Washington Court of Appeals Reports
PESTE v. MASON COUNTY, 133 Wn. App. 456 (2006) 136 P.3d
140 LILLIAN M. PESTE, Individually and as Trustee, ET AL.,
Appellants, v. MASON COUNTY, Respondent. No. 33437-2-II.
The Court of Appeals of Washington, Division Two. June 14,
2006. Page 457
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Nature of Action: Action for judicial review of a county’s
denial of a rezone request.
Superior Court: The Superior Court for Mason County, No.
04-2-00373-7, Russell W. Hartman, J., on June 15, 2005,
entered a judgment in favor of the county.
Court of Appeals: Holding that the record did not support
any of the plaintiffs’ challenges to the validity of the
laws under which the rezone request was denied, the court
affirms the judgment.
Elmer R. Fristoe and Don W. Taylor, for appellants.
Gary P. Burleson, Prosecuting Attorney, and T.J. Martin,
Deputy, for respondent. Page 462
VAN DEREN, J.
1 Lillian M. Peste, Sharon Johnston, and Bank of
America, as trustees of the Fred G. Peste Trust; and
Lillian M. Peste, individually (collectively Peste), appeal
Mason County’s (County) denial of a rezone request. Peste
asserts that (1) the County’s comprehensive plan and
development regulations are void because the County adopted
them without complying with statutory notice and public
participation procedures; (2) the County’s comprehensive
plan and development regulations violate Peste’s
substantive due process rights; (3) the County’s
comprehensive plan and development regulations constitute a
regulatory taking of estate property; and (4) substantial
evidence does not support the Mason County Board of
Commissioners’ (Board) findings. We affirm.
BACKGROUND
A. PROCEDURAL FACTS
2 In 1997, Peste filed a plat application for land
located in the County. The application is not part of the
record on appeal. It is not clear from the record what
happened to the plat application. Peste states that the
County never acted on it. The record does not contain a
description of the plat application boundaries, but at oral
argument before us, it was described as some portion of
“Section 21” owned by Peste.[fn1]
3 In 2001, Peste requested that the Mason County
Planning Department (Planning Department) and the Page
463 Board rezone two parcels of property to allow for an
increased residential density.[fn2] On March 2 and 9, 2004,
the Board held public hearings to determine whether to
grant Peste’s rezone request. After testimony by interested
parties, the Board denied the request. Peste timely
appealed the Board’s decision to the Mason County Superior
Court under the Washington Land Use Petition Act
(LUPA).[fn3] The trial court affirmed the Board’s decision.
B. ADOPTION OF MASON COUNTY’S COMPREHENSIVE AND
DEVELOPMENT REGULATIONS
4 The legislature enacted the Growth Management Act
(GMA), RCW 36.70A.010-.902, to minimize the threats
unplanned growth poses to the environment, economic
development, and public welfare. RCW 36.70A.010. The GMA’s
goals include reducing sprawl, encouraging development in
areas already characterized by urban development,
preserving open spaces and the environment, and encouraging
availability of affordable housing. See RCW 36.70A.020.
5 The GMA requires that communities adopt
comprehensive land use plans (CPs) and development
regulations (DRs) in accordance with the GMA to implement
the statute’s broad goals. RCW 36.70A.040. Although the GMA
affords local governments wide latitude and discretion in
creating their CPs and DRs according to local needs, growth
patterns, and resources, they must still comply with
certain requirements set forth in the GMA. Diehl v. Mason
County, 94 Wn. App. 645, 650, 972 P.2d 543 (1999).
6 After a long process of public hearings and
meetings between municipalities and local groups, the
County adopted its CP and DRs in April 1996. Diehl, 94 Wn.
App. at 650. Page 464 Following a successful challenge to
the CP’s adequacy before the Western Washington Growth
Management Hearings Board (Growth Board) in December 1996,
the County undertook to amend its CP and accompanying DRs
to bring them into compliance with the GMA. The Growth
Board issued a series of compliance orders over the next
seven years determining which amendments brought the
County’s CP and DRs closer to compliance with the GMA.
