No. 46624-1-I.The Court of Appeals of Washington, Division One.
Filed: October 1, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 96-2-32502-3, Hon. Ann Schindler, April 5, 2000, Judgment or order under review.
Counsel for Appellant(s), John C. McCullough Jr., Attorney At Law, 2025 1st Ave #1130, Seattle, WA 98121-2100.
Courtney A. Kaylor, 2025 1st Ave Ste 1130, Seattle, WA 98121.
John C. McCullough Jr., Attorney At Law, 2025 1st Ave #1130, Seattle, WA 98121-2100.
Courtney A. Kaylor, 2025 1st Ave Ste 1130, Seattle, WA 98121.
Counsel for Defendant(s), Evelyn Sue A. Tanner, Kitsap Co Pros Ofc M/S 35, 614 Division St, Port Orchard, WA 98366-4681.
Counsel for Respondent(s), Michael W. Gendler, Bricklin Gendler, Ste. 1015 4th Pike Bldg, 1424 Fourth Ave., Seattle, WA 98101-2217.
Counsel for Other Parties, Scott Wheat, Attorney At Law, 15838 Sandy Hook Rd, P.O. Box 498, Suquamish, WA 98392.
FAYE C. KENNEDY, J.
The Kitsap County Board of Commissioners approved the applications of Robert and Janet Screen for a planned unit development (PUD) and an unclassified use permit (UUP) in order to develop 450 acres for use as an integrated residential area and golf course. The County found that the applications vested to the 1983 pre-Growth Management Act zoning ordinance in effect at the time of applications. The North Kitsap County Community Council and others (NKCC) appealed the approval to the King County Superior Court, which upheld the County in every respect, yet was bound by this court’s decision in Association of Rural Residents v. Kitsap Cy., 95 Wn. App. 383, 974 P.2d 863 (1999) to reverse the approval of the PUD on the ground that the PUD was not compliant with the County’s Interim Urban Growth Area (IUGA) ordinance.
After the trial court issued its decision, the Washington State Supreme Court partially reversed this court in Association of Rural Residents v. Kitsap Cy., 141 Wn.2d 185, 193, 4 P.3d 115 (2000) ruling the IUGA was not in effect when the developer in that case submitted its preliminary plat and PUD applications, thus the applications vested to the zoning ordinances in effect on the date of application and the IUGA did not apply to the developer’s application. Based on Rural Residents and the County’s 1995 Interim Zoning Ordinance, which exempted PUDs in process from compliance with the interim ordinance, we reverse the trial court’s reversal of the County’s approval.
NKCC cross-appeals, arguing that (1) the Superior Court’s reversal of the PUD approval must be upheld, (2) the applications did not vest to the 1983 Ordinance because the Screens never submitted a subdivision plat application and their original applications did not specifically mention their proposed restaurant and inn as accessory uses, and (3) that the County erred as a matter of law in approving the Screen’s UUP and PUD applications with respect to particular findings regarding the allocation of open space, provisions for the maintenance of the golf course and capital construction costs. Because NKCC’s cross-appeal fails, we reinstate the County’s approval of the PUD and UUP applications.
FACTS
On July 1, 1991, Robert and Janet Screen filed applications for a planned unit development (PUD) and an unclassified use permit (UUP) for a development project known as “White Horse” (hereafter referred to as “the Project”). The Project is located on a 450-acre property approximately one mile north of the community of Indianola in Kitsap County. It includes an 18-hole golf course, a clubhouse with offices, a pro shop, a restaurant, and a small bed and breakfast inn, a pool, tennis courts, 186 single family lots and 38 zero lot line lots. The golf course is designed to intertwine the residential areas. In both the PUD and UUP applications, the Screens listed as alternatives for use of the land either platting in accord with the existing Rural 2.5 zoning in which event no PUD would be necessary and the golf course would not be built, and `no action’ in which event neither the PUD nor the golf course would be built. The County considered the PUD and UUP applications to be integrated and processed them as a unit.
Kitsap County’s 1983 Zoning Ordinance was in effect when the Screens submitted their UUP and PUD applications. The ordinance defines a planned unit development as “a parcel of land planned as a single unit rather than as an aggregate of individual lots, with design flexibility beyond traditional siting regulations.” 1983 Zoning Ordinance, § 14(a). The ordinance defines unclassified uses as those that `possess such unique and special characteristics as to make undesirable their designation as permitted uses in one or more zones’. 1983 Zoning Ordinance, § 9(a). Golf courses are specifically designated as unclassified uses at § 9(b)(17) of the 1983 ordinance.
The 1983 PUD provisions allow densities on properties zoned Rural 2.5, such as the Project site, to be increased from one unit per 2.5 acres to one unit per acre if certain criteria are met. The gross density of the Project is approximately one unit per two acres.
