Opinion
No. 57432-9-I.
June 4, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-2-08396-4, George T. Mattson, J., entered December 15, 2005.
Lakeland Estates, LLC, appeals the dismissal of its Land Use Petition Act (LUPA) action by the King County Superior Court. The LUPA petition alleged King County had wrongfully denied Lakeland's application for approval of a Binding Site Plan (BSP) for the Lakeland Estates mobile home park. The park was created in 1979 as a single-lot, Planned Unit Development (PUD), with 13 leaseable mobile home lots within it. Lakeland's proposed BSP would allow the mobile home park to be segregated into 13 separately saleable lots. Due to the restrictions set forth in the 1979 PUD and limitations on the use of the BSP process, we affirm the Superior Court's denial of Lakeland Estates' LUPA petition.
FACTS
The Lakeland mobile home community was authorized as a PUD on January 5, 1979. King County PUD Ordinance No. 4021, amending King County Zoning Code, Resolution No. 25789, as amended, by adopting the planned unit development. It allowed 13 dwelling units in the form of mobile homes on one 13.88 acre lot. The "Open Space Notes" on PUD 236-76 impose limitations on the property, including the text, "[i]ndividual lots in Lakeland Estates are not to be sold. All property within Lakeland Estates, including the Common Open Space, shall be retained under the single ownership of the lessor or his successor. The Common Open Space is so dedicated to Lakeland Estates for the life of the [PUD]." (emphasis added). The "General Notes" on PUD 236-76 state that the "[l]ots will be leased, rather than sold, to retain all acreage under single ownership." (emphasis added). In accordance with these requirements, the mobile home spaces within Lakeland Estates have been separately leased or rented to tenants for over 20 years.
Some tenants expressed an interest in buying the spaces on which their mobile home was located. However, as acknowledged by Lakeland in its BSP discussion paper, "the individual parcels were not legally segregated under the PUD entity and therefore were not available for sale as legal lots."
Seeking "parcel segregation via BSP," Lakeland filed a BSP application with the King County Department of Development and Environmental Services (DDES) on January 6, 2003. Once the BSP was approved, Lakeland planned to form a condominium entity to govern the entire property. King County DDES began commenting on the BSP application in May 2003. On June 2, 2003, DDES announced that it would not allow segregation of the property for sale of individual lots. Instead, it recommended parcel allocation via an "air-space" condominium. Lakeland rejected this option. Following this, the BSP processing was suspended until King County DDES' February 16, 2005 decision letter, which denied Lakeland's BSP application. DDES noted that the terms of PUD 236-76 did not allow lots to be sold, and required that all acreage be retained under single ownership. DDES did recommend that if Lakeland wished "to sell individual `units,' the filing of a condominium application appear[ed] to be a viable option."
In a discussion paper, Lakeland notes that tenants had "expressed a desire to purchase the spaces they occupy." Lakeland then outlines alternative ways to "convey property ownership to the mobile home" owners. It rejected parcel allocation via an "air-space" condominium, parcel allocation via ownership shares in a joint cooperative entity, and selected "parcel segregation" via BSP. However, Lakeland's BSP application did not contain a copy of the original conditions of approval, environmental checklist, or legible approved map page of the PUD, as required by King County Code 20.20.040 and 20.20.44. Lakeland correctly points out that because DDES did not provide written notice of an incomplete application within 28 days, it was deemed complete. KCC 20.20.050(B).
Lakeland petitioned for superior court review of the denial of its BSP application, under the LUPA, RCW 36.70C. The superior court denied and dismissed this appeal on the basis that PUD 236-76 required retaining all acreage under single ownership, and called for leased lots. The court concluded that because the PUD did not create any "vested" right to ownership of the mobile home spaces by multiple owners, the "vested rights" theory did not apply. Noting that "the PUD is what it is[,]" the court concluded that in order to modify the PUD, Lakeland would have to apply for a Conditional Use Permit Page 4 (CUP) rather than a BSP. (citing the DDES letter referring to K.C.C. 21A.42.180(C) and 21A.32.065(C)(1)).
