### FILED AUG. 13,2013 In theOfficeofthe ClerkofCourt W AStateCourtofAppeals,Division III



### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE KITIITAS COUNTY, a political 

### ) No. 30728-0-111 subdivision ofthe State of 

### ) Washington, 

### ) ) PUBLISHED OPINION Appellant, 

### ) 

### ) 

# v. ) ) KITTITAS COUNTY CONSERVATION ) and FUTUREWISE, ) And ) ELLISON THORP PROPERTY, LCC ) and ELLISON THORP PROPERTY II, ) LCC, ) And 

### ) EASTERN WASHINGTON GROWTH 

### ) MANAGEMENT HEARINGS BOARD, 

### ) ) Respondents. 

### ) 

# ! 1

• l BROWN, 

### J.

- Developmentopponents Kittitas County Conservation Coalition and Futurewise (collectively Futurewise) ask usto reinstate a decisionthe Eastern 

### 1 

# I Washington Growth Management Hearings Board entered against development 

# I proponents Kittitas County (the County), Ellison Thorp Property LLC, and Ellison Thorp 

### 1 

### j 

# !
.1 

# tNo. 30728·0·111 Kittitas County v. Kittitas CountyConservation Coal. Property II LLC (collectively Ellison), butwhich the superior court dissolved. The hearings board invalidated the County's planning actions in amendments 10-12 and 10­ 13 afterfinding and concluding the County did not, in adopting them, complywith the Growth ManagementAct (GMA), chapter 36.70A RCW, orthe State Environmental PolicyAct (SEPA), chapter43.21C RCW. The superior court held. and the County and Ellison now contend, the hearings board lacked subject matterjurisdiction to review the County's rezone because it is a site-specific land use decision within the superior court's exclusivejurisdiction underthe Land Use Petition Act (LUPA). chapter 36.70C RCW. Additionally. the County and Ellison contend the hearings board's decision lacks substantial evidence, erroneously interprets and applies the law, and is arbitrary and capricious. We reject their contentions and reverse. FACTS In June 2010, Ellison proposed two amendments tothe County's comprehensive plan map and zoning map "forthe purpose ofdeveloping the Thorp Travel Center consisting ofatruck stop, restaurant and hotel and RV park." Administrative Record (AR) at 13, 14. The first proposal. amendment 10-12, expanded a Type 3 Limited Area of More Intensive Rural Development (LAMIRD) from 12 to 30.5 acres within the property'sAgriculture Study Overlay. The second proposal, amendment 10-13, changed the property's comprehensive plan category from Rural to Commercial and changed its zone designation from Agriculture 20 to Commercial Highway. The proposed development would cover over 29 acres, comprising a 4,000 square footfuel station, a 10,000 square foot retail store, a 5,000 square foot retail 

### 2

### t

• 

### 1 J I 1 f No. 30728-0-111 

## f Kittitas Countyv. Kittitas County Conservation Coal. ) store, a 6,000 square foot restaurant, a 24,000 square foot hotel with 50 units, a 5,000 

# 1 ,) square foot recreational vehicle parkwith 45 spaces, and parking lots with spaces for 

# j hundreds ofcars and trucks. These uses would operate 24 hours a day, employ up to 

# 1**~** 

# i 140 people, and generate $10.9 million annually. The proposed developmentwould 

# I require new roads and a six-acre septic orsewer reserve area. Surrounding uses are 

# i mainly agricultural. The proposed developmentwould be located nextto Interstate Highway 90. The 

# 1 existing LAMIRD encompasses a fuel station and retail store located across the 

# 1 

# , highwayfrom the proposed development, and an energy utility and office building 

# I 1 located nextto the proposed development. A truck stop once stood on a small portion ofthe existing LAMIRD located nexttothe proposed development. 

## j 

# I Apparently, Ellison submitted a SEPA environmental checklist on June 10,2010**~** butthe County made no corresponding threshold determination. Then, the County 

### 1 issued a SEPA environmental checklist on October 15, 2010 and a corresponding 

# j determination of nonsignificance on November2, 2010. The determination of 

## J 

# I nonsignificance stated, "There is no agency administrative appeal ([Kittitas County 

# I f Code (KCC)] 15.04.210 and 158.05.010)." AR at 465. Thus, Futurewise did notappeal the determination of nonsignificanceto any county-level official. On December21,2010, the Board of County Commissioners enacted Ordinance 2010-14, adopting Ellison's proposals along with five others during the annual comprehensive plan amendment cycle. The hearings board invalidated the County's