During the course of the environmental review for the Project, the Growth Management Act (GMA) was amended to require counties to designate interim urban growth areas (lUGAs). RCW 36.70A.110(5). On October 4, 1993, the County adopted an IUGA ordinance. The County adopted the IUGA using its then-current, pre-GMA comprehensive plan and stated that the IUGA would be implemented by its zoning ordinance. On June 3, 1994, the Growth Management Hearings Board concluded that the IUGA was not in compliance with the GMA and remanded it for compliance by October 3, 1994. The County failed to meet that deadline.
Subsequently, on December 29, 1994, the County adopted a comprehensive plan under the GMA that included a final urban growth area (UGA), and an interim zoning ordinance. On October 6, 1995, the Growth Management Hearings Board invalidated these 1994 enactments. Then, on October 23, 1995, the County adopted a second interim zoning ordinance (the “1995 Interim Zoning Ordinance”). This ordinance zoned most of the Project site “Rural Wooded,” permitting one unit per 20 acres. The remainder of the site was zoned “Rural Medium,” permitting one unit per 5 acres. The 1995 Interim Zoning Ordinance specifically exempted properties with pending PUD applications from the provisions of the ordinance.
On January 8, 1996, the County adopted the 1996 IUGA. On September 18, 1996, following a public hearing, the County Hearing Examiner concluded that the Project was vested to the 1983 Zoning Ordinance and determined that the final EIS and addendum were adequate. The Hearing Examiner recommended approval of the UUP and PUD applications subject to specific conditions. The Hearing Examiner specifically concluded that the Project was vested in July 1991, that being when the applications were filed. At that time the 1983 Zoning Ordinance was in effect.
The North Kitsap Community Council other parties (NKCC) appealed the Hearing Examiner’s determination of final EIS and addendum adequacy and asserted that the Project was not vested. The Screens also appealed certain conditions imposed by the Hearing Examiner.
On December 9, 1996, the County Board of Commissioners upheld the determination of adequacy and approved the PUD and UUP subject to 25 separate conditions. The Commissioners also affirmed that the Project was vested to the zoning laws in effect in 1991 when the Project applications were submitted. The Commissioners further concluded that because the Project was vested to the laws and regulations in effect in 1991, the IUGA ordinance adopted in 1993 did not apply to the Project.
On December 30, 1996, NKCC brought a Land Use Petition Act (LUPA) action challenging the approval of the Project. The Suquamish Tribe and Martin Hayes (collectively, “Suquamish Tribe”) also filed a LUPA action and the two cases were consolidated. Subsequently, NKCC’s action was dismissed for lack of standing and the Suquamish Tribe’s action was dismissed for lack of standing and failure to name an indispensable party. The dismissal of NKCC’s suit was reversed on appeal.
On remand, the King County Superior Court determined that the UUP was vested to the laws in effect in 1991, which included the 1983 Zoning Ordinance. The court also held that the UUP was properly issued. With respect to the PUD, the Court determined that, while the PUD was not vested to the laws and regulations in effect in 1991 by virtue of the PUD’s connection with the vested UUP or the County’s historical vesting practice, the express provisions of the 1995 Interim Zoning Ordinance vested the PUD to the laws and regulations in effect prior to the adoption of that ordinance. The court further found that the PUD met the requirements of the 1983 Zoning Ordinance and that the final EIS and addendum prepared for the Project met the requirements of SEPA.
The court determined, however, that the PUD approval must be reversed under this court’s decision in Association of Rural Residents, 95 Wn. App. 383, because the PUD did not comply with the County’s 1993 IUGA ordinance. This determination was the sole reason for reversal of the County’s approval of the PUD. Subsequently, the Washington State Supreme Court partially reversed this court’s decision in Rural Residents, ruling that the County’s 1993 IUGA was not in effect when the developer there submitted its preliminary plat and PUD applications, thus the applications vested to the zoning ordinances in place on the date of application. Rural Residents, 141 Wn.2d at 193.
The Screens appeal the Superior Court’s decision invalidating the County’s approval of the PUD, arguing, inter alia, that under the Supreme Court’s ruling in Rural Residents, their PUD also vested to the zoning ordinances in place at the time of application and the IUGA does not apply to their application. NKCC cross-appeals, arguing that the Superior Court’s reversal of the PUD approval must be upheld on the grounds that the Screen’s applications did not vest to the 1983 ordinance because they failed to submit a subdivision plat application with their application for the PUD and because they failed to specifically mention their proposed restaurant and inn as accessory uses in their application for the UUP. NKCC also contends that the County erred as a matter of law in approving the Screen’s UUP and PUD applications under the 1983 Zoning Ordinance with respect to its findings that (1) 30 percent of the golf course land counted as “common open space” in order to satisfy the PUD requirement for a density bonus, (2) adequate provision was made for the upkeep and maintenance of the golf course, (3) land that was logged within 5 years of the application submittal could be counted as open space, and (4) the PUD met the requirements related to capital construction costs when the developers were apportioned their proportional costs for road construction, which were calculated in specific dollar amounts.
DISCUSSION
Land Use Petition Act Standard of Review The Land Use Petition Act (LUPA), RCW 36.70C.130, provides the standard for review of land use petitions. Under RCW 36.70C.130(1), an appellate court may grant relief from a land use decision if the petitioner carries its burden in establishing one or more of 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.