ANALYSIS
I. Standard of Review
Judicial review of land use decisions is governed by LUPA. RCW 36.70C. This Court is to stand in the shoes of the superior court and review the hearing examiner's action de novo on the basis of the administrative record. Girton v. City of Seattle, 97 Wn. App. 360, 363, 983 P.2d 1135 (1999). We review alleged errors of law de novo. Id. Under RCW 36.70C.130, an appellate court may grant relief from a land use decision if the petitioner carries its burden of establishing at least one of the following six standards:
(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.Benchmark Land Co. v. City of Battle Ground, 146 Wn.2d 685, 693-94, 49 P.3d 860 (2002) (citing RCW 36.70C.130(1)). Lastly, "[I]t is a fundamental principle that this Court will not reach a constitutional issue if it can decide a case on other than constitutional grounds."Benchmark Land Co., 146 Wn.2d at 694 (citingSenear v. Daily Journal-Am., 97 Wn.2d 148, 152, 641 P.2d 1180 (1982)).
II. Regulatory Framework
Counties implement zoning regulations under the express legislative authority of chapter 36.70 RCW. The division of land into individual lots or parcels is governed by RCW 58.17.010-.920. Zoning regulations restrict the use of land by implementing the county's land-use plan. A PUD provides flexibility from fixed zones. WA Prac. Real Estate Law § 4.19; see also Estate of Friedman v. Pierce County, 112 Wn.2d 68, 81-82, 768 P.2d 462 (1989). Creation of a PUD requires an amendment to the zoning ordinance and has been held to be an act of rezoning. Lutz v. Longview, 83 Wn.2d 566, 568-69, 520 P.2d 1374 (1974). However, a PUD does not repeal the underlying zoning. Rather it creates an overlay of uses and restrictions that "floats" over the existing zoning. "`[A PUD] permits the developer of a qualifying site to bedispensed from otherwise applicable zoning regulations in exchange for submitting to detailed, tailored regulation. The developer gains choice; the public gains precise control.'"Estate of Friedman, 112 Wn.2d at 82 (emphasis added) (quoting Settle, Washington Land Use and Environmental Law and Practice § 2.12(c) at 68 (1983).
Counties, governed by RCW 36.70, are required to have a formal comprehensive plan before they may zone. WA Prac. Real Estate Law, § 4.2. However, zoning and planning are distinct. "Planning is in the background; zoning implements the city's or the county's land-use plans." Id.; see also Toandos Peninsula Ass'n v. Jefferson County, 32 Wn. App. 473, 648 P.2d 448 (1982) (where county had comprehensive plan but no zoning, land was unrestricted).
King County repealed its PUD ordinance since 1979. However, PUDs then in existence remain valid. A final, approved PUD plan is required to have explanatory text on its face, specifying uses permitted on the site and other necessary restrictions.See former K.C.C. 21.56.070(C). After approval by King County, this text constitutes "a contractual limitation to those specific uses and development requirements." Former K.C.C. 21.56.070(C). In applying for a new PUD or an amendment to a PUD, "only those uses permitted in the underlying zone are permitted in the PUD." Citizens for Mount Vernon v. City of Mount Vernon, 133 Wn.2d 861, 874, 947 P.2d 1208 (1997).
In order to modify a PUD, a developer must abide by the land division procedures set forth in K.C.C. 21A.42.180. "[S]ubstantial changes in the characteristics of the proposed PUD have been held to be an act of rezoning, requiring a second compliance with rezoning procedures, even though the PUD was previously affixed." Lutz, 83 Wn.2d at 569, (citingMillbrae Ass'n for Residential Survival v. Millbrae, 69 Cal. Rptr. 251 (1968)).
21A.42.180 Modifications and expansions — use or development authorized by an existing planned unit development approval. Modifications and expansions of uses or developments authorized by an existing planned unit development approval shall be subject to the following provisions. . . .
C. Modifications beyond those permitted in subsection B and all expansions, shall be subject to the approval of a conditional use permit. K.C.C. § 21A.42.180 (emphasis added).