### 3No. 30728·0-111 Kittitas County v. Kittitas County Conservation Coal. planning actions upon Futurewise's appeal. The superior court dissolved the hearings board's decision. The County and Ellison appealed. REVIEW STANDARD We reviewthe hearings board decision underthe Administrative ProcedureAct (APA), chapter 34.05 RCW. Feil v. E. Wash. Growth Mgmt. Hrgs Bd., 172 Wn.2d 367, 376,259 P.3d 227 (2011); see RCW 34.05.510. We applyAPA standards directlyto the hearings board record, performing the same function as the superior court. Cityof Redmond v. Cent. PugetSound Growth Mgmt. Hrgs Bd., 136Wn.2d 38,45,959 P.2d 1091 (1998); see RCW34.05.526. The party challenging the hearings board decision (here the County and Ellison) bearsthe burden of proving it is invalid. RCW 34.05.570(1)(a). The decision is invalid if it suffers from at least one of nine enumerated infirmities. RCW 34.05.570(3). We must grant relieffrom the decision if, as relevant here: (b) The order is outside the statutory authority orjurisdiction ofthe agency conferred by any provision of law; (d) The agency has erroneously interpreted orapplied the law; (e) The order is not supported by evidencethat is substantial when viewed in light ofthewhole record

... ; [or] (i) The order is arbitrary or capricious. RCW 34.05.570(3)(b), (d)-(e), (i). Our review is de novo under RCW 34.05.570(3)(b) or (d), determining whether the decision contains a legal error. Kittitas County v. E. Wash. Growth Mgmt. Hrgs Bd., 172Wn.2d 144,155,256 P.3d 1193 (2011). We accord the hearings board's



### 4No. 30728-0-111 Kittitas County v. Kittitas County Conservation Coal. interpretation ofthe GMA "substantial weight." King County v. Cent. PugetSound Growth Mgmt. Hrgs Bd., 142 Wn.2d 543, 553,14 P.3d 133 (2000). Butthe interpretation does not bind us. CityofRedmond, 136Wn.2d at 46. We applythe substantial evidence review standard to challenges under RCW 34.05.570(3)(e), determining whetherthere exists '''a sufficient quantity ofevidenceto persuade a fair-minded person ofthe truth orcorrectness ofthe order.'" Cityof Redmond, 136Wn.2d at46 (quoting Callecod v. Wash. State Patrol, 84 Wn. App. 663, 673,929 P.2d 510 (1997». Weviewthe evidence "in the light mostfavorable to

... 'the partywho prevailed in the highestforum that exercised fact-finding authority.'" Cityof Univ. Place v. McGuire, 144Wn.2d 640, 652,30 P.3d 453 (2001) (quoting State exreI. Uge & Wm. B. Dickson Co. v. CountyofPierce, 65 Wn. App. 614, 618, 829 P.2d 217 (1992». Doing so '''necessarily entails accept[ing] the factfinder's views regarding the credibility ofwitnesses and the weightto be given reasonable but competing inferences.'" Id. (quoting Uge 

### & Wm. B. Dickson Co., 65Wn. App. at618). We applythe arbitrary and capricious review standard to challenges under RCW 34.05.570(3)(i), determining whether the decision constitutes '''willful and unreasoning action, taken without regard to orconsideration ofthe facts and circumstances surrounding the action.'" CityofRedmond, 136Wn.2d at 46-47 (quoting Kendall v. Doug/as, Grant, Uncoln 

### & Okanogan Counties Pub. Hosp. Dist. No.6, 118Wn.2d 1, 14, 820 P.2d 497 (1991». "'Wherethere is room fortwo opinions, an action taken after due consideration is not arbitrary and capricious even though a reviewing court may believe it to be erroneous.'" Id. at 47 (quoting Kendall, 118Wn.2d at 14). 