RCW 36.70C.130(1). “[A]n appellate court applies these standards in reviewing a decision based upon the record created before the hearing examiner.” Weyerhaeuser v. Pierce Cy., 95 Wn. App. 883, 889, 976 P.2d 1279 (1999); RCW 36.70C.120(1); 36.70C.130(1).
NKCC challenges Kitsap County’s decision under subsections (b), (c) and (d). Challenges under RCW 36.70C.130(1)(b), claiming that the decision is an erroneous interpretation of the law, are questions of law and therefore reviewed de novo. City of Redmond v. Central Puget Sound Growth Management Hearings Bd., 136 Wn.2d 38, 46, 959 P.2d 1091 (1998). Where there is ambiguity in the applicable law, the Court gives great weight to the County’s interpretation of its own zoning ordinance. Citizens for a Safe Neighborhood v. City of Seattle, 67 Wn. App. 436, 440, 836 P.2d 235 (1992) (“It is a well established rule of statutory construction that considerable judicial deference should be given to the construction of an ordinance by those officials charged with its enforcement.”)
Issues raised under RCW 36.70C.130(1)(c) challenge the sufficiency of the evidence in the record. Under the substantial evidence standard used in RCW 36.70C.130(1)(c), we look for sufficient evidence in the record to persuade a reasonable person that the declared premise is true. Wenatchee Sportsmen Ass’n v. Chelan Cy., 141 Wn.2d 169, 176, 4 P.3d 123 (2000). This review of the factual issues is deferential, however. The evidence and reasonable inferences arising from the evidence are viewed in the light most favorable to the party who prevailed in the highest fact-finding authority. Bjarnson v. Kitsap Cy., 78 Wn. App. 840, 845, 899 P.2d 1290
(1995) (citing Freeburg v. City of Seattle, 71 Wn. App. 367, 371-72, 859 P.2d 610 (1993)). The party challenging the agency decision bears the burden of demonstrating that the decision is not supported by substantial evidence. Nordstrom Credit, Inc. v. Department of Rev., 120 Wn.2d 935, 939-40, 845 P.2d 1331 (1993).
The clearly erroneous test for challenges under RCW 36.70C.130(1)(d) is whether the court is “left with the definite and firm conviction that a mistake has been committed.” Anderson v. Pierce Cy., 86 Wn. App. 290, 302, 936 P.2d 432 (1997). This court’s review is deferential, viewing the evidence and any reasonable inferences in the light most favorable to the party that prevailed in the highest forum exercising fact-finding authority. Davidson v. Kitsap Cy., 86 Wn. App. 673, 680, 937 P.2d 1309
(1997). Association of Rural Residents v. Kitsap Cy., 141 Wn.2d 185, 4 P.3d 115 (2000).
We first address the parties’ challenges under the Washington State Supreme Court’s decision in Rural Residents. With respect to the County’s approval of the Screen’s PUD application, the Superior Court ruled that this court’s decision in Rural Residents required reversal. There, we concluded that Kitsap County’s 1993 IUGA was in effect when the plat and PUD applications at issue in that case were submitted and that the applications vested to both the zoning and IUGA. 95 Wn. App. at 396. The Washington Supreme Court subsequently reversed this ruling, concluding that the 1993 IUGA was not in effect when the applications in that case were submitted — instead, the 1993 IUGA expired and ceased to be in effect on October 3, 1994 — the deadline set by the Growth Management Hearing Board that the County failed to meet. 141 Wn.2d at 192-95. The Supreme Court stated that “the only land use regulations in effect were the preexisting zoning ordinances and, in the absence of adopted GMA plans or regulations, GMA policies cannot trump existing adopted land use regulations.” Id. at 197. Thus, the Supreme Court trumped the trial court’s only basis for reversing the County’s approval of the PUD.
NKCC attempts to distinguish the Supreme Court’s decision in Rural Residents, arguing, for the first time on appeal, that when the Screens’ PUD was approved on December 9, 1996, another IUGA was in effect that prohibited the PUD, that being the 1996 IUGA. In their reply brief for the cross-appeal, the Screens moved to strike this argument, in that it had not been raised below, so that neither the County nor the trial court ever had opportunity to consider the effect, if any, of the 1996 IUGA on the Screens’ applications. We decline to consider the motion to strike, in that it was improperly raised in a brief contrary to RAP 17(d), but we also decline to consider an issue that was never raised below. Moreover, § 455.100 of the 1995 Interim Zoning Ordinance demonstrates that no IUGA applied to the Screen’s application in any event:
Property involving rezone requests pending action by the Hearing Examiner or Board of Commissioners on or before (but subsequent to June, 1983) the adoption of this Ordinance, shall be exempted from any action under this Ordinance or the accompanying zoning maps until the zone change is legally disposed by final action. Specifically, this provision applies to . . . planned unit development . . . proposals which are currently (at the time of adoption of this Ordinance) in process. The Zoning Ordinance shall be amended to show the land use decision reflected in that decision. Until such zoning action is completed, the property in question shall comply with all applicable Code provisions in effect prior to the adoption of this Ordinance.