Chapter 58.17.010-.920 RCW governs the division of land into individual lots or parcels, and provides two methods for subdividing land into individual lots. One such method is the traditional subdivision process under RCW 58.17.033, and is implemented by county codes. The other method, known as a Page 7 BSP application, is an alternative to the traditional process.See RCW 58.17.035. RCW 58.17.035 provides, in relevant part:
A city, town, or county may adopt by ordinance procedures for the divisions of land by use of a binding site plan as an alternative to the procedures required by this chapter. The ordinance shall be limited and only apply to one or more of the following: (1) The use of a binding site plan to divisions for sale or lease of commercially or industrially zoned property as provided in RCW 58.17.040(4); (2) divisions of property for lease as provided for in RCW 58.17.040(5); and (3) divisions of property as provided for in RCW 58.17.040(7).
Subsection (3), by virtue of its reference to RCW 58.17.040(7), is the only portion at issue here. RCW 58.17.040(7) provides that the traditional subdivision processes of chapter 58.17 shall not apply to:
(7) Divisions of land into lots or tracts if: (a) Such division is the result of subjecting a portion of a parcel or tract of land to either chapter 64.32 or 64.34 RCW [Washington Condominium Act] subsequent to the recording of a binding site plan for all such land.
In other words, in order to create a condominium entity, a landowner can bypass the traditional subdivision process byfirst applying for a BSP and then applying for a condominium entity. See also KCC § 19A.20.020(A).
RCW 58.17.035 also provides that "[l]ots, parcels, or tracts created through the binding site plan procedure shall be legal lots of record. The number of lots, tracts, parcels, sites, or divisions shall not exceed the number of lots allowed by the local zoning ordinances." RCW 58.17.035 (emphasis added). See also Strauss v. City of Sedro-Woolley, 88 Wn. App. 376, 381-382, 944 P.2d 1088 (1997). A binding site plan for a condominium must be based on a recorded final PUD.See K.C.C. § 19A.20.020.
III. Lakeland's Binding Site Plan Application
Lakeland believes that because PUD 236-76 created 13 "lots," it can use the BSP application process to segregate the mobile home park into 13 legal parcels. King County argues that the language on PUD 236-76 is clear: lots are to be leased, not sold, in order to "retain all acreage under single ownership." PUD 236-76. King County also argues that the property is subject to the more general zoning requirements of rural King County, which only allow one dwelling unit per five acres. King County Ordinance 11653 (Feb. 2, 1995); King County Ordinance 12823 (August 18, 1997).
Lakeland argues that PUD 236-76 created 13 "lots" because 1) each mobile home space was assigned an individual lot number; 2) notes on the PUD refer to each space as "lots;" and 3) King County issues street addresses and building and septic permits for each "lot."
PUD 236-76 does require Lakeland to adhere to the detailed regulations therein, including the mandate that individual spaces must be leased rather than sold, in order to retain all acreage under single ownership. Lakeland cannot escape the contractual limitations set into place by PUD 236-76, in which ownership is key. PUD 236-76 only created one legal lot with 13 leaseable, not saleable, spaces which were to be retained under unitary, single ownership. PUD 236-76. While a BSP is an alternative to traditional subdivision process the resulting divisions may "not exceed the number of lots allowed by the local zoning ordinances." RCW 58.17.035. Therefore, because the zoning underlying the PUD is one lot per five acres, the BSP process cannot yield 13 lots. The hearing examiner's decision and the trial court's dismissal of Lakeland's LUPA appeal are affirmed.
IV. Constitutional Rights
Lakeland argues that constitutional or vested rights were violated as a result of the denial of the BSP. "The vested rights doctrine establishes that land use applications vest on the date of submission and entitle the developer to divide and develop the land in accordance with the statutes and ordinances in effect on that date." Quadrant Corp. v. Hearings Bd., 154 Wn.2d 224, 240, 110 P.3d 1132 (2005). When a PUD proposal is coupled with a preliminary plat proposal, "the PUD ordinance is one of the laws in effect at the time of application to which the vested rights doctrine applies."Association of Rural Residents v. Kitsap County, 141 Wn.2d 185, 195, 4 P.3d 115 (2000).