7 In compliance orders dated December 15, 2000, and
March 1, 2001, the Growth Board concluded that the County
CP and DRs adequately established development densities for
the county’s rural areas. Finally, on November 12, 2003,
the Growth Board determined that the County’s CP and DRs
were in substantial compliance with the GMA.
C. PESTE’S REZONE REQUEST
8 The Section 21 property consists of two adjacent
parcels totaling 556.6 acres. The Section 21 property was
designated Rural Residential 5 (RR 5) in the County’s
original April 1996 CP. But following numerous amendments
that brought the County’s CPs and DRs into compliance with
the GMA, Section 21 is now located in a Mason County rural
area with a designated residential density of one dwelling
unit per 20 acres.[fn4] Rural Residential 20 (RR 20)
properties surround the Section 21 property on the east,
west, and south.[fn5] RR 5 properties neighbor it to the
north and southeast.[fn6]
9 On May 9, 2001, Peste requested that the
Planning Department and the Board rezone the Section 21
property from a RR 20 designation to a RR 5 designation. On
April 12, 2002, the Mason County Department of Community
Page 465 Development (MCDCD) informed Peste that it had not
yet processed Peste’s request because the County was first
addressing its GMA noncompliance issues.
10 The Mason County Planning Advisory Commission
(Commission) held public hearings to consider Peste’s
rezone requests on October 20, 2003, and December 15, 2003.
Against MCDCD’s recommendation that Peste’s request be
denied, the Commission recommended that the Board approve a
compromise to rezone the Section 21 property from an RR 20
designation to a Rural Residential 10[fn7] (RR 10)
designation.
11 The Board held public hearings to determine
whether to grant Peste’s rezone request on March 2 and 9,
2004. The Board concurred with the MCDCD’s recommendation,
rejected the Commission’s proposed compromise, and denied
Peste’s rezone request. The Board entered findings of fact
regarding its decision, explaining that Peste’s rezone
request did not conform with the County’s CP. The Board
specifically concluded that Peste’s proposal did not meet
any of the County’s “rezone criteria” outlined in DR
1.05.080.
12 Peste appealed the Board’s decision to the Mason
County Superior Court under LUPA, chapter 36.70C RCW. The
trial court affirmed the Board’s decision in an order and
accompanying memorandum opinion on June 9, 2005.
13 Peste appeals, arguing that (1) the County’s CP
and DRs are void because the County adopted them without
complying with statutory notice and public participation
procedures; (2) the County’s CP and DRs violate Peste’s
substantive due process rights; (3) the County’s CP and DRs
constitute a regulatory taking of the Section 21 property;
and (4) substantial evidence does not support the Board’s
findings. Page 466
ANALYSIS
A. STANDARDS OF REVIEW
14 LUPA governs judicial review of land use
decisions. RCW 36.70C.030. When reviewing a land use
decision, we stand in the same position as the superior
court and limit our review to the administrative record
before the Board. Pavlina v. City of Vancouver, 122 Wn.
App. 520, 525, 94 P.3d 366 (2004); Citizens for Responsible
& Organized Planning v. Chelan County, 105 Wn. App. 753,
758, 21 P.3d 304 (2001). We may grant relief from a land
use decision only if the party seeking relief has carried
the burden of establishing that one of the following
standards is met:
(a) The body or officer that made the land use decision
engaged in unlawful procedure or failed to follow a
prescribed process, unless the error was harmless;
(b) The land use decision is an erroneous interpretation
of the law, after allowing for such deference as is due
the construction of a law by a local jurisdiction with
expertise;
(c) The land use decision is not supported by evidence
that is substantial when viewed in light of the whole
record before the court;
(d) The land use decision is a clearly erroneous
application of the law to the facts;
(e) The land use decision is outside the authority or
jurisdiction of the body or officer making the decision;
or
(f) The land use decision violates the constitutional
rights of the party seeking relief.
RCW 36.70C.130(1)(a)-(f).