Clerk’s Papers at 193.
Section 455.100 mandates a unique treatment of PUDs pending at the time of its adoption, including the Screens’ PUD. On its face, the section both exempts pending PUDs from the requirements of the 1995 Interim Zoning Ordinance and provides that property subject to a pending PUD application need comply only with the code provisions in effect prior to the adoption of the 1995 Interim Zoning Ordinance. Accordingly, NKCC’s claims regarding IUGA noncompliance and its claim that the Screen’s applications did not vest to the 1983 Zoning Ordinance must be rejected.
In sum, the Superior Court did not have the benefit of the Supreme Court’s decision in Rural Residents, and based upon that decision and § 455.100 of the 1995 Interim Zoning Ordinance, the trial court’s reversal of the County’s approval of the PUD must be reversed. Vesting in the Absence of a Subdivision Plat Application NKCC also attempts to distinguish the Supreme Court’s decision in Rural Residents, and to establish that the Screens’ PUD did not vest in the 1983 ordinance, on the ground that the PUD application in Rural Residents was accompanied by a plat application, and the Screens did not apply for a plat subdivision concurrently with their PUD application or at any other time during the approval process. Although this is true, we still conclude that the Screens’ PUD was vested under the terms of § 455.100 of the 1995 Interim Zoning Ordinance. Under the express language of that provision, the Interim Zoning Ordinance does not apply to projects involving pending PUDs, and no subdivision application is necessary in order for this provision to apply. Additionally, the 1983 Zoning Ordinance does not require that a plat application accompany a PUD application in order for the PUD application to be complete.
Even before the adoption of the 1995 Interim Zoning Code, Kitsap County had a longstanding, unwritten local rule that PUDs vest on the date of application, yet NKCC argues that the Screens’ PUD did not vest. In support of its claim that the Screens should be treated differently from other PUD applicants in the County, NKCC asserts that:
(1) there was no gap in the 1983 Zoning Ordinance for the County to fill by interpretation;
(2) the County’s consistently applied local vesting rule amounted to ad hoc vesting; and
(3) the County’s local vesting rule is against the public interest.
These arguments have no merit.
First, the gap in the 1983 Zoning Ordinance is immediately obvious because the ordinance does not expressly address the vesting of PUDs. Accordingly, the County exercised its authority to fill in the gap in the ordinance by interpretation. See Erikson Assocs., Inc. v. McLerran, 123 Wn.2d 864, 873, 872 P.2d 1090 (1994) (local government may set its own vesting rules); Burley Lagoon Improvement Ass’n v. Pierce Cy., 38 Wn. App. 534, 538 fn. 1, 686 P.2d 503 (1984) (same); Citizens for a Safe Neighborhood, 67 Wn. App. at 440 (local jurisdiction may fill in the gaps in its ordinances by interpretation); Balser Inv., Inc. v. Snohomish Cy., 59 Wn. App. 29, 37, 795 P.2d 753 (1990), superseded by statute on other grounds by Freeburg, 71 Wn. App. 367 (same); Mall, Inc. v. City of Seattle, 108 Wn.2d 369, 378, 739 P.2d 668 (1987) (same); Hama Hama Co. v. Shorelines Hearings Bd., 85 Wn.2d 441, 448, 536 P.2d 157 (1975) (same).
Second, there was nothing ad hoc about the County’s vesting rule. For more than 13 years, the County consistently considered PUDs as vested on the date of application. NKCC avers that no PUD applicant in the history of the County other than the Screens ever applied for a residential PUD without simultaneously filing a plat application, and that only commercial applicants had ever been vested without a plat application — division of land not generally being part of a PUD in a commercial zone. NKCC also points out that RCW 58.17.033(1) provides that a `proposed division of land’ shall be considered vested to the subdivision and zoning ordinances in effect when a fully completed plat application has been submitted to the appropriate official. That statute also provides that the “requirements for a fully completed application shall be defined by local ordinance.’ RCW 58.17.033(2). Because a PUD can be used to divide land as well as to develop it, the Supreme Court ruled in Rural Residents that the vested rights doctrine in RCW 58.17.033 extends to PUD applications that are coupled with preliminary plat applications. We do not need to decide whether the statute also extends to PUD applications that are not coupled with preliminary plat applications because the 1995 Interim Zoning Ordinance vested PUD applications that were pending when the ordinance was adopted to the ordinance in effect when the applications were filed. Section 455.100 does not conflict with RCW 58.17.033, in that counties are allowed to set their own vesting rules, and Kitsap County’s vesting rule is more generous, not more onerous, than the state statute.