### 5 

# ( 

# ! tNo. 30728-0-111 Kittitas Countyv. Kittitas CountyConservation Coal. ANALYSIS A Jurisdiction The issue is whetherthe hearings board had subject matterjurisdiction to review amendment 1 0-13's rezone underthe GMA. The County and Ellison contend the
rezone is within the superior court's exclusivejurisdiction under LUPA We review the hearings board's assertion ofjurisdiction de novo. RCW 34.05.570(3)(b); Kittitas County, 172 Wn.2d at 155. Certain local governments like Kittitas County must "adopta comprehensive plan under [the GMA] and development regulations that are consistentwith and implement the comprehensive plan." RCW 36.70A040(3)(d), (4)(d), (5)(d). Ifa county later amends its comprehensive plan, it must concurrently adopt oramend consistent implementing development regulations. WAC 365-196-805(1). A comprehensive plan is a county's "generalized coordinated land use policy statement." RCW36.70A030(4). Development regulations are a county's "controls placed on development or land use activities

... , including

...zoning ordinances." RCW 36.70A030(7). But a "decision to approve a project permit application" is not a development regulation, even if it appears in a legislative ordinance or resolution. Id. Instead, a project permit approval is
a "land use decision" under LUPA RCW36.70C.020(2)(a). Project permit applications include proposalsfor "site-specific rezones authorized by a comprehensive plan" but exclude proposals for "the adoption oramendment ofa comprehensive plan

... or development regulations." RCW36.70B.020(4).

6No. 30728-0-111 Kittitas County v. Kittitas County Conservation Coal. The hearings board has exclusivejurisdiction to review petitions alleging a county did not complywith the GMA in adopting or amending its comprehensive plan or development regulations. 1 RCW 36.70A280(1)(a); former RCW 36.70A290(2) (1995); Somers v. Snohomish County, 105Wn. App. 937, 945,21 P.3d 1165 (2001). Additionally, the hearings board may review petitions alleging a county did not comply

. with SEPA in adopting or amending its comprehensive plan ordevelopment regulations.

RCW 36.70A280(1)(a); former RCW 36.70A290(2). But the hearings board "do[es] not havejurisdiction to decide challenges to site-specific land use decisions because [those] decisions do not qualify as comprehensive plans ordevelopment regulations." Woods v. Kittitas County, 162Wn.2d597, 610,174 P.3d 25 (2007); see RCW 36.70A030(4), (7); RCW36.708.020(4); RCW 36.70C.020(2)(a). Instead, the superior court has exclusivejurisdiction under LUPAto review site-specific land use decisions not subject to review by quasi-judicial agencies like the hearings board. RCW 36.70C.030(1)(a)(ii); Woods, 162 Wn.2d at 610. Here, whetherthe hearings board had subject matterjurisdiction to review amendment 10-13's rezone depends on whether it is an amendmentto a development regulation underthe GMA ora project permit approval under LUPA Woods, 162 Wn.2d at 610; see RCW 36.70A.030(7); RCW36.70B.020(4). The parties agree the rezone was site specific. See Woods, 162Wn.2d at 611 n.7 (stating a site-specific rezone is a change in the zone designation ofa '''specifictract''' atthe request of'''specific parties.'"

1 The Eastern Washington Growth Management Hearings Board hasjurisdiction oversuch petitions arising from counties "east ofthe crest ofthe Cascade Mountains," including Kittitas County. RCW 36.70A.260(1)(b). 

### 7No. 30728-0-1" Kittitas Countyv. Kittitas CountyConservation Coal. (quoting Cathcarf-Maltby-ClearviewCmty. Council 

### v. Snohomish County, 96 Wn.2d 201, 212, 634 P.2d 853 (1981))). But the parties dispute whetherthe rezone was or needed to be "authorized by a comprehensive plan." RCW 36.70B.020(4). First, the County and Ellison argue the rezone was a project permit approval regardless ofwhetherthe comprehensive plan authorized it. They reason RCW 36.70B.020(4) contains a nonexclusive list ofproject permit approvals including all sitespecific rezones without restriction. Butthe County and Ellison ignore express limitations on the items listed. See In re Parentage ofJ. M.K., 155Wn.2d 374,393, 119 P.3d 840 (2005) (stating a court must not "simply ignore" express terms when interpreting a statute); State ex reI. Baisden 

### v. Preston, 151 Wash. 175, 177,275 P. 81 (1929) (stating a court must interpret a statute as awhole so that, if possible, "'no clause, sentence, orword shall be superfluous, void, or insignificant'" (quoting Wash. Mkt. Co. v. Hoffman, 101 U.S. 112, 115-16,25 L. Ed. 782 (1879»); Murray v. Dep'tof Labor& Indus., 151 Wash. 95,102,275 P. 66 (1929) (a court must, ifpossible, interpret
a. statute so as to give every word or phrase "meaning" as well as "significance and effect" (internal quotation marks omitted». Under RCW 36.70B.020(4), a site-specific
rezone is a project permit approval solely if"authorized by a comprehensive plan"; otherwise, it is "the adoption oramendment ofa ... development regulation[]." We must interpretthis language so as to give it meaning, significance, and effect. Second, the County and Ellison argue the comprehensive plan authorized the
rezone becausethe Countyfound the rezone met all necessary criteria, including compatibility with the comprehensive plan. They reason the County ensured such 