15 Standards (a), (b), (e), and (f), present
questions of law we review de novo. Cingular Wireless,
L.L.C. v. Thurston County, 131 Wn. App. 756, 768, 129 P.3d
300 (2006) (citing HJS Dev., Inc. v. Pierce County, 148
Wn.2d 451, 468, 61 P.3d 1141 (2003)). Standard (c) concerns
a factual determination that we review for substantial
evidence. Cingular Wireless, 131 Wn. App. at 768. Page 467
16 The clearly erroneous test under (d) involves
applying the law to facts. Cingular Wireless, 131 Wn. App.
at 768 (citing Citizens to Pres. Pioneer Park, L.L.C. v.
City of Mercer Island, 106 Wn. App. 461, 24 P.3d 1079
(2001)).
17 Before filing a LUPA petition, the petitioner
must first exhaust administrative remedies to the extent
required by law. Wenatchee Sportsmen Ass’n v. Chelan
County, 141 Wn.2d 169, 177, 4 P.3d 123 (2000) (citing RCW
36.70C.060).
B. NOTICE AND PUBLIC PARTICIPATION
18 Peste argues that (1) in adopting its CP and
DRs, the County did not comply with the notice and public
participation procedures of RCW 35.63.100, 36.70A.035, and
36.70A.390; and (2) consequently, because the County had to
strictly comply with those statutory procedures, the
County’s CP and DRs and all amendments are void.
19 The County responds that its CP and DRs are
presumed valid, that Peste failed to timely appeal the
adoption of the CP and DRs, that strict compliance with the
GMA’s notice procedures is not required, and that Peste’s
challenge is an unlawful collateral attack on its CP.
20 Peste’s argument fails for several reasons.
First, we are not the appropriate tribunal to review
Peste’s notice challenge. RCW 36.70C.030(1)(a)(ii) states
that LUPA does not apply to judicial review of land use
decisions that are subject to review by a quasi-judicial
body created by state law, such as the Growth Board. RCW
36.70A.280(1)(a) requires that the Growth Board hear and
determine petitions that allege a CP adopted under the GMA
is not in compliance with its requirements. Ch. 36.70A RCW.
Peste alleges that the County did not comply with the GMA’s
notice and public participation requirements. That
challenge must first have been presented to the Growth
Board, not directly to court.
21 Peste’s citation to RCW 35.63.100 is also
unpersuasive. That provision states that a county’s
planning Page 468 commission must hold at least one public
hearing and give notice of that hearing by publication in a
paper of general circulation before recommending a CP to
the Board. RCW 35.63.100. In Diehl, we noted that the
County, “[a]fter a long process of public hearings and
meetings between municipalities and local groups,” adopted
its original CP and the implementing DRs in 1996. 94 Wn.
App. at 650. Although the record here does not indicate that
the County published notice of the public hearings before
its adoption of the CP and DRs, and although the County
does not deny Peste’s assertion, our comments in Diehl
suggest that the County indeed provided effective notice of
public hearings, and establishes that it held several
public hearings.
22 Moreover, the notice and public participation
procedures in RCW 35.63.100 and those in the GMA do not
require “strict compliance.” See RCW 35.63.100; RCW
36.70A.035. Also, the GMA’s notice and public participation
procedures were not applicable to the adoption of the
County’s original CP in 1996. See RCW 36.70A.035(3).[fn8]
23 Most importantly, however, Peste did not appeal
the adoption of the County’s CP, DRs, or any subsequent
amendments made between 1996 and 2003. The GMA requires
that a party appeal any adopted CP, DR, or permanent
amendment made under it, within 60 days of publication of
the adoption of the CP, the DRs, or any amendments. RCW
36.70A.290(2). Significantly, Peste has not appealed the
adoption of the County’s CP and DRs or Page 469 any
amendment to the Growth Board.[fn9] Thus, Peste has waived
its right to argue that the County did not comply with the
GMA’s notice and public participation procedures.
C. TAKINGS AND SUBSTANTIVE DUE PROCESS
24 Peste also argues that the County’s CP and DRs
(1) constitute a regulatory taking of the Section 21
property and (2) violate its substantive due process
rights.[fn10]
1. Reviewability
25 The County responds that Peste’s failure to
raise these issues before the Board when it heard Peste’s
rezone request precludes Peste from raising them on appeal.