Third, the County’s local vesting rule is not inimical to the public interest. The public interest was sufficiently protected by (1) the 1983 Zoning Ordinance, which required that PUDs meet rigorous standards; (2) the administrative review process, which allows for extensive public participation and in which NKCC and other parties actively participated; (3) SEPA, under which exhaustive environmental review of the Project was conducted; and (4) the County Commissioners’ authority to condition the PUD — which authority the County exercised to impose numerous, detailed conditions on the Screens’ PUD in the public interest.
The 1983 Zoning Ordinance defines an unclassified use permit as a permit that authorizes the location of an unclassified use, which is a use “possessing unique and special characteristics as to make undesirable its being automatically permitted in one or more zones[.]” 1983 Zoning Ordinance, § 3(c)(80)-(81). Case law firmly establishes that a complete conditional use permit application vests a project. Weyerhaeuser, 95 Wn.2d 883 (conditional use permit application filed without plat vests); Beach v. Board of Adjustment of Snohomish Cy., 73 Wn.2d 343, 347, 438 P.2d 617 (1968) (same). We conclude that an unclassified use permit is essentially the same thing as a conditional use permit and that a completed application for either vests a project. See 17 William B. Stoebuck, Washington Practice: Real Estate: Property Law § 4.22 at 233 n. 1 (1995). Approval of the Restaurant and Inn as Accessory Uses in the UUP NKCC contends that the Screens’ UUP did not vest when the application was submitted because the application did not mention a restaurant or inn and the 1983 Zoning Ordinance did not designate restaurants or hotels as unclassified uses.
The Screen’s UUP application stated that “[p]roposed uses include an 18-hole golf course and accessory uses (e.g., practice range, clubhouse, recreational facilities and parking).” Though the application did not specifically mention a restaurant or inn, the record shows that the restaurant and a 15-room bed and breakfast inn are components of the clubhouse. The draft EIS explains that the clubhouse would “provide a lounge, dining, bed and breakfast lodging.” The final EIS provides a similar description, stating that the clubhouse would include a small food area and a 15-room inn.
It is not necessary that the application itself specify the uses in a project to vest, rather, it is sufficient that the uses are disclosed during the processing of the application. Westside Bus. Park LLC v. Pierce Cy., 100 Wn. App. 599, 605, 5 P.2d 713, review denied, 114 Wn.2d 1023 (2000).
Here, the restaurant and bed and breakfast inn were disclosed during the processing of the application and were clearly considered by the County as components of the clubhouse. The County concluded that the application was complete and its determination is entitled to great deference. 95 Wn. App. at 391; Citizens for a Safe Neighborhood, 67 Wn. App. at 440. We reject NKCC’s assertion that the UUP application was incomplete.
Common Open Space
NKCC argues that the PUD does not meet the common open space requirements of the 1983 Zoning Ordinance in order to qualify for a density bonus, because:
(1) the golf course does not qualify as common open space because it is not commonly owned;
(2) the County improperly counted 30 percent of the golf course as open space;
(3) the golf course does not qualify as open space because the PUD did not provide for its perpetual maintenance;
(4) the County improperly counted areas that had been logged as open space; and
(5) the County’s findings on open space are not supported by substantial evidence.
(1) Apportionment of Golf Course Property as Open Space
The NKCC asserts that the unambiguous meaning of Section 14(g) of the 1983 Zoning Ordinance is that common open space must be commonly owned. That subsection provides that every PUD containing dwelling units shall have at least a given percentage of its gross land area in common open space suitable for active or passive recreational purposes, and also provides that adequate provision must be made for the perpetual upkeep and maintenance of the common open space. The phrase `common open space” is not defined in the ordinance. `Open space’ is defined as “land used for outdoor recreation, resource protection, amenity, safety or buffer.” 1983 Zoning Ordinance, § 3(c)(55). Thus, under the plain language of this definition, status as open space is determined by use, not ownership. See State v. Fjermestad, 114 Wn.2d 828, 835, 791 P.2d 897 (1990) (in interpreting a statute, courts look first to its plain meaning). The addition of the adjective “common” to the term “open space” does not change this basic fact. Still, the word `common’ cannot be ignored. See Wills v. Kirkpatrick, 56 Wn. App. 757, 761, 785 P.2d 834 (1990) (statutes must be construed as a whole and all provisions must be harmonized).
The County Commissioners specifically determined that common open space need not be commonly owned, explaining that although the golf course was open to the public and was, therefore, not for the sole use of the residents of the development, it would provide (in addition to its aesthetic benefit) active recreational opportunities for the residents, “which is clearly an intent of the PUD section of the ordinance’. Exhibit 189 (Decision at 5-6). As we have previously noted, the County Commissioners’ construction of their own ordinance is entitled to great deference.
NKCC nonetheless asserts that the Commissioners “plainly understood” that common open space must be commonly owned because, in one finding, the Commissioners used the phrase to “be owned in common by the PUD residents[.]” NKCC’s Brief at 19. NKCC misrepresents the Commissioners’ statement. The phrase cited by NKCC is properly understood when restored to its context: “If the applicant receives no credit for any area of the course then, according to the applicant’s breakdown of the open space, there is approximately 34.8 per cent open space in the project, to be owned in common by the PUD residents.” Exhibit 189 (Decision at 6) (italics ours). The Commissioners’ statement simply identifies the Screens’ calculation of the amount of commonly owned open space in the Project if no credit were given for the golf course. The statement does not adopt the Screens’ calculation.