### 8

### i No. 30728-0-111 Kittitas Countyv. Kittitas CountyConseNation Coal. 

# I compatibility by changing the property's comprehensive plan categoryfrom Rural to 

# ! Commercial "as a precondition to" changing its zone designation from Agriculture 20 to 

### 1 

# I Commercial Highway. Br. of Resp't Kittitas County at24. But the County accomplished 

## I each act concurrently by approving amendment 10-13. And, to be "authorized by a 

# I 

# ! comprehensive plan" within the meaning of RCW 36.708.020(4), the rezone had to be 

# I "allowed by an existingcomprehensive plan." Spokane Countyv. E. Wash. Growth 

# I Mgmt. Hr'gs Bd., 160 Wn. App. 274, 281-83, 250 P.3d 1050 (emphasis added), review 

### J denied, 171 Wn.2d 1034 (2011); see a/so Woods, 162Wn.2d at612 n.7, 613; 

# ! 1 Wenatchee SportsmenAss'n v. Chelan County, 141 Wn.2d 169, 179-80,4 P.3d 123 

# i

,**~** (2000). 

## I 

# I The County and Ellison acknowledge the Rural comprehensive plan category existing before amendment 10-13 did not allowthe rezone to Commercial Highway. And, the Commercial comprehensive plan category existing after amendment 10-13
was not part ofthe existing comprehensive plan atthe time ofthe rezone. Thus,·the
rezone is nota project permitapproval under LUPA because the then-existing comprehensive plan did not authorize it. Instead the rezone is an amendmentto a development regulation underthe GMA because it implements the comprehensive plan amendment. The hearings board's decision is within its statutory authority. See RCW 34.05.570(3)(b). 

# f Dictum in Coffeyv. Cityof Walla Walla, 145Wn. App. 435, 187 P.3d 272 (2008), does not require a different conclusion. There, the city amended its comprehensive plan butdid not rezone the property. Id. at438. The Coffeycourt held the superior 

### 9No. 30728-0-111 Kittitas County v. Kittitas CountyConservation Coal. court lacked subject matterjurisdiction to review the comprehensive plan amendment under LUPA becausethe hearings board had exclusivejurisdiction to do so underthe GMA. Id. at441. The Coffeycourt continued, It is not uncommon forthose hoping to develop propertyto seek both a comprehensive plan amendment and a rezone ofproperty in the same proceeding. Anyone seeking to challenge both aspects ofa ruling granting both requests would by statute have to appeal to two entities: the [hearings board] forthe comprehensive plan amendment and superior courtforthe rezone. Id. at 442. This statementwas unnecessaryto the Coffeycourt's holding because the city amended its comprehensive plan but did not rezone the property. Additionally, this statement is true solely ifa rezone is site specific and authorized by athen-existing comprehensive plan. In making this statement, the Coffeycourt did not consider whether a rezone that implements a comprehensive plan amendment can be an amendmentto a development regulation. Considering all, we hold a site-specific rezone is a project permit approval under LUPA if it is authorized by a then-existing comprehensive plan and, by contrast, is an amendmentto a development regulation underthe GMA if it implements a comprehensive plan amendment. In sum, the superior court erred because the hearings board had subject matterjurisdiction to review amendment 10-13's rezone for compliance with both the GMAand SEPA. See RCW 36.70A.280(1)(a); former RCW 36.70A.290(2).

10No. 30728-0-111 Kittitas Countyv. Kittitas CountyConservation Coal. B. Exhaustion ofAdministrative Remedies Ellison contends Futurewise failed to exhaust an available administrative remedy because it did not appeal the County's SEPA determination of nonsignificance to the county commissioners before petitioning the hearings board. Whether a party must exhaust an available administrative remedy is a legal issue we review de novo. See Evergreen Wash. Healthcare Frontier, LLC v. Dep'tofSoc. 

