Posted by: Patricia Salkin | January 22, 2018

WA Appeals Court Finds Land Owner Abandoned Its Application for a Planned Development District (PDD)/Rezone Approval

This post was authored by Matthew Loeser, Esq.

RMG Worldwide LLC (RMG) appealed two land use decisions of the Pierce County hearing examiner. In the first decision, the examiner found that RMG could not subdivide its existing golf course for residential development under the General Use zoning that was in effect in 1990, and that RMG was required to submit applications consistent with the current development regulations. In the second decision, the examiner held that RMG could not revive and proceed under a 1990 application for a Planned Development District (PDD)/Rezone approval because the PDD/Rezone application was abandoned. RMG appealed both decisions to the superior court under the Land Use Petition Act (LUPA), chapter 36.70C RCW. The superior court affirmed both decisions.

RMG first challenged the hearing examiner’s 2014 decision determining that the County did not approve the original 1990 PDD/Rezone, and that any future subdivision of the golf course parcel needed to comply with current Rural Reserve zoning requirements. RMG contended that a map excerpt from Pierce County’s 1995 zoning access showed an annotation of “UP9-90” along with “G” for General zoning provided “hard evidence” that UP9-90 rezoned the property. The record reflected, however, that the 1995 zoning map was not introduced before the hearing examiner during RMG’s appeal of the 2014 decision determining whether the property had been rezoned. Furthermore, RMG not allege that the property was subject to an overlay designation. Moreover, the court found that even assuming RMG was correct and UP9-90 rezoned the property, the property was later rezoned after the County adopted its GMA comprehensive plan to rural reserve.

Next, RMG contended that the County’s process approving the 1991 major amendment and 96 lot subdivision was effectively a decision approving the original PDD and rezoning the entire 156 acre parcel to allow for development under the old General zoning. Here, however, the record reflected that neither the staff report nor the 1991 decision referenced a PDD/Rezone application. Instead, both documents explicitly identified the proposal as an application “to establish a 96 lot single-family residential subdivision and single 8 foot high water tower.” As such, the court held there was no basis to support RMG’s assertion that the 1991 decision approved a PDD or rezoned the entire 157 acre parcel to the densities approved in the subdivision.

Lastly, RMG alleged the hearing examiner’s 2015 decision determining that RMG had abandoned the original 1990 PDD/Rezone application. The court rejected this contention, finding that the hearing examiner’s findings that RMG and the previous owners intended to abandon this application were supported by substantial evidence. Here, after the owners submitted their PDD application, they applied for an unclassified use permit for the golf course alone instead of a PDD. The owners later requested that the County “revive” the PDD application, and the County stated they would use a major amendment to the UP instead. Next, from 1991 to 2014, the owners failed to request any information or pursue any action in furtherance of the PDD application. Thus, the court determined that RMG’s overt acts attempting repeatedly to pursue a legislative reclassification of the golf course into the UGA and rezone the property for urban densities, supported the allegation that it recognized that the PDD/Rezone application had been abandoned. Since these applications for a PDD or rezone were not vested by statute, the vested rights doctrine did not apply.

The RMG Worldwide LLC v Pierce County, 2017 WL 7362378 (WA App. 12/18/2017)

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