We disagree. RCW 36.70C.130(1)(f) expressly allows Peste to
bring its constitutional takings and substantive due
process claims in its LUPA petition. Moreover, RCW
34.05.570(3)(a) states that the reviewing court shall grant
relief from an adjudicative agency ruling if it determines
that the statute or rule on which the decision was based is
in violation of constitutional provisions either on its
face or as applied. Additionally, RAP 2.5(a) allows parties
to raise manifest errors affecting constitutional rights
for the first time on appeal. And finally, although issues
not raised Page 470 before an agency generally may not be
raised on appeal, we have inherent authority to consider
all issues necessary to reach a proper decision. Hertzke v.
Dep’t of Ret. Sys., 104 Wn. App. 920, 928, 18 P.3d 588
(2001). Thus, we reject the County’s contention that Peste
may not now raise its constitutional arguments because it
did not raise them before the Board.
26 The County also argues that Peste’s takings
claim is a claim for damages, that Peste’s LUPA petition is
not a claim for damages, and that regulatory takings do not
invalidate land use decisions. the County is correct that,
by definition, “just compensation” is the typical remedy
under takings, not invalidation of land use decisions. U.S.
CONST. amend. V, cl. 3; WASH. CONST. art. I, § 16.
But LUPA does not prohibit hearing independent claims for
damages simultaneously with claims brought in a LUPA
petition. See RCW 36.70C.030(1)(c). Thus, we address the
merits of Peste’s takings claim despite Peste’s failure to
request damages or to bring its takings claim in a separate
action. In short, Peste’s takings claim is reviewable here
whether Peste’s takings claim is considered a claim for
damages or a constitutional claim properly brought under
LUPA.
2. Constitutional Challenge to Land Use Regulations
27 Land use regulations may be challenged as
unconstitutional takings, violations of substantive due
process, or both. Guimont v. Clarke, 121 Wn.2d 586, 594,
854 P.2d 1 (1993) (Guimont I). When a party challenges a
land use regulation on both grounds, we analyze the takings
claim first. Guimont I, 121 Wn.2d at 594. Even if a land
use regulation does not amount to a taking, it must still
comply with the substantive due process requirements of the
fifth and fourteenth amendments to the United States
Constitution. Guimont v. City of Seattle, 77 Wn. App. 74,
86, 896 P.2d 70 (1995) (Guimont II) (citing Guimont I, 121
Wn.2d at 607). Page 471
a. Takings
28 Washington takings analysis requires us to
inquire at the threshold whether the challenged CP and DRs
destroy any fundamental attribute of property ownership
— specifically, the rights to possess, exclude
others, dispose of, and make some economically viable use
of the property. Guimont I, 121 Wn.2d at 600-02, 605. There
is no evidence in the record before us, and Peste does not
allege, that the County’s CP and DRs implicate any of the
first three fundamental attributes of property ownership.
More importantly, Washington case law on regulatory takings
focuses on only the fourth fundamental attribute of
property ownership — the right to make some
economically viable use of property — presumably
because the first three attributes seem far more likely to
be implicated when the state physically takes property. See
generally, Guimont I, 121 Wn.2d 586; Guimont II, 77 Wn.
App. 74; Robinson v. City of Seattle, 119 Wn.2d 34, 50, 830
P.2d 318 (1992), Presbytery of Seattle v. King County, 114
Wn.2d 320, 335, 787 P.2d 907 (1990). Thus, the only
fundamental attribute of property ownership affected here
is Peste’s right to make some economically viable use of
the Section 21 property.
29 There are two types of takings challenges to
land use regulations: facial challenges and “as applied”
challenges. See Robinson, 119 Wn.2d at 50. Facial
challenges allege that the application of a given land use
regulation to any property constitutes a taking. Robinson,
119 Wn.2d at 50. Facial challenges to land use regulations
are analyzed under the threshold inquiry of whether they
destroy a fundamental attribute of property ownership.
