                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                        October 18, 2016




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 SCHNITZER WEST, LLC, a Washington                                  No. 47900-1-II
 limited liability company,

                               Respondent,

        v.

 CITY OF PUYALLUP, a Washington                                 PUBLISHED OPINION
 municipal corporation,

                               Appellant,

        and

 NEIL ARTHUR VAN LIEROP, an individual,
 and VAN LIEROP INVESTMENT
 COMPANY, INC., a Washington company,
 and VAN LIEROP BULB FARMS, INC., a
 Washington company,

                        Additional Parties.

       JOHANSON, J. — The City of Puyallup (City) appeals from a superior court order declaring

its “Ordinance No. 3067” (the Ordinance) invalid under the Land Use Petition Act (LUPA),

chapter 36.70C RCW. Schnitzer West LLC filed a LUPA petition challenging the Ordinance in

superior court, claiming that the Ordinance was an invalid land use decision. The City argues that

the superior court lacked subject matter jurisdiction because the Ordinance is a legislative action,

not a land use decision subject to LUPA review.
No. 47900-1-II


         We hold that the Ordinance was not a “site-specific” land use decision because it did not

result from an application by a specific party, and therefore the superior court lacked subject matter

jurisdiction under LUPA.      Accordingly, we reverse the superior court order declaring the

Ordinance invalid and dismiss Schnitzer’s LUPA petition.

                                              FACTS

                                          I. BACKGROUND

         This case involves a series of decisions by the Puyallup City Council concerning an area

where Schnitzer had purchased commercial property and sought to develop that property

(Schnitzer Property).1 In 2009, the City formally adopted an amendment to its comprehensive

plan that created the “Shaw-East Pioneer Overlay Zone” (SPO).2 The Shaw Road/East Pioneer

Street area is considered a symbolic “‘gateway’” to the City. Clerk’s Papers (CP) at 205. The

City wanted to create additional performance standards to supplement the existing zoning

standards to encourage quality development in that area while allowing flexibility and creativity,

create a walkable, safe, and pedestrian-friendly community, and use low-impact development

principles. An “overlay zone” such as the SPO establishes additional development criteria to

supplement the base zoning standards already in existence in a given area or per underlying zoning

district. CP at 103.




1
    Also known as the Van Lierop property.
2
  Shaw Road/East Pioneer Street is a reference to an intersection in the vicinity. The annexation
area mentioned below refers to property to the north of the intersection. Certain property to the
south of the intersection was within city limits, and the SPO had already been extended to those
parcels.

                                                  2
No. 47900-1-II


        The SPO was codified in chapter 20.46 of the Puyallup Municipal Code (PMC). At the

time of its adoption, the SPO did not apply to Schnitzer’s property because the City had yet to

annex it. The City, however, intended to expand the SPO into commercially zoned parcels within

the area after it was annexed. Chapter 20.46 PMC imposes various regulations that are intended

to promote creative, flexible, and quality development, ensure safe and pedestrian-oriented

streetscapes, and encourage the use of low-impact development within the SPO. Annexation of

the Schnitzer Property occurred in 2012, but the City did not extend the SPO into the area at that

time.

        In 2013, following its purchase of the Schnitzer Property within the newly annexed area,

Schnitzer requested—and the City approved—an amendment to the then-existing zoning

designation to convert a portion of its property from “Business Park” to “Limited Manufacturing”

(ML) zoning to allow this portion to be zoned consistently with an adjacent part. CP at 319.

Schnitzer’s development plans included a 470,000-square-foot warehouse. The City approved

Schnitzer’s rezone request, finding that if it did not do so, an industrial development on the

property would not be economically viable. Following this action, Schnitzer owned a total of three

parcels in the annexation area, each with the ML zoning designation. Presumably, its development

proposal was viable under this arrangement.




                                                3
No. 47900-1-II


       In January 2014, following the election of two new city council members, the City held a

hearing to discuss whether or not it should impose an emergency development moratorium on all

parcels within the recently annexed area, including the Schnitzer Property.3 The stated purpose of

the moratorium was to provide the City with sufficient time to consider whether to extend the SPO

into all zones within the annexation area. But in Schnitzer’s view, the City had ulterior motives.

Schnitzer believed that, in reality, the proposed moratorium was a retaliatory measure designed to

frustrate its development proposal.

       After a second hearing, the City enacted an ordinance imposing the moratorium on all

parcels within the annexation area for a 120-day period. In April 2014, the planning commission

reviewed the potential SPO expansion, and it determined that there was no basis to extend the SPO

into any portion of the annexation area, including the Schnitzer Property. The following month,

after its review of the planning commission’s recommendations, the City discussed the possibility

of extending the SPO to only the Schnitzer Property—those parcels zoned ML.

       The City indicated that it would not consider applying the SPO as it had previously been

written and applied to commercially-zoned properties, but it considered the possibility of either

extending an amended version of the SPO to the Schnitzer Property or not extending the SPO to

its property at all.   In furtherance of the former option, the City prepared draft code text

amendments to chapter 20.46 PMC, noting that a corresponding zoning map amendment would



3
  There were a total of 13 parcels in the annexation area of which Schnitzer owned 3. Only the
Schnitzer Property had an ML zoning designation while the others had various commercial zoning
designations. As mentioned below, the City initially proposed an SPO expansion that would apply
to all 13 parcels, but after multiple hearings and a comprehensive study by the planning
commission, the city council voted to expand the SPO only to properties zoned ML, each of which
Schnitzer owned.

                                                4
No. 47900-1-II


accompany any modified SPO if applied to the ML zone. The City recognized that although the

plan it contemplated would involve differing and generally stricter design standards such as

“consistent landscaped perimeter treatment and a maximum building size,” the overall type and

scope of allowable uses in the proposed scenario would be “fairly similar.”4 CP at 160. According

to the City, this new option for extending the SPO would not fundamentally change the projected

range of land uses permissible under the existing zoning regulations.

       The City drafted the Ordinance to reflect its intent to expand this amended SPO into

Schnitzer’s ML-zoned property. The SPO extension was a divisive issue in the City. From the

first proposal of the Ordinance to its enