Sunderland Family Treatment Services v. City of Pasco

Durham, C.J.

(dissenting) — The majority’s discussion of the standards a local legislative body must follow when granting or denying special use permits is altogether erroneous. Moreover, it is dicta because the Pasco City Council heeded appropriate standards when it denied Sunderland Family Treatment Services a special use permit. Of even greater concern, the majority does not exhibit any deference when examining the Pasco City Council’s fact-finding. Under RCW 7.16.120, this Court reviews a local legislative body’s fact-finding for substantial evidence. This is a highly deferential standard of review. I find, at the very least, substantial evidence in the record support*799ing the Pasco City Council’s findings of fact. The majority, in contrast, tacitly ignores the substantial evidence standard, and requires the Pasco City Council to hold yet another round of public hearings where it once again will have to review Sunderland’s application for a special use permit. The majority demonstrates complete disregard for the needless waste of time and energy the Pasco City Council must expend to comply with today’s decision. I dissent.

When a local legislative body authorizes an administrative planning board to review applications for special use permits, it must provide standards to guide the planning board’s decision. 3 Robert M. Anderson, American Law of Zoning § 21.09 at 647 (3d ed. 1986); 3 Arden H. Rathkopf et al., Law of Zoning and Planning § 41.10 (4th ed. 1994). See Rody v. Hollis, 81 Wn.2d 88; 91, 500 P.2d 97 (1972) ("It is the rule in this state that legislative power may not be delegated to an administrative agency without the prescription of reasonable standards.”). Without standards embodying a legislative directive, an administrative board would have unbridled discretion when reviewing applications for special use permits.

Of course, a legislative body may retain rather than delegate the authority to issue or deny special use permits. A legislative body acts in a quasi-judicial capacity when it directly reviews applications for special use permits. State ex rel. Standard Mining & Dev. Corp. v. Auburn, 82 Wn.2d 321, 327, 510 P.2d 647 (1973); Pentagram Corp. v. City of Seattle, 28 Wn. App. 219, 225-27, 622 P.2d 892 (1981). As a result, most courts insist that standards guide the decision. 3 Anderson, supra at 659-64.7 Where a legislative body reviews an administrative board’s decision to issue or deny a special use permit, some courts have required *800the legislative body to follow the same standards as the administrative board. See, e.g., Naples v. Central Plaza of Naples, Inc., 303 So. 2d 423 (Fla. Dist. Ct. App. 1974); Cole v. City Council of Waynesboro, 218 Va. 827, 241 S.E.2d 765 (1978).

Very few jurisdictions have found standards unnecessary. 3 Anderson, supra at 659. This state is not among them. At the outset of Standard Mining, the court acknowledged that a legislative body must follow standards when granting or denying a special use permit. Standard Mining, 82 Wn.2d at 327.8 As one commentator has noted:

While the precise constitutional or other legal basis for the standards requirement is never disclosed, the court, in Standard Mining, suggests that it is necessary to avoid unprincipled and discriminatory decisions in violation of due process and equal protection and to facilitate and confine the scope of judicial review. . . .
Although the Washington courts consistently recite the standards requirement, they seem to follow the national trend of holding general and vague standards sufficient[9] as long as adequate procedural standards govern their application.

Richard L. Settle, Washington Land Use and Environmental Law and Practice § 2.10(a), at 54 (1983) (citations omitted).

Since Standard Mining, this Court has not addressed the precise constraints on local legislative bodies when granting or denying special use permits. However, in Pentagram Corp. v. Seattle, the Court of Appeals confronted this very issue. That case dealt with the construction of a *801restaurant and meeting facility on the Seattle Space Needle. While the Seattle Building Code did not contain specific standards for the granting of special use permits, it permitted "the City Council to attach special conditions relating to the protection of life, property and public welfare.” Pentagram, 28 Wn. App. at 226. The Court of Appeals found that "[g]iven the uniqueness of structures contemplated by the ordinance, these standards are as specific as is practical.” Pentagram, 28 Wn. App. at 226.

In Pentagram, the Seattle Superintendent of Buildings provided the Seattle City Council with a proposed resolution in favor of granting Pentagram a special use permit. The City Council voted against the resolution but did not enter findings of fact supporting its decision. Pentagram, 28 Wn. App. at 221-22. Since a local legislative body acts in a quasi-judicial capacity when granting or denying special use permits, the Court of Appeals held it must enter written findings of fact to avoid violating due process. Pentagram, 28 Wn. App. at 229.

After Pentagram, the certiorari statute was amended. The amended statute directed the court to review fact-finding under a substantial evidence standard of review.10 RCW 7.16.120(5). Substantial evidence entails a relatively low threshold of proof and exists when "there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding.’ ” Hilltop Terrace Homeowner’s Ass’n v. Island County, 126 Wn.2d 22, 34, 891 P.2d 29 (1995) (quoting State v. Maxfield, 125 Wn.2d 378, 385, 886 P.2d 123 (1994)). Under the substantial evidence standard of review, the reviewing court defers to the fact-finder’s assessment of witness credibility. Id. at 34.

In the present case, the Pasco City Council has delegated to an administrative planning board, the Pasco Planning *802Commission, authority to evaluate applications for special use permits. Pasco Municipal Code (PMC) 22.80.050-.070. Applicants may appeal the Planning Commission’s decision to the City Council. PMC 22.80.080. The Pasco Municipal Code directs the Planning Commission to make findings of fact in light of specific standards. The Planning Commission must consider whether:

(1) The location and size of the proposed use, the nature and intensity of the operations involved, and the size of the site in relation to the proposed use and the location of the site in relation to the existing and future streets giving access to it, will be such that it will be in harmony with the orderly development of the district;
(2) The location and height of proposed structures and the site design will discourage the appropriate development of adjacent land and buildings or impair the value thereof;
(3) The operations in connection with the proposal will be more objectionable to nearby properties by reason of noise, fumes, vibrations, or flashing lights than would be the operation of any permitted uses.