NKCC also points out that the Hearing Examiner found that “the golf course is not truly a component of and designed for the benefit of the residential users of the PUD.” NKCC’s Brief at 10, 19. Again, the phrase cited by NKCC appears in italics:
[T]he project concedes that only 30% of the golf course associated areas are appropriately considered as open space for the project because the associated unclassified use permit for the golf course is not truly a component of and designed for the benefit of the residential users of the PUD. The same computation that is 30% of the total should be used in determining density for the overall area. Thus, density for the project is approximately 1 unit per 1.75 acres.
Exhibit 136 (Decision at 17) (italics ours).
The Hearing Examiner made the preceding statement to justify reducing the Project’s open space area for purposes of calculating densities. However, that approach was rejected by the Commissioners, who determined that the entire Project site, including the golf course, should be counted for purposes of calculating density. The Commissioners based this conclusion on the fact that the golf course is an “integrated part” of the PUD and that the golf course would be available for the use of the PUD residents.
In short, NKCC improperly relies on a finding that was ultimately rejected by the Commissioners.
Finally, NKCC asserts that the proposed Declaration of Covenants, Conditions and Restrictions for the Project shows that the availability of the golf course to PUD residents is “a courtesy and not a right” and “subject to change or revocation [by the Screens] without notice.” NKCC’s Brief at 19-20. This is a misrepresentation of the contents of the record.
The portion of the Declaration that NKCC quotes states, with NKCC’s quote in italics: “It is the intention of Declarant, to offer special rates and/or privileges to owners. However, the amount or type of such special rates and/or privileges is subject to change or revocation without notice”. Thus, it is special rates and privileges, not the right of PUD residents to use the golf course, that are subject to change or revocation. Nothing in the record indicates that PUD residents may be excluded from the golf course; to the contrary, the record shows that the golf course and clubhouse will be open to all members of the public.
NKCC has not persuaded us that the Commissioners’ conclusion that the `common open space’ requirement of the applicable PUD ordinance was satisfied by the golf course is clearly erroneous. NKCC also argues that the County’s consideration of 30 percent of the golf course as open space was improper because the 30 percent figure does not appear in the 1983 Zoning Ordinance. NKCC relies on Eastlake Community Council v. Roanoake Assocs., Inc., 82 Wn.2d 475, 513 P.2d 36, 76 A.L.R.3d 360 (1973) and Peter Schroeder Architects, AIA v. City of Bellevue, 83 Wn. App. 188, 920 P.2d 1216 (1996), to support its claim that the County was not permitted to interpret its zoning ordinance to allow 30 percent of the golf course to be counted as open space. NKCC’s reliance on Eastlake and Schroeder is misplaced. Those cases do not hold that a local government may not reasonably interpret its own code. It is well established that a local government may interpret its own code so long as the interpretation is not contrary to an express provision of the code. Citizens for a Safe Neighborhood, 67 Wn. App. at 440; see also Balser Investments, 59 Wn. App. at 37; Mall, Inc., 108 Wn.2d at 378; Hama Hama Co., 85 Wn.2d at 448.
In this case, the 1983 Zoning Ordinance does not address whether a golf course that is inextricably linked with a PUD qualifies as open space. Accordingly, the County properly exercised its authority.
The County considered a previous development in which 30 percent of a golf course had been treated as open space. NKCC cites Buechel v. Department of Ecology, 125 Wn.2d 196, 211, 884 P.2d 910 (1994) for the proposition that a prior error does not foreclose proper action on a land use decision, and Dykstra v. Skagit Cy., 97 Wn. App. 670, 985 P.2d 424
(1999), review denied, 140 Wn.2d 1016 (2000) for the proposition that governmental entities are not foreclosed from enforcing zoning ordinances even though they have not been enforced in the past, due to the public’s interest in zoning. But NKCC has not shown that the County’s treatment of the previous golf course was erroneous. Accordingly, Buechel and Dykstra are inapposite.
Finally, NKCC fails to meet its burden of proof with regard to its challenge to the sufficiency of the evidence in support of the County’s findings and conclusions regarding open space. See Nordstrom Credit, Inc. v. Department of Rev., 120 Wn.2d 935, 939-40, 845 P.2d 1331 (1993) (party challenging decision bears burden of demonstrating that the decision is not supported by substantial evidence). The County’s primary conclusion regarding open space is that the Project meets the 1983 Zoning Ordinance requirement that 35 percent of the site must be in common open space. The addendum to the EIS, prepared in May 1996, contains a chart listing the various types of open space provided, in great detail. The chart and accompanying text show that approximately 50 percent of the site is in common open space if all of the golf course is counted as common open space. Approximately 38 percent of the site is in common open space if 30 percent of the golf course and clubhouse grounds are counted. The County’s determination is well supported by substantial evidence in the record. NKCC argues that inconsistent open space figures are used in some of the documents in the record. However, under the substantial evidence test, if there is conflicting evidence, then the reviewing court need only determine whether the evidence most favorable to the responding party supports the challenged decision. See In re Estate of Kessler, 95 Wn. App. 358, 369, 977 P.2d 591 (1999). Here, substantial evidence in the record supports the Commissioners’ decision.