Guimont I, 121 Wn.2d at 605. “[A]s applied” challenges
allege that a land use regulation constitutes a taking as
applied to a specific parcel of property. Robinson, 119
Wn.2d at 50.
i. Facial Challenge
30 Under a facial challenge to land use
regulations, the landowner must demonstrate that the mere
Page 472 enactment of the regulation, and its application
to any property, constitutes a taking. Guimont I, 121 Wn.2d
at 605; Robinson, 119 Wn.2d at 50. To prove that a statute
on its face effects a taking by regulating the permissible
uses of property, the landowner must show that the
enactment of the regulation denies the owner all
economically viable use of the property. Guimont I, 121
Wn.2d at 605; Lund v. Dep’t of Ecology, 93 Wn. App. 329,
339-340, 969 P.2d 1072 (1998). “A facial challenge in which
the court determines a regulation denies all economically
viable use of property `should prove to be a relatively
rare occurrence.'” Guimont I, 121 Wn.2d at 606 (quoting
Presbytery, 114 Wn.2d at 335).
31 Here, Peste presented no evidence that the
County’s adoption of its CP and DRs deprives it of all
economically viable use of the Section 21 property. Peste
refers to the testimony of a member of Mason County’s
Planning Advisory Commission (PAC) during a PAC public
hearing held on December 15, 2003, to consider Peste’s
three rezone requests. The testimony suggested that one
parcel Peste owns was formerly suitable for Christmas tree
farming but is no longer suitable for such use. But this
testimony does not indicate that Peste’s property is
unavailable for other economically viable uses and the
testimony did not refer to the Section 21 property but to a
different parcel Peste owns that is involved in a separate
rezone request. At most, Peste has demonstrated that the
County’s CP and DRs and the Board’s land use decision
prevent it from developing one of its parcels in the exact
manner it wishes. Thus, Peste’s facial challenge to the
validity of the County’s CP and DRs fails.
ii. “As Applied” Challenge
32 If the enactment of a land use regulation does
not destroy any fundamental attributes of property
ownership, we then analyze whether the challenged
regulation goes beyond preventing a public harm to
producing a public benefit. Guimont I, 121 Wn.2d at 601. If
the regulation goes beyond preventing a public harm to
producing a benefit, or Page 473 if the regulation
infringes on (as opposed to destroying) a fundamental
attribute of property ownership, we must then decide
whether the regulation substantially advances a legitimate
state interest. Guimont II, 77 Wn. App. at 81. If so, the
regulation is subject to an “as applied” takings analysis
and we ask whether the adverse economic impact on the
affected landowner outweighs legitimate state interests.
Guimont I, 121 Wn.2d at 603-04; Guimont II, 77 Wn. App. at
81. We consider (1) the regulation’s economic impact on the
property, (2) investment-backed expectations, and (3) the
character of the government action. Guimont I, 121 Wn.2d at
604 (citing Presbytery, 114 Wn.2d at 335-36).
33 But an “as applied” regulatory takings claim is
not ripe until “the initial government decision maker has
arrived at a definite position, conclusively determining
whether the property owner was denied all reasonable
beneficial use of its property.'” Guimont II, 77 Wn. App.
at 85 (quoting Orion Corp. v. State, 109 Wn.2d 621, 632,
747 P.2d 1062 (1987)). Only after a court concludes that a
permit application for any use would be futile is an “as
applied” regulatory takings claim ripe for review. Orion
Corp., 109 Wn.2d at 632; Ventures Nw. Ltd. P’ship v. State,
81 Wn. App. 353, 368-69, 914 P.2d 1180 (1996).
34 This determination is necessary because an “as
applied” regulatory takings claim requires the court to
compare the present value of the regulated property and the
value of the property before imposition of the regulation
to determine whether the regulation has diminished the
economic uses of the land to such an extent that an
unconstitutional taking has occurred. Ventures Nw., 81 Wn.