PMC 22.80.060. These standards reflect three general concerns: neighborhood harmony, property value, and public welfare. Municipalities commonly rely on one of these standards, or a combination of all three, when evaluating applications for special use permits. See 3 Anderson, supra at 668-95.

It appears that the Planning Commission may not have considered in full detail all of the above standards when evaluating Sunderland’s application for a group home for troubled youth. See Return of Writ at 116-17. Nevertheless, the Planning Commission explicitly denied Sunder-land’s request for a special use permit because surrounding structures contained single-family residences and many elderly lived near the proposed group home. It found the group home too small for its intended use and concluded the group home would be better located in another neighborhood.

*803Sunderland appealed to the City Council. The City Council conducted a public hearing and made findings of fact. Its findings parallel the standards established to aid the Planning Commission. The City Council found that the group home would not be in harmony with the surrounding neighborhood,11 would impair property values,12 and would have a negative impact on the public welfare.13

The majority fails to apply the required deference when reviewing these findings. Instead, it simply declares that substantial evidence does not support most of the City Councirs findings. Majority at 793-95. The record plainly does not sustain this position. The only finding of fact unsupported by substantial evidence is the City Council’s contention that the group home would lower property values.14 However, the City Council heard ample testimony suggesting that the group home would disrupt the harmony of the surrounding neighborhood, and could, in fact, result in nuisance activity and public safety concerns.

Substantial evidence supports the City Council’s findings that the group home is not in keeping with the character of the neighborhood. The neighborhood surrounding the group home is family-friendly. Many of its residents have lived there for over thirty years. In addition to many elderly persons in the neighborhood, there are numerous young families with children. The neighborhood is almost entirely residential and is comprised of *804single-family residences and apartment buildings with single-family units. The residents are long-term, and the neighborhood is stable. In contrast, the group home offers short-term, temporary housing for troubled youth for the purpose of on-site extensive counseling. Thus, the group home deviates significantly from the character of the neighborhood.

Moreover, substantial evidence supports the City Council’s findings that the group home could lead to nuisance activity and have a negative impact on the public welfare. Eight foster children, who had been "physically, mentally and emotionally abused, or otherwise neglected by their natural parents and families,” would reside in the group home. Resp’t’s Br. (Sunderland) at 3-4. The youths would range from ages twelve to seventeen. The group home raised concerns for personal safety among elderly persons and parents in the neighborhood. A resident employed at a county juvenile facility testified there have been problems with youths running away from group home facilities and then burglarizing nearby homes in order to sell the stolen items for quick cash. Return of Writ at 154-55. In addition, involuntary nighttime placements at the group home would be permissible under local law, causing possible noise and other disruption in the community at late hours, thereby diminishing the residents’ quality of life.

Because the majority apparently finds the group home a worthwhile project, it wishes to substitute its judgment for that of the City Council. That is not our proper role under the substantial evidence standard of review. Three standards guided the City Council’s evaluation of Sunder-land’s request for a special use permit to operate a group home for troubled youths. Would it be in harmony with the character of the neighborhood? Would it impair property values? Would it hinder the public welfare? The City Council could have based its decision on any one of these three standards. It chose all three. Substantial evidence supported the City Council’s findings that the group home *805would disrupt the harmony of the neighborhood and would have a negative impact on the public welfare. Given these findings, and the substantial evidence supporting them, I would uphold the City Council’s decision to deny Sunder-land a special use permit.

The majority incorrectly asserts that most jurisdictions "require the municipal legislative authority to adopt specific standards” for denying a special use permit. Majority at 796 (emphasis mine). In fact, most jurisdictions require some standards and of these jurisdictions, most permit very general standards. Richard L. Settle, Washington Land Use and Environmental Law and Practice § 2.10(a), at 54 (1983).

Standard Mining held standards unnecessary when a legislative body places conditions on the issuance of a special use permit recognizing that written standards cannot address all circumstances. State ex rel. Standard Mining & Dev. Corp. v. Auburn, 82 Wn.2d 321, 330-31, 510 P.2d 647 (1973).

The majority erroneously states that "Washington . . . has adopted the minority position and does not require specific standards.” Majority at 796-97. Nevertheless, the majority’s discussion of the standards requirement is dicta because the Pasco City Council followed standards.

Following oral argument in this case, legislation was enacted "reform[ing] the process for judicial review of land use decisions made by local jurisdictions . . . .” Laws of 1995, ch. 347, § 702. The new land use petition act, however, retains the substantial evidence standard of review. Laws of 1995, ch. 347, §§ 701, 704, 714(1)(c).

Finding of fact 1 states that the location and size of the group home, along with the intensity of its proposed operations, were not harmonious with the neighborhood’s residential makeup. Finding of fact 2 states that eight youths, ages twelve to seventeen, would live on a temporary basis in the group home which would be located near single family residences comprised of many elderly persons and young children. Finding of fact 5 states that the group home would be better situated in a less residential neighborhood. Return of Writ at 186.

Finding of fact 3 states that the group home would impair the value of the adjacent properties. Return of Writ at 186.

Finding of fact 4 states that the group home would likely cause security concerns, objectionable noise, and nuisance activity. Return of Writ at 186.

There is no evidence in the record from real estate agents or other professionals that indicates the likelihood of property values diminishing as a result of the group home.