reads: 


(I) The board may determine that part or all of a comprehensive plan 

or development regulations are invalid if the board: 

(a) Makes a finding of noncompliance and issues an order of remand 

under RCW 36.70A.300; 

(b) Includes in the final order a determination, supported by findings 

of fact and conclusions oflaw, that the continued validity of part or parts of 

the plan or regulation would substantially interfere with the fulfillment of 

the goals of this chapter; and 

(c) Specifies in the final order the particular part or parts ofthe plan 

or regulation that are determined to be invalid, and the reasons for their 

invalidity. 

RCW 36.70A.302(1) refers to a "'comprehensive plan" and ""development 

regulations." At issue in this appeal is a plan amendment. The GMHB declared the plan 

amendment and not the underlying comprehensive plan to be invalid. The GMHB did 

not invalidate the entire Spokane County Resolution 11-1191, which contained 

comprehensive plan amendments, but only that portion ofthe resolution involving the 

rezone of the Douglass land. The GMHB's singling out of amendment II-CPA-05 for 

invalidity, rather than declaring the underlying comprehensive plan invalid or the entire 

Resolution 11-1191, makes sense. 

In this case, the GMHB invalidated amendment II-CPA-05 for substantially 

interfering with GMA goals (1), (3), and (12), of the thirteen GMA goals found in RCW 

36.70A.020. The relevant subsections reads: 

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No. 3194l-S-III 


Spokane County v. E. Wash. Growth Mgmt. Hr'gs Bd. 


(1) Urban growth. Encourage development in urban areas where 

adequate public facilities and services exist or can be provided in an 

efficient manner. 

(3) Transportation. Encourage efficient multi modal transportation 

systems that are based on regional priorities and coordinated with county 

and city comprehensive plans. 

(12) Public facilities and services. Ensure that those public facilities 

and services necessary to support development shall be adequate to serve 

the development at the time the development is available for occupancy and 

use without decreasing current service levels below locally established 

minimum standards. 

We agree with the GMHB that amendment 11-CPA-OS interferes with UL.2.16 and 

SCZC section 14.402.040. This agreement supports a conclusion that amendment 11­

CPA-OS interferes with the identified goals of the GMA. Nonetheless, we disagree with 

the GMHB that amendment Il-CPA-OS contradicts comprehensive plan polices UL.2.20, 

and CF.3 .1. This disagreement undercuts the GMHB' s conclusion that amendment 11­

CPA-OS interferes with the stated GMA goals. 

We wrote in Spokane County I: 

In identifying 13 goals to guide local comprehensive planning, the 

legislature itself cautioned that it was not listing goals in order ofpriority 

and that its identification of the goals "shall be used exclusively for the 

purpose of guiding the development of comprehensive plans and 

development regulations." RCW 36.70A.020. Goals considered by local 

governments in comprehensive planning may be mutually competitive at 

times. For that reason, if a map amendment meaningfully advances other 

comprehensive plan goals and policies, a finding by the growth board that it 

fails to advance another-if it fails to advance, for example, a goal of 

encouraging high density residential development on sites having good 

access to a major arterial-that alone cannot be an invalidating 

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No. 31941-5-111 

Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 

inconsistency. The weighing of competing goals and policies is a 

fundamental planning responsibility of the local government. 

173 Wn. App. at 333 (citation omitted). Based on this passage in Spokane County I, we 

would defer to any reasonable weighing of the goals and policies conducted by the 

Spokane County Board of Commissioners. While the Board of Commissioners declared 

amendment 11-CPA-05 consistent with the goals of the GMA, the Board of 

Commissioners never provided any reasoning behind this declaration. More importantly, 

the Board of Commissioners never recognized the rezone's inconsistency with 

comprehensive plan amendment UL.2.16 or the violation of SCZC section 14.402.040. 

Thus, the Board of Commissioners never weighed whether countervailing goals and 

policies of the GMA trump the clash with GMA goals and polices resulting from 

inconsistencies with comprehensive plan policy UL.2.16 or the violation of SCZC section 

14.402.040. 

RCW 34.05.574, a section of the Administrative Procedure Act, controls our 

review of the GMHB's decision. This statute reads: 

(1) In a review under RCW 34.05.570, the court may (a) affirm the 

agency action or (b) order an agency to take action required by law, order 

an agency to exercise discretion required by law, set aside agency action, 

enjoin or stay the agency action, remand the matter for further proceedings, 

or enter a declaratory judgment order. 

(4) If the court sets aside or modifies agency action or remands the 

matter to the agency for further proceedings, the court may make any 

interlocutory order itfinds necessary to preserve the interests ofthe parties 

and the public, pending further proceedings or agency action. 

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No. 31941-S-I11 


Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 


(Emphasis added.) 

Based on our authority under RCW 34.0S.S74, we remand this case to the GMHB 

for proceedings consistent with this opinion. The GMHB should reweigh the extent of 

the interference by amendment II-CPA-OS with the goals and policies of the GMA, 

based on the amendment's noncompliance with only comprehensive plan policy UL.2.16 

and SCZC section 14.402.040. 

We order that the GMHB's declaration of invalidity remain in effect during the 

additional review by the GMHB. Without this declaration of invalidity, Douglass might 

gain vested rights to develop its property within the limited strictures of medium density 

zoning. To preserve the interests of the parties, Douglass should not gain any vested 

rights during the additional review. 

CONCLUSION 

We hold the GMHB possessed subject matter jurisdiction to review the concurrent 

amendment and resolution. We affirm in part and reverse in part the superior court's 

substantive ruling that reverses the GMHB and reinstates Spokane County 

Comprehensive Plan amendment II-CPA-OS. We hold amendment II-CPA-OS 

inconsistent with comprehensive plan policy UL.2.16 and SCZC section 14.402.040, but 

consistent with comprehensive plan policy UL.2.20 and CF.3.l. We remand to the 

GMHB for further proceedings consistent with this opinion. 

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No. 31941-5-II1 


Spokane County v. E. Wash. Growth Mgmt. Hr 'gs Bd. 


A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

WE CONCUR: 


Lawrence-Berrey, J. 

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