Citizens for Mount Vernon v. City of Mount Vernon

Sanders, J.

(dissenting) — Although the majority discusses several different issues, at the end of the day it reverses the Mount Vernon City Council, concluding this commercial project is inconsistent with the city’s R-2A residential zone. Had this been a commercial zone the majority would have affirmed the council by the same logic.

Assuming the majority is correct on the merits, we still must ask if the court is at liberty to decide the merits, given our prior pronouncements on the necessity to raise appropriate objections before an administrative agency to test their disposition on subsequent judicial review. Compare King County v. Boundary Review Bd., 122 Wn.2d 648, 860 P.2d 1024 (1993) (Case law "has established that prior to judicial review of an administrative action, the appropriate issues must first be raised before the agency.” Majority at 869 (citing Boundary Review Bd. at 668)). Preservation of the zoning issue for judicial review is the problem here—and it is a very great problem—because, in point of fact, the Citizen group never claimed at the administrative level this project (or the proposed PUD which embodied the project) would violate the R-2A zone. It is that simple.

Of course, there were many other objections raised but *878never this one. Able counsel for the Citizens submitted to the city council a detailed letter in opposition to the project raising several concerns,5 but not zoning. Many citizens spoke to and wrote the council in opposition to the project; however, none simply stated project approval would violate the R-2A zone. About as close as the record comes to a proper objection is the claim that the proposal would place a commercial project in a residential neighborhood; however, while this might constitute notice of a claim of potential neighborhood incompatibility, it is hardly notice of a claimed zoning violation as the specific requirements of the zoning ordinance cannot be determined by the character of the prior actual use.

In response the majority states:

The record here reflects Citizens participated in all aspects of the administrative process and raised the appropriate project approval issues. Haggen suggests the issue is R-2A zoning; Haggen is wrong. The issue is the city council’s ability to approve a commercial PUD in a residential neighborhood and on property zoned residential. The precise, legal argument is compatibility between the project and the underlying zoning.

Majority at 869-70. The subtlety of the majority’s distinction escapes me. What is the difference between stating "the issue is R-2A zoning” on the one hand and "the city council’s ability to approve a commercial PUD in a residential neighborhood and on property zoned residential” *879on the other? While the majority states Citizens "raised the appropriate project approval issues” (Majority at 870), in fact Citizens did not raise the issue in any form.

Failure to raise the R-2A zone claim before the city council is so obvious upon this record it simply does not permit denial. It was obvious to both parties, as well as the superior court judge, when judicial review was first conducted. Hence, it was then the claim of the Citizen group that specifically raising the zoning objection as a condition to judicial review should be excused as imposition of such a requirement would be too great a burden on the Citizen participants. Verbatim Report of Proceedings (RP) at 166 (Feb. 13, 1996).6 Accepting the Citizens’ argument, the superior court legally erred when it agreed the zoning objection need not be specifically raised to be preserved for judicial review. Notwithstanding its legal error the superior court correctly identified the precise issue when it asked whether there is a legal requirement "that one of the persons before that City Council had to say, listen R-2A is the wrong zone for this and these are the reasons.” RP at 163 (Feb. 13, 1996).

Responding to this question the project proponent replied, "Absolutely.” Id. He was correct that Boundary Review Bd. says just that. The majority agrees Boundary Review is applicable and even admits it stands for the proposition "[i]n order for an issue to be properly raised before an administrative agency, there must be more than simply a hint or a slight reference to the issue in the record [citing Boundary Review at 670].” Majority at 869. Yet the majority subverts in practice the very rule it articulates in theory. If the rule is not to be applied consistently, it is better we have it not at all, as the reasons asserted for its adoption and continued vitality are thereby defeated and its continued existence simply becomes an open invitation for discriminatory enforcement.

*880A review of the facts of this case demonstrate if ever the rule has a reason, the reason is served by application here.

We begin by recalling the proposed situs of the project (Haggen’s tract) originally lay in an unincorporated, commercially zoned island of Skagit County surrounded by the Mount Vernon municipality. The original county zoning on Haggen’s tract was commercial/limited industrial (C-LI) and public.7 As a matter of fact, the original development proposal was submitted at a time when the property was zoned commercial by the county.

However, the proponents saw it advantageous to encourage annexation of the tract into the Mount Vernon municipality and essentially packaged up a proposal for annexation with a proposal that the newly annexed property be appropriately zoned to accommodate the proposed development.