(2) Adequate Provisions for Upkeep and Maintenance of the Golf Course
The NKCC claims that, even if the golf course was properly considered common open space, the PUD did not meet the requirements of the 1983 Zoning Ordinance because the County did not make adequate provision for the upkeep and maintenance of the golf course by a homeowners’ association or similar mechanism.
We reject this claim because the record clearly states that a legal entity formed by the Screens will “assume all responsibility for management and maintenance” of the golf course and associated facilities. Exhibit 37 (Draft EIS at 2-11). Homeowners’ associations exist to facilitate the maintenance of property owned by several different homeowners. Since the golf course will be owned by a single entity, formation of an association to maintain it would be nonsensical. Furthermore, the NKCC’s suggestion that the Screens may allow the golf course to fall into disrepair is entirely speculative. The 1983 Zoning Ordinance requires that open space “shall be perpetually maintained in a good, safe and serviceable condition.” Clerk’s Papers at 176 (1983 Zoning Ordinance, § 14(o)), a requirement that will be binding on the entity the Screens intend to form.
The County also observed that if the golf course were allowed to deteriorate, the homeowners in the development would likely bring pressure to bear, as would the public. The County was within its discretion to find that adequate provision was made for the perpetual upkeep and maintenance of the golf course. (3) Designation of Logged or Clearcut Land as Open Space The NKCC argues that the County improperly counted land that was clearcut or extensively logged as open space. However, the 1983 Zoning Ordinance plainly allows the County to make such a determination. It states that “[a]ny area that has been clearcut or extensively logged within five years of submittal may not be acceptable as buffer or open space.” Id. (1983 Zoning Ordinance, § 14.p(l)(b)). The term “may” is permissive, or discretionary, rather than mandatory. National Elec. Contractors Ass’n v. Riveland, 138 Wn.2d 9, 28, 978 P.2d 481
(1999). Thus, under this section, the County may, but is not required, to determine that areas that have been clearcut or logged are not acceptable as open space.
In this case, the County determined, with particular conditions, that certain previously logged land could be counted as open space. Specifically, the County required that the Screens prepare an assessment of the visual screening capability of buffers and enhance the buffers by planting additional trees, if appropriate, in order to address the effects of past logging. The County also counted only 30 percent of the golf course, located in the area in which the most logging had occurred, as open space. With these conditions and limitations, the County’s determination that previously logged areas were acceptable as open space was well within its discretion and did not violate any requirement of the 1983 Zoning Ordinance. (4) Capital Construction Costs The 1983 Zoning Ordinance allows increased densities in the Rural 2.5 zone with a PUD if, among other things, the project “does not require any capital construction costs to the public[.]” (1983 Zoning Ordinance, § 14(p)). The NKCC contends that the Project does not meet this requirement on the ground that it requires capital construction costs to the public for construction of an east-west roadway link north of the Project site (“East-West Link”). Specifically, NKCC claims that: (1) the Project requires capital construction costs to the public despite the fact that the Project will pay its fair share of the cost of the East-West Link; (2) the Project’s fair share is stated as a dollar amount based on an estimate of the cost of the East-West Link rather than percentage of the actual cost of the Link; and (3) the calculations of the Project’s fair share were inaccurate.
The record shows that the East West Link is not proposed in connection with the Project. Rather, it is a roadway of system-wide benefit that the County may construct in the future, whether or not the Project is approved.
The East-West Link would be located north of the Project site and would connect South Kingston Road and Miller Bay Road near its intersection with Indianola Road. Primary access to the Project, in contrast, would be at the south and east sides of the Project site. But some Project traffic that would otherwise use existing roadways would use the East-West Link if it were constructed.
In arguing that the County violated the ordinance’s requirement that increased density be granted only if the project does not require “any capital construction costs to the public,” NKCC claims that the Hearing Examiner found that “`there still remains some `public capital costs’ once [required road] improvements are actually constructed.'” NKCC’s Brief at 13. What the Hearing Examiner actually said is:
While there still may remain some `public capital cost’ once these improvements are actually constructed, it can be clearly understood that these improvements will be for the benefit of others using those roadways and not specific to this development.
Exhibit 162 (Decision at 33). A reading of the entire sentence reveals that the Hearing Examiner recognized that the public would not pay the Project’s fair share of capital construction costs for the East-West Link.