### &Health Servs., 171 Wn. App. 431,445,287 P.3d 40 (2012) (citing Sintra, Inc. v. CityofSeattle, 119Wn.2d 1, 19 n.10, 829 P.2d 765 (1992)). A party aggrieved by a county's SEPA action must use any available administrative appeal before petitioning the superior court forjudicial review. RCW 43.21C.075(4); WAC 197-11-680(3)(c); Citizens for Clean Airv. CityofSpokane, 114 Wn.2d 20, 26, 785 P.2d 447 (1990); see also RCW 34.05.534; Citizens forMount Vernon v. CityofMount Vernon, 133 Wn.2d 861,866,947 P.2d 1208 (1997). But this requirement does not applyto Futurewise because it did not petition the superior court forjudicial review; the County and Ellison did. And, the GMA's standing and jurisdictional requirements allowed Futurewise to petition the hearings board directly for administrative review. See RCW 36.70A.280(1)(a), (2), (4); former RCW 36.70A.290(2); RCW 34.05.530. Even if Futurewise were required to use some other administrative appeal before petitioning the hearings board, the procedurethe County and Ellison suggestwas not available to Futurewise. While a party may appeal the County's SEPA action to the county commissioners, this procedure applies solely ifthe action relates to the County's
11No. 30728-0-111 Kittitas County v. Kittitas CountyConservation Coal. decision on a "land use permit[]"-a project permit application. KCC 15A.01.030; see KCC 15A.02.050(1); KCC 15A.04.020(2); KCC 15A.10.020. But a party may appeal the County's SEPA action to the hearings board directly ifthe action relates to the County's "amendmentsto the

... comprehensive plan ordevelopment regulations." KCC 15B.05.010; see KCC 15.04.210(1)(b). Because amendments 10-12 and 10-13 are not decisions on land use permits but amendments to the comprehensive plan and development regulations, Futurewise could not appeal the determination of nonsignificance to the county commissioners. Indeed, the determination of nonsignificance recognizes this, stating, 'There is no agency administrative appeal (KCC 15.04.210 and 158.05.010)." AR at465. In sum, Futurewise was not required to appeal the County's SEPA determination ofnonsignificanceto the county commissioners before petitioning the hearings board. C. Verities and Abandoned Issues Noted Because the County and Ellison bearthe burden of proving the hearings board decision is invalid, see RCW 34.05.570(1)(a), their briefsto this court had to "set forth a separate concise statement ofeach errorwhich [they] contend[J was made bythe [hearings board], togetherwith the issues pertaining to each assignment oferror," RAP 10.3(h); see 3 KARL B. TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE RAP 10.3 drafters'cmt. 1994 amends. at 54 (7th ed. 2011) (stating RAP 10.3(h) appliesto "[a] party contending thatthe administrative agency decision was in error, regardless ofthe party's designation as 'appellant' or 'respondent''' before the appellate court).

12No. 30728-0-111 Kittitas Countyv. Kittitas County Conservation Coal. This required their briefs to include "[a) separate assignment oferrorfor each finding offact [they) contend[) was improperly made," and to do so "with reference to the finding by number." RAP 10.3(g); see RAP 10.3(h). Unchallenged agencyfactual findings are verities on appeal. Hilltop Terrace Homeowner'sAss'n v. IslandCounty, 126Wn.2d 22, 30, 891 P.2d 29 (1995). Additionally, their briefs had to present "argument in support ofthe issues presented for review, togetherwith citations to legal authority and references to relevant parts ofthe record." RAP 10.3(a){6); see RAP 10.3(b). Unsubstantiated assignments oferror are deemed abandoned. Howell v. Spokane & InlandEmpire BloodBank, 117Wn.2d 619, 624, 818 P.2d 1056 (1991). The County and Ellison's briefs tothis court do not assign errorto or argue against the hearings board's factual findings. Therefore, the factual findings are verities
on appeal. See RAP 10.3{g)-(h); Hilltop Terrace, 126Wn.2d at 30. Additionally, the 

# I
County and Ellison's briefs to this court assign errorto but do notargue againstthe merits ofthe hearings board's decision on SEPA noncompliance.2 Therefore, these assignments oferror are abandoned. See RAP 10.3{a){6), (b); Howell, 117Wn.2d at 624. Notably, the County and Ellison did not raise the above issues in their petitions to 

# I
the superior court either. In sum, we review solelythe hearings board's legal 

## i 

# I t conclusions on GMA noncompliance.3

## ~ 2 Whilethe County and Ellison baldly assertthe environmental checklists and 

# i ! determination of nonsignificance were adequate under SEPA, they do not substantiate 

### f this**ar~ument.** 

## t Butwhen addressing Ellison's challenges under RCW 34.05.570(3){d) and (e), we still considerthe hearings board'sfactual findings to determinewhetherthey support 