Here, Lakeland used the ordinances in effect in 1979 to create PUD 236-76. Lakeland's vested rights are those granted by PUD 236-76, which entitled them to one lot, with 13 leaseable spaces. PUD 236-76 did not vest them with 13 alienable lots. The decision of DDES did not violate their vested rights. We find no constitutional violation.
V. Arbitrary and Capricious Action
Lastly, Lakeland contends that King County's actions were arbitrary and capricious. However, as noted by Lakeland itself, "[t]hese issues . . . have not previously surfaced in legal briefs by either party in the dispute[.]" As a general rule, arguments not made at the trial court level need not be considered on appeal. See, e.g. Sneed v. Barna, 80 Wn. App. 843, 912 P.2d 1035 (1996); see also Chan v. Chang, 2006 Wn. App. LEXIS 819, 9-10 (2006). Because Lakeland brings its arbitrary and capricious accusations for the first time on appeal, we do not consider these claims.
Cox, J., concur.
I concur in the result the majority reaches but write separately because the references to PUD's as rezones are both unnecessary to the result and incorrect under the applicable ordinances in effect in 1979 when King County approved the PUD at issue here.
The only issue in this case is whether Lakeland can essentially convert its 1979 PUD approving 13 mobile home "lots" for lease into a binding site plan that allows it to sell 13 separate lots. The short, and only necessary, answer is that the conditions on the PUD prohibit selling the lots and, once the PUD use as 13 leased lots is abandoned, the underlying zoning, here one unit per five acres, applies. Majority at 8. Lakeland's property is only 13.88 acres, so it cannot create 13 lots under the existing zoning except by using the device the County suggested, an air space condominium.
This does not require us to discuss the nature of PUD's at all. The majority nonetheless states that a PUD "requires an amendment to the zoning ordinance" and that "`[s]ubstantial changes in the characteristics of the proposed PUD have been held to be an act of rezoning. . . .'" In 1979, a PUD was not a rezone in King County. PUD's were governed by KCC chapter 21.56. KCC 21.56.010 provides that
Majority at 5 (citing Lutz v. City of Longview, 83 Wn.2d 566, 568-69, 520 P.2d 1374 (1974)).
Majority at 6 (quoting Lutz, 83 Wn.2d at 569, which in turn relied on a California case, Millbrae Ass'n for Residential Survival v. City of Millbrae, 292 Cal. App. 2d 222, 69 Cal. Rptr. 251 (1968)).
[w]herein the zoning map establishes only zone boundaries and the text of this title establishes the permitted use of land in the various zones and the conditions applicable to such use, and wherein all of the provisions, conditions and requirements set forth in this title are in general designed to apply to individual lots and minimum area parcels, a planned unit development has the following purposes:
. . . .
C. To permit flexibility that will encourage a more creative approach in the development of land, and will result in a more efficient, aesthetic and desirable use of open space, while at the same time, harmonizing with adjoining development and maintaining population and area coverage which are consistent with the transportation facilities and utilities available, and with the public health and safety standards of the county, and which do not adversely impact neighboring development;
D. To permit flexibility in design, placement of buildings, use of open spaces, bicycle and pedestrian circulation facilities, off-street parking areas, and street alignment; and to best utilize the potentials of sites characterized by special features of geography, topography, size, or shape;
KCC 21.56.030 establishes procedures for approving PUD's and requires the Hearing Examiner to "determine that the plans comply with . . . area zoning. . . ." KCC 21.56.030(A). If approved, by the County Council, the final PUD "shall be made a part of zoning map. . . ." KCC 21.56.030(H). Nowhere does the Code require an application for or approval of a rezone. In fact, section 21.56.050(A) differentiates between PUD's and rezones when it provides that a PUD "may be considered simultaneously with an application for . . . [a] reclassification. . . ." KCC 21.56.080 allows PUD's in many different underlying zones without any change in the zoning.
In other words, in King County when Lakeland's PUD was approved, PUD's coexisted with whatever the underlying zoning category was. This is consistent with their purpose of allowing flexibility beyond that which could be reflected on a zoning map. PUD's have their own chapter in the King County Code and separate procedures which may, if necessary, be combined with a rezone. The quoted language from Lutz does not apply in this case. It simply confuses the issue unnecessarily, and I would omit it.