Given the present reality that a man’s desire to improve his property is often cast in terms of a political question, the proponent realistically attempted to persuade the appropriate governmental decision-makers to adopt those actions necessary to allow the project to proceed. And, of course, those who disagreed with that objective attempted to marshal whatever political resources at their disposal to make sure this did not happen.

Eventually all met before the city council which convened to adopt the annexation, proposed zoning, and PUD proposal as a package. It is fair to say, and I do not think it is subject to dispute, the matter had progressed this far because it was driven by the natural desire of the project proponent to have whatever legislative action taken as was necessary for project approval. Decidedly the action ultimately taken was not an academic exercise in land use planning for the coming century—rather, all had gathered together to do battle over a proposed supermar*881ket. The learned superior court judge understood the reality of this record very well upon his initial review, although he disagreed in legal consequence:

It’s abundantly clear to this Court that the decision of the City was project driven. Such appears clear. Haggen was in there with the City staff at least six months before the Comprehensive Plan was adopted. Haggen proposed the annexation, proposed the zoning, but it strikes me that the City decided it was going to put this plan in place and it did, but wrongfully as far as this Court is concerned. So the decision was molded to accommodate the Haggen project proposal

RP at 7 (Feb. 16, 1996). Given that the annexation and the proposed zone adoption were "project driven,” it is an undeniable inference that the council indeed intended to do what was necessary to lawfully approve the project. Certainly it was within their legislative prerogative to adopt a commercial zone compatible with their comprehensive plan, especially for property previously zoned commercial prior to annexation. In fact, with the same result, the council could have approved the annexation without adopting any zone at all! Moreover, the comprehensive plan, adopted in January 1995, targeted the area containing the Haggen tract as one available for a retail center, which is defined as a commercial outlet of fewer than 70,000 square feet on no more than 10 acres. Administrative Record at 1325-27. (Haggen’s proposed retail center is a 63,000-square-foot supermarket on 8.3 acres.)

However, the council adopted an R-2A zone at the same time it approved the annexation and commercial PUD, unmistakably evidencing its intention that the project be approved although, according to the majority, mistaking the law in the process. The failure of a project opponent to object on zoning grounds before final action presents an important added dimension—the failure to timely object removed the only realistic prospect that the council would cure the objection while saving the project by simply adopting a commercial zone compatible with this "project *882driven” proposal. But the objection was not made until long after it was too late for the council to take corrective action.

I do not assume the objection was intentionally withheld; however, under the majority’s scenario there is every reason why it could have been with the same result. Certainly that would have been to the profit of the opponent. Indeed, any attorney worth his salt would specifically counsel opponents to withhold such objection for fear the council would timely correct its error, thereby making the project all the less vulnerable to subsequent legal attack on judicial review. Such is precisely one of the reasons we have stated the rule as set forth in Boundary Review—to preserve an objection for judicial review it must first be asserted to the agency to allow the agency to avoid its own error.

In Boundary Review one of the issues on judicial review was whether a particular King County ordinance applied to prohibit the subject land annexation. 122 Wn.2d at 668. The interested landowner defended by asserting the theory had never been presented to the county agency, and therefore the opponents had not adequately exhausted their remedies. In response, the opponents (very much like the case before us) asserted they had generally raised the issue below, even if they had not done so specifically. But on review this court held petitioners must raise their theory with specificity below or it is lost. Id. at 669. The court noted while the opponents "presented extensive testimony before the Board” in opposition to the annexation, they "never mentioned the ordinance” and "never argued to the Board that the proposed annexations were prohibited by Ordinance 9849 . . . .” Id. at 669. Because the opponents never argued their precise theory before the agency, we refused to consider it. Id. at 669 ("[W]e decline to consider the effect of Ordinance 9849 because it was not raised before the Board.”). We explained, "This rule is more than simply a technical rule of appellate procedure; instead, it serves an important policy purpose in *883protecting the integrity of administrative decision-making.” Id. at 668. We noted it furthered important purposes of:

(1) discouraging the frequent and deliberate flouting of administrative processes; (2) protecting agency autonomy by allowing an agency the first opportunity to apply its expertise, exercise its discretion, and correct its errors; (3) aiding judicial review by promoting the development of facts during the administrative proceeding; and (4) promoting judicial economy by reducing duplication, and perhaps even obviating judicial involvement.