# I f the hearings board's legal conclusions. See generallyMorgan v. PrudentialIns. Co. of 

# t 13 !No. 30728-0-111 Kittitas County v. Kittitas County Conservation Coal. D. Hearings Board Decisions The issue is whetherthe hearings board erred by invalidating amendments 10-12 and 10-13. Ellison contends the hearings board erroneously decided amendment 10­ 12'sexpansion ofthe Type 3 LAMIRD is noncompliantwith the GMA's requirements and is inconsistentwith the comprehensive plan's goals, policies, and objectives. Next, Ellison contends the hearings board erroneously decided amendment 10-13's rezone is inconsistentwith the comprehensive plan's prior designation ofan Agriculture Study Overlay. We review the hearings board's decision to ensure it is supported by substantial evidence in light ofthe whole record, does not erroneously interpret orapply the law, and is notarbitrary or capricious. RCW 34.05.570(3)(d)-(e), (i); Kittitas County, 172Wn.2d at 155; City

# 0' Redmond, 136Wn.2d at46-47. The hearings board may decide a petition alleging a county did notcomply with the GMA in adopting oramending its comprehensive plan ordevelopment regulations. RCW 36.70A.280(1)(a); former RCW 36.70A.290(2). The petitioner (here Futurewise) bears the burden ofproving noncompliance. See RCW 36.70A.320(2). But a county has "broad discretion in adapting the requirements ofthe GMAto local realities." Quadrant Corp. v. Cent. PugetSound Growth Mgmt. Hr'gs Bd., 154 Wn.2d 224,236, 110 P.3d 1132 (2005); see RCW 36.70A.3201. Thus, the hearings board must presume validity and find compliance unless the county's planning action is "clearly
erroneous in view ofthe entire record before the board and in light ofthe goals and requirements of[the GMA]." RCW 36.70A.320(1), (3). A county's planning action is Am., 86 Wn.2d 432, 437,545 P.2d 1193 (1976) (stating the review standard applicable 14No. 30728·0·111 Kittitas County v. Kittitas County Conservation Coal. clearly erroneous if it leavesthe hearings board with a '''firm and definite conviction that
a mistake has been committed.'" King County, 142 Wn.2d at 552 (quoting Dep'tof Ecology v. Pub. Uti!. Dist. No.1, 121 Wn.2d 179,201,849 P.2d 646 (1993)). A comprehensive plan amendment must "conform to [the GMAJ." RCW 36.70A130(1)(d). But "the GMA is notto be liberally construed." Woods, 162Wn.2d at 612 

### &n.8, 614 (citing SkagitSurveyors & Eng'rs, LLC v. Friends ofSkagit County, 135 Wn.2d 542, 565, 958 P.2d 962 (1998)). Thus, a comprehensive plan must'obeythe GMA's clear mandates. See Thurston County v. W Wash. Growth Mgmt. Hr'gs Bd., 164Wn.2d 329, 34142,190 P.3d 38 (2008). A newly adopted oramended development regulation must be "consistentwith and implementthe comprehensive plan." RCW 36.70A040(3)(d), (4)(d), (5)(d); RCW 36.70A.130(1)(d); seeWAC 365­ 196-805(1). But "a comprehensive plan is a 'guide' or 'blueprint' to be used when making land use decisions." Citizens forMount Vernon, 133Wn.2d at 873 (quoting Barrie v. Kitsap County, 93 Wn.2d 843,849,613 P.2d 1148 (1980». Thus, a development regulation need not strictly adhere but must "generally conform"tothe comprehensive plan. Id. (quoting Barrie, 93 Wn.2d at849). A county's comprehensive plan must contain "a rural element including lands that
are not designated for urban growth." RCW 36.70A070(5)(d); see WAC 365-196-425. This rural element "may allowfor limited areas ofmore intensive rural development, including necessary publicfacilities and publicservices." RCW 36.70A070(5)(d); see WAC 365-196-425(6). Type 3 LAMIRDs allow "intensification of

... isolated small-scale

to factual findings and legal conclusions entered aftera bench trial)., 15No. 30728-0-111 Kittitas County v. Kittitas County ConselVation Coal. businesses that are not principally designed to serve the existing and projected rural population and nonresidential uses, butdo providejob opportunities for rural residents." RCW 36.70A.070(5)(d)(iii); seeWAC 365-196-425(6)(c)(iii). Underthese area types, "Rural counties mayallowthe expansion ofsmall-scale businesses [or]