App. at 368. The court in Presbytery explained that “[o]ur
cases uniformly reflect an insistence on knowing the nature
and extent of permitted development before adjudicating the
constitutionality of the regulations that purport to limit
it.'” 114 Wn.2d at 338 (quoting MacDonald, Sommer & Frates
v. County of Yolo, 477 U.S. 340, 351, 106 S. Ct. 2561, 91
L. Ed. 2d 285 (1986)). Page 474
35 Here, Peste’s “as applied” challenge to the
County’s CP and DRs is not yet ripe. Although the Board
reached a final determination that it would prohibit
rezoning the Section 21 property from an RR 20 designation
to an RR 5 designation, it did not determine what uses
would be permitted on the property. Moreover, Peste has not
shown that it would be futile to pursue other uses of the
Section 21 property.
b. Substantive Due Process
36 The Fourteenth Amendment prohibits states from
“depriv[ing] any person of life, liberty, or property,
without due process of law.” U.S. CONST. amend. XIV,
¶ 1. Substantive due process claims ripen
immediately because the harm occurs at the time of the
violation. In this case, it occurred when the County
adopted its CP and DRs. See Sintra, Inc. v. City of
Seattle, 119 Wn.2d 1, 21 n. 11, 829 P.2d 765 (1992). Thus,
we consider Peste’s substantive due process claim.
37 To determine whether a regulation violates due
process, we employ a three prong due process test. Guimont
I, 121 Wn.2d at 609. We must determine “`(1) whether the
regulation is aimed at achieving a legitimate public
purpose; (2) whether it uses means that are reasonably
necessary to achieve that purpose; and (3) whether the
regulation is unduly oppressive on the landowner.'” Guimont
I, 121 Wn.2d at 609 (quoting Presbytery, 114 Wn.2d at 330).
38 Here, the County adopted and amended its CP and
DRs to comply with the GMA as the Growth Board ordered, a
legitimate state purpose.[fn11] Further, the GMA mandates
that the County designate both rural areas and a variety of
densities within its boundaries. RCW 36.70A.070(5). The
County’s designation of rural areas and densities was a
means reasonably necessary to achieve the legitimate state
purpose of complying with the GMA. Page 475
39 Whether the County’s CP and DRs are unduly
oppressive to Peste is the only prong of the substantive
due process test we address. The “unduly oppressive”
inquiry lodges wide discretion in the court and implies a
balancing of the public’s interests against those of the
regulated landowner. Presbytery, 114 Wn.2d at 331. There
are several factors to consider, including “the nature of
the harm sought to be avoided; the availability and
effectiveness of less drastic protective measures; and the
economic loss suffered by the property owner.” Presbytery,
114 Wn.2d at 331.
40 Further, we should consider additional factors
from the relative perspectives of both the public and the
landowner. Presbytery, 114 Wn.2d at 331. On the public’s
side, relevant factors we consider are the seriousness of
the public problem, the extent to which the owner’s land
contributes to it, the degree to which the regulation
solves it, and the feasibility of less oppressive
solutions. Presbytery, 114 Wn.2d at 331. On the owner’s
side, we consider the amount and percentage of value lost;
the extent of remaining use; past, present, and future
uses; the temporary or permanent nature of the regulation;
the extent to which the owner should have anticipated such
regulation; and the feasibility of the owner altering
present or currently planned uses. Presbytery, 114 Wn.2d at
331.
41 Here, although the limited record makes it
difficult to conduct a thorough analysis, the County’s
designation of rural areas and densities is not unduly
oppressive. First, unplanned growth and its resulting
sprawl posed a serious problem, causing the legislature to
enact the GMA. RCW 36.70A.010. The County’s CP and DRs
embody the required implementation of the GMA and serve to
alleviate the problems unplanned growth and sprawl create.
Second, rezoning Peste’s 556 acres from an RR 20 designation
to an RR 5 designation would notably contribute to the
problem of sprawling development. The County’s designation
of rural areas and densities in compliance with the GMA
alleviates this problem. Third, the County has established
a variety of Page 476 permitted uses and apparently allows
clustered residential development in RR 20 areas,[fn12]
calling into question (1) whether a need exists for less
oppressive solutions and (2) Peste’s claimed inability to
alter its current rezone request and apparent long term
residential development plans to comply with the RR 20
designation and still have a financially viable development
plan. Finally, Peste should have anticipated the County’s
designation of the Section 21 property in light of the
parcels’ nature — it is entirely undeveloped,
surrounded mostly by other undeveloped RR 20 properties,
and is serviced by limited utility access and a single dirt
road.[fn13]
D. SUBSTANTIAL EVIDENCE
42 Peste argues that substantial evidence does not
support the Board’s findings. RCW 36.70C.130(1)(c). The
County responds that substantial evidence supports the
Board’s findings. Furthermore, Peste argues that the
Board’s findings of fact are not findings of fact, but
rather, conclusions of law. The Board’s findings of fact
six and seven seem to be mixed findings of fact and
conclusions of law. We nevertheless determine whether the
Board correctly applied the law to the facts of the case,
i.e., employing both the substantial evidence standard and
the clearly erroneous standard outlined under LUPA. RCW
36.70C.130(1)(c), (d). Page 477
43 “[S]ubstantial evidence” is evidence sufficient
to convince an unprejudiced, rational person that a finding
is true. Isla Verde Int’l Holdings, Inc. v. City of Camas,
146 Wn.2d 740, 751-52, 49 P.3d 867 (2002). This factual
review is deferential, requiring us to view all the
evidence and reasonable inferences “`in the light most
favorable to the party who prevailed in the highest forum
that exercised fact-finding authority. . . .'” Freeburg v.