Id. at 669 (quoting Fertilizer Inst. v. United States Envtl. Protection Agency, 935 F.2d 1303, 1312-13 (D.C. Cir. 1991). As we held in Boundary Review: "In order for an issue to be properly raised before an administrative agency, there must be more than simply a hint or a slight reference to the issue in the record.” 122 Wn.2d at 670.

The case before us presents the prototypical example of why this rule exists. Had a proper objection been made at the administrative level, several years of judicial appellate proceedings could have been avoided as well as the no doubt substantial cost associated with this litigation, not to mention the delay and consequential damage to those whose interests were dependent upop the outcome of this review. Most importantly, the city| council could have avoided the error to begin with (sy adopting a zone ordinance compatible with this project and beyond justified legal objection. To this the majority responds:

Finally, Haggen suggests the compatibility problem between the R-2A zone and the commercial PUD could have been corrected by the city council; however, Haggen fails to explain how a zoning correction drastic enough to accommodate the commercial project would escape the vices of spot zoning.

Majority at 870.1 find this argument less than persuasive. Indeed, it is no argument at all. Whatever Mr. Haggen did or did not do has no bearing whatsoever on the adequacy of the Citizens’ presentation. It certainly was not incum*884bent upon Mr. Haggen to justify a zoning ordinance which the city council did not pass. Beyond that, the majority seems to forget the subject property was acquired through annexation and, by national majority rule, annexed land comes into the acquiring jurisdiction unzoned, thereby permitting any use not a nuisance per se. See, e.g., Ben Lomond, Inc. v. City of Idaho Falls, 92 Idaho 595, 598-99, 448 P.2d 209 (1968) (citing 101 C.J.S. Zoning § 134, at 892 and other authorities). Cf. Olympic View-Mukilteo Action Group v. City of Mukilteo, 97 Wn.2d 707, 710, 649 P.2d 116 (1982) (referencing the claim that annexed acquisitions are unzoned, the court found this land was zoned by simultaneous ordinance to retain its unincorporated zoning designation); RCW 35A. 14.330 (code city may prepare proposed zoning ordinance to be effective on annexation). The same result would even follow under the minority rule, which generally holds that newly annexed property retains its previous zoning designation, here commercial. Given (1) the lack of legal necessity to zone at all, (2) the commercial zoning prior to annexation, and (3) the Mount Vernon comprehensive plan which designated this parcel and environments suitable for a commercial zone, I suspect it would take the presence of factors not apparent from this record to persuade any court the adoption of a commercial zone for this area would be somehow invalid. In short, the whole tenor of the majority’s claim regarding what Mr. Haggen "fails to explain” and/or the "vices of spot zoning” testifies to the very weakness of its argument on the issue it will not confront: the zoning objection has not been preserved for judicial review because it was not properly raised at the administrative level.

If the majority were to overrule that line of cases which requires an administrative litigant to state an objection in order to preserve it for judicial review—having determined, for example, the requirement placed an unfair burden on litigants at the administrative level—at least that result would provide some prospective consistency and clarity. Unfortunately, however, we now have a rule of unknown dimensions, finding honor only in its breach, *885which is simply an open invitation to confusion and discriminatory enforcement. I dissent.

Guy and Madsen, JJ., concur with Sanders, J.

Reconsideration denied April 13, 1998.

On September 20, 1995, a detailed letter was hand-delivered to the city council on behalf of the Citizens group outlining five specific objections to the proposal (which I paraphrase):

1. Development regulations were not adopted to implement the comprehensive plan;
2. The comprehensive plan and map is incomplete;
3. The proposed development is not permitted under the comprehensive plan;
4. The proposal is not supported by an appropriate economic analysis;
5. The subject proposal is not vested.

Administrative R. at 1247-50.

The Citizens’ attorney argued to the court: "Its [requirement that specific objection be raised has] never been applied to citizens and when the Court looks at what citizens are required to do, we go back to Sterling v. Spokane County[, 31 Wn. App. 467, 642 P.2d 1255, review denied, 97 Wn.2d 1041 (1982)].”

Apparently some 20 to 39 acres were C-LI. Such C-LI uses include any business use and any commercial use, even specifically including on-site hazardous waste treatment. Skagit County Code 14.04.070.