... newsmallscale businessesto utilize a site previously occupied by an existing business." RCW 36.70A.070(5)(d)(iii); seeWAC 365-196-425(6)(c)(iii)(A). But such small-scale businesses must "conform[] tothe rural character ofthe area," RCW 36.70A.070(5)(d)(iii); seeWAC 365-196-425(6)(c){iii)(A). The County's rural element allows forType 3 LAMIRDs, calling them "Rural Employment Center[s]-Intensification ofdevelopment on lots containing isolated nonresidential uses or newdevelopmentofisolated small-scale businesses that are not principally designed to serve the rural area, but do providejob opportunities for rural residents." KIITITAS COUNTY COMPREHENSIVE PLAN (KCCP) 8.5.8. These area types must meetcertain standards: a) Intensification ofdevelopment on lots containing isolated nonresidential uses or newdevelopment of isolated small scale businesses is permitted; b) Businesses should providejob opportunities for rural residents, but do not need to be principally designed to serve local residents; c) Small scale employment uses should generally be appropriate in a rural community, such as (but not limited to) independent contracting services, incubatorfacilities, home-based industries, and services which supportagriculture; and d) Development should conform to the rural character ofthe surrounding area. KCCP Goal, Policy, & Objective 8.78. Once the County fixes an area's boundaries, it may notexpand them unless doing so is "otherwise consistentwith the requirements of
16No. 30728-0-111 Kittitas Countyv. Kittitas County Conservation Coal. the GMA." KCCP Goal, Policy, 

### &Objective 8.69. Such expansion, where permitted, may include "undeveloped land

...for limited infill, development or redevelopment when consistentwith rural provisions ofthe [GMA]." KeCp Goal, Policy, 

### & Objective 8.70. However, "uses that require urban level ofservices should not be allowed." KCCP Goal, Policy, 

### &Objective 8.73. Urban services are "public services and public facilities at an intensity historically and typically provided in cities, specifically including storm and sanitary sewersystems." RCW 36.70A.030(18); WAC 365-196-200(19). We begin our analysis with amendment 10-12. First, Ellison argues the hearings board erred in deciding thetravel centerwould not be "isolated" as required by RCW 36.70A.070(5)(d)(iii) and KCCP 8.5.8(a). The hearings board defined "isolated" according to Whitakerv. GrantCounty, No. 99-1-0019, at 13-14 (E. Wash. Growth Mgmt. Hr'gs Bd. Nov. 1,2004), which decided proposed developments on contiguous Type 3 LAMIRDs would not be isolated butwould permit low-density sprawl. Thus, the hearings board concluded the proposed development must stand apartfrom other similar uses. Giving this GMA interpretation substantial weight, we reject Ellison's argument because the undisputed facts show a fuel station and retail store exist on the Type 3 LAMIRD across the highwayfrom the proposed development. This is a sufficientquantity ofevidenceto persuade a fair-minded person the travel centerwould not be isolated from othersimilar uses. In reaching this decision, the hearings board correctly interpreted and applied the law upon thorough reasoning with due consideration forthe facts.

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No. 30728-0-111 Kittitas Countyv. Kittitas CountyConservation Coal. Second, Ellison argues the hearings board erred in deciding the travel center would not be "small scale" as required by RCW36.70A070(5)(d)(iii) and KCCP 8.5.8(a) and'(c). The hearings board defined "small scale" according to state and local standardsforType 3 LAMIRDs, which require proposed developments to be appropriate for and visually compatible with a rural community. Thus, the hearings board concluded the proposed development must be small relative to surrounding uses. Giving this GMA interpretation substantial weight, we reject Ellison's argument because the undisputed facts detailed below supportthe hearings board's decision. The facts showwhile surrounding uses are mainly agricultural, the proposed developmentwould cover over29 acres, comprising a 4,000 squarefoot fuel station, a 10,000 square foot retail store, a 5,000 square foot retail store, a 6,000 square foot restaurant, a 24,000 squarefoot hotel with 50 units, a 5,000 square foot recreational vehicle park with 45 spaces, and parking lotswith spaces for hundreds ofcars and trucks. These uses would operate 24 hours a day, employ upto 140 people, and generate $10.9 million annually. Additionally, the proposed developmentwould require significant infrastructure, including roads from the highway and a six-acre septic or sewer reserve areathe hearings board concluded was an urban service. This is a sufficient quantity ofevidence to persuade afair-minded person the travel centerwould not be small in scale relative to surrounding uses. In reaching this decision, the hearings board again correctly interpreted and applied the law upon thorough reasoning with due consideration for thefacts.