City of Seattle, 71 Wn. App. 367, 371-72, 859 P.3d 610
(1993) (quoting State ex rel. Lige & Wm. B. Dickson Co. v.
County of Pierce, 65 Wn. App. 614, 618, 829 P.2d 217
(1992)).
44 The clearly erroneous test under standard (d)
involves applying the law to facts. RCW 36.70C.130(1)(d);
Cingular Wireless, 131 Wn. App. at 768. Under that test, we
determine whether we are left with a definite and firm
conviction that a mistake has been committed, even though
there is evidence to support a finding. Wenatchee Sportsmen
Ass’n, 141 Wn.2d at 176; Cingular Wireless, 131 Wn. App. at
768. Here we are also deferential to factual determinations
by the highest forum below that exercised fact finding
authority. Pioneer Park, 106 Wn. App. at 474.
45 Substantial evidence supports the Board’s
findings. The Board determined that the Section 21 property
was large (about 556 acres) and undeveloped and surrounded
by other large, undeveloped properties with identical RR 20
designations to the east, west, and south. Further, the
Board determined that the Section 21 property lacked
infrastructure and was serviced only by a power line and a
dirt road[fn14] that Peste’s attorney stated could be
“described as a road or a trail or an obstacle course, but
it leaves much to be desired.” Report of Proceedings at 12.
The Board also determined that the Section 21 property has
no water service and contains “critical areas” as defined in
the County DR 1.06. Page 478 Peste provides no argument
to refute evidence supporting these findings.
46 Similarly, the Board did not commit clear error
in applying those facts to its CP and DRs. In fact,
although Peste assigns error to the Board’s findings of
fact, it fails to state any issue related to those
assignments of error, focusing instead on its arguments
that the CP and DRs are procedurally void, denied it due
process, or constitute a taking.[fn15]
47 But these findings were the primary basis for
the Board’s decision to deny Peste’s rezone request because
the rezone did not conform with the County’s CP and DRs.
The Board’s conclusion was not an erroneous application of
the law to the specific facts presented by Peste’s rezone
request. See RCW 36.70C.130(1)(d). The County’s CP and DRs
designated rural areas and a variety of development
densities and permitted uses in those areas in compliance
with the GMA. RCW 36.70A.011, .070(5). The GMA encourages
development in established urban areas, open space
retention, the preservation of rural areas, the protection
of critical areas, and discourages sprawling low density
rural development. RCW 36.70A.011, .020. The Board
determined that rezoning the Section 21 property, an
undeveloped rural parcel, would contravene its CP, DRs, and
the GMA’s goals.
48 Given (1) the location and characteristics of
the Section 21 property, (2) the County’s seven year
amendment process to fully comply with the GMA, and (3) the
availability of other development options for the Section
21 property, the Board’s decision was reasonable and we
find no error.
49 We affirm.
QUINN-BRINTNALL, C.J., and HUNT, J., concur.
[fn1] This appeal does not deal with any land use
applications other than the 2001 rezone request by Peste.
Therefore, we do not address whether any rights exist under
the completed 1997 plat application.
[fn2] Peste asserts that three parcels are “involved in
these proceedings.” Br. of Appellant at 1. In fact, Peste
is appealing only the Board’s denial of its rezone request
for two adjacent parcels, generally considered a single
property, or the Section 21 property.