This conclusion is supported by the Traffic/Transportation Division’s determination that 12.5 percent of the estimated cost of construction of the Link would be fairly attributable to the Project — thus the Project should be required to pay $500,000 of the estimated cost of the construction to mitigate its traffic impact. Accordingly, the zoning ordinance’s requirement that the PUD not require capital construction costs to the public was satisfied. We summarily reject NKCC’s apparent position that in order to qualify for a density bonus, the Project should have been required to pay not only its fair share of the cost of constructing the East-West Link but the entire cost of construction — or else the public would, in fact, be required to pay capital construction costs. This proposed interpretation of the ordinance would render the density-bonus provision unconstitutional. See, e.g., Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994); Burton v. Clark Cy., 91 Wn. App. 505, 523-24, 958 P.2d 343 (1998) (government must show that proposed solution to public problem is roughly proportional to part of problem created or exacerbated by development), review denied, 137 Wn.2d 1015 (1999). See also Citizens for a Safe Neighborhood, 67 Wn. App. at 440 (local government’s interpretation of its own ordinance entitled to great weight).
NKCC argues that the County erred by assigning a dollar amount to the Project’s fair share contribution because this amount does not take into account inflation between the time the PUD is approved and the time (if ever) that the County ultimately constructs the East-West Link. NKCC has not shown that it is improper as a general matter to calculate a developer’s fair share of the cost of traffic improvements in dollars, a practice that is not unique to Kitsap County. See, e.g., Castle Homes and Dev., Inc. v. City of Brier, 76 Wn. App. 95, 98, 882 P.2d 1172 (1994) (calculating fair share for traffic improvements at $962 per lot).
In addition, the applicable State statute specifically contemplates that developer’s fair-share contributions will be reduced to dollar amounts and might not be expended for up to 5 years after payment. RCW 82.02.020(1), (2) (payment to mitigate impact of development must be held in reserve account and expended within 5 years of collection). Nor has NKCC shown that the County’s estimate will result in the Project paying less than its full share of actual construction costs. NKCC cites no evidence in the record that the cost of constructing the road will be more than estimated by County staff. NKCC’s allegations are mere speculation and do not meet NKCC’s burden of proof.
The record also refutes NKCC’s claim that the County miscalculated the percentage of the cost of the East-West Link attributable to the Project. NKCC claims that the County’s calculation was based on outdated traffic data, citing a memorandum written by County staff explaining how the Project’s fair share was calculated.
In the memorandum cited by NKCC, County staff stated that the projected background traffic volumes contained in the 1991 traffic study for the Project were outdated. Staff did not conclude that the traffic study’s estimate of Project traffic or trip distribution was inaccurate but instead concluded only that the projected amount of non-Project traffic was less than indicated by traffic counts done in 1994. In addition, staff did not proceed to use these outdated estimates of non-Project traffic, as NKCC claims.
Instead, staff prepared new estimates of background traffic conditions based on 1994 actual traffic counts and a projected growth rate of 8 percent after 1994. Based on this new data, staff calculated the levels of service of intersections in the vicinity of the Project when Project traffic was added to the roadways. The Hearing Examiner recognized that staff had updated the traffic data, finding: “The Department of Public Works prepared a new calculation using 1995 traffic counts which resulted in the recommendation of a specific mitigation payment by the Applicant to support offsite traffic improvements related to the development of the project.” Exhibit 162 (Decision at 30).
NKCC also claims that the County underestimated the Project traffic that will use the East-West Link by 200 average daily trips, reducing the Project’s fair share of the cost of the East-West Link by 1.8 percent. In response, the Screens contend that the County actually overestimated the Project’s proportionate share of the cost of construction. Each side bolsters its argument with mathematical calculations designed to persuade us that the County either undercounted or double-counted construction costs attributable to the Project. These arguments are not appropriate in the appellate context as we are not fact-finders. Rather, we look for evidence in the record that may not be undisputed but that is nevertheless sufficient to support the County’s findings when viewed in a light most favorable to the Screens. Here, the County’s findings are well within the range of evidence, and assuming without finding that County staff may have made one or more mathematical errors, we decline to `grade their papers’ at the appellate level.
Finally, NKCC claims that the County should have based the Project’s fair share of the cost of the East-West Link on a percentage of expected traffic on the East-West Link rather than a percentage of its capacity. NKCC cites no authority for this claim. The sole basis for NKCC’s claim appears to be that this method would result in a greater cost to the Project. But, the mere fact that one method would result in greater costs to a developer than another does not mandate the higher-cost approach. NKCC has failed to meet its burden of proof. RCW 36.70C.130.
In sum, NKCC has failed to carry its burden to establish that the County erroneously interpreted its ordinances in making this land use decision, or that the County erroneously applied the law to the facts. The disputed facts are supported by substantial evidence in the record. Accordingly, the cross-appeal must fail. As for the direct appeal, although the trial court properly determined that it was bound by our decision in Rural Residents, the Supreme Court’s subsequent reversal of our decision trumped the trial court’s only basis for reversal. NKCC has failed to persuade us that the trial court’s reversal should be affirmed on any other ground. Accordingly, we reverse the trial court and reinstate the County’s approval of the Screen’s PUD and UUP applications.
WE CONCUR: BECKER, J., WEBSTER, J.