18No. 30728-0-111 Kittitas County v. Kittitas County Conservation Coal. Third, Ellison argues the travel centerwould conform to the surrounding area's rural character as required by RCW 36.70A.070(5)(d)(iii) and KCCP 8.5.8(d). Butthe hearings board never reached this issue, instead noting no evidence showed the county commissioners ever considered it. Wewill not exercise discretion the legislature placed in the hearings board. See RCW34.05.574(1); RCW 36.70A.280(1)(a); former RCW 36.70A.290(2). To summarize, the hearings board correctly decided the travel centerwould not be isolated or small in scale. Therefore, we conclude the hearings board did not err in deciding amendment 10-12 is noncompliantwith the GMA and inconsistentwith the comprehensive plan. We do not reach Ellison's remaining arguments on whetherthe expansion properly utilized aformertruck stop site not included in the original Type 3 LAMIRD and whetherthe expansion fixed more logical outer boundaries than the original Type 3 LAMIRD. Weturn nowto amendment 10-13. On December22,2009, the County designated an Agriculture Study Overlay applicable to "[p]roperties containing prime farmland soils,

... and located in the formerThorp Urban Growth Node Boundaries and outside ofLAMIRD boundaries." AR at 506. Amendment 10-13 changed the property's comprehensive plan category from Rural to Commercial and changed its zone designation from Agriculture 20 to Commercial Highway. First, Ellison argues the hearings board erred in deciding an inconsistency exists because the record does not reveal the County's intent in designating the property as an Agriculture Study Overlay. Butthe undisputed facts show the County did so 19No. 30728-0-111 Kittitas Countyv. Kittitas County Conservation Coal. because it intended to preclude commercial development until itdetermined whetherthe property qualified asAgricultural Lands of Long Term Commercial Significance: "Outside ofthe LAMIRD boundaries, some parcels have been identified as meeting some though notall designation criteria for lands oflong-term commercial significance for agriculture. An overlay zone is proposed to limitthe potential for lot creation and some potentially incompatible land uses until the County completes a review ofthe needs ofindustry in 2010"

.... "The County intends to studythe needs and nature ofthe

... agriculture industries and the designation criteria in conjunction with its consideration ofits critical areas regulations update in 2010. In the interim, an agriculture

... study overlay zone were [sic] considered in these areas; and standards proposed in Kittitas County Code Title 17 that would be applied to the overlay zones." AR at601 (second and third omissions in original) (quoting Kittitas County Ordinance 2009-025 (Dec. 22, 2009) (Findings of Fact 128, 171». The County apparently had not madethis determination atthe time ofthe rezone. Second, Ellison arguesthe hearings board erred in deciding the property might have qualified asAgricultural Lands of Long Term Commercial Significance because doing so improperly entertained a collateral attack on the County's prior designation. Butthe hearings board merely concluded the rezone is inconsistentwith the Agriculture Study Overlay's interim use limitations, which remained in effect atthe time ofthe
rezone. Indeed, the undisputed facts showthe Commercial Highwayzone designation permitted commercial developmentthatthe Agriculture Study Overlay prohibited. This is a sufficient quantity ofevidence to persuade afair-minded person amendment 10­ 13's rezone is inconsistentwith the comprehensive plan's prior designation ofan Agriculture Study Overlay. In reaching this decision, the hearings board again correctly interpreted and applied the law upon thorough reasoning with due consideration for the 20No. 30728-0-111 Kittitas County v. Kittitas CountyConservation Coal. facts. Therefore, we conclude the hearings board did noterr in deciding amendment 10-13 is inconsistentwith the comprehensive plan. In conclusion, the hearings board's decision is supported by substantial evidence in light ofthewhole record, does noterroneously interpretor applythe law, and is not arbitrary or capricious. See RCW 34.0S.S70(3)(d)-{e), 

### (i). We hold the hearings board did not err by invalidating amendments 10-12 and 10-13 on grounds the County did not comply with the GMA in adopting them. Accordingly, we reverse the superiorcourt. We do not reach Futurewise's remaining contentions on whetherthe superior court erred in dissolving ratherthan remanding the hearings board's decision. Reversed.

Brown, 

### J. WE CONCUR:

Kulik, J.

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