[fn3] Ch. 36.70C RCW.
[fn4] Mason County DR 1.04.240. These designations are not
codified in the Mason County Code.
[fn5] A parcel designated as RR 20 may have a maximum of
one residence per 20 acres of property. A parcel designated
as RR 5 may have a maximum of one residence per five acres
of property. See Mason County DR 1.03.032 and DR 1.04.220,
.240.
[fn6] The RR 5 areas are residential developments Sunnywoods
and Lake Limerick.
[fn7] One dwelling unit per 10 acres.
[fn8] At oral argument, Peste discussed at length its
position that the County had to give adequate, if not
actual, notice of land use actions affecting its property.
We are not unsympathetic to Peste’s argument. There is
increasing public concern about a systematic erosion of
actual, or even practically adequate, notice of actions
affecting landowners. Given actual notice of assessed value
for each parcel, it does not seem unduly burdensome for
governments to provide actual notice of governmental
actions affecting land. Whether such notice is legally
required, it appears short-sighted to decrease public
participation in such processes and the better practice in
order to create and sustain confidence in the fairness of
government is inclusion and adequate notice. Cf. Habitat
Watch v. Skagit County, 155 Wn.2d 397, 421, 120 P.3d 56
(2005) (Sanders, J., dissenting in part).
[fn9] RCW 36.70A.290(2)(b) required the County to publish
notice of its adoption of any CP, DR, or permanent
amendment to the CP or DRs. The record shows that the
County published notice of its adoption of its original CP
in 1996 and its amended version in 1998. But the record
does not indicate whether the County published notice of
any of the amendments made after 1998. Similarly, Peste
nowhere contends that the County did not publish notice of
its adoption of amendments after 1998. We will not consider
matters outside the record or issues not briefed. Weems v.
N. Franklin Sch. Dist., 109 Wn. App. 767, 778-79, 37 P.3d
354 (2002).
[fn10] In Peste’s substantive due process and takings
claims, Peste cites the United States Constitution,
amendments V and XIV and the Washington Constitution,
article I, sections 3 and 16, without applying the law to
the facts of the case. The heavy burden of establishing
that a regulation results in a constitutional violation is
on the party challenging the regulation. Lund v. Dep’t of
Ecology, 93 Wn. App. 329, 339, 969 P.2d 1072 (1998). We do
not address constitutional arguments that are not supported
by adequate briefing. Havens v. C&D Plastics, Inc., 124
Wn.2d 158, 169, 876 P.2d 435 (1994). Despite Peste’s
lackluster briefing on its constitutional claims, we
consider them because the record is sufficient here.
[fn11] We affirmed the Growth Board’s first order of
noncompliance issued in December 1996. Diehl v. Mason
County, 94 Wn. App. 645, 663, 972 P.2d 543 (1999). The
County did not appeal any of the Growth Board’s subsequent
noncompliance orders.
[fn12] Permitted uses in RR 20 areas include single family
residences; small scale commercial agriculture, including
aquaculture and woods lots; churches; local community and
recreation centers; fire stations; fish hatcheries; cell
towers; public utilities; and “[c]ottage industr[ies].”
Mason County DR 1.04.242(B). The permitted uses are
virtually the same for both RR 5 and RR 20 densities
— the residential development density is the only
difference. See Mason County DR 1.04.222. Moreover, Mason
County Board and Commission staff testimony indicates that
Peste’s residential development options under its current RR
20 designation are more opportunistic than Peste asserts
and that clustered residential development is available to
Peste on its RR 20 properties.
[fn13] With the minimal record available, it is unclear
what economic loss may have resulted to the Section 21
property from its RR 20 designation.
[fn14] The record is unclear whether this road is public or
private. There is no documentation that it is public, but
Peste argues in its brief that it has been dedicated by
common law. But Peste’s attorney and Ken Martig, a civil
engineer testifying in favor of the proposal, testified
before the Board that the road is private.
[fn15] Peste devotes one paragraph to its insufficient
evidence challenge, therein reciting Peste’s proposed
findings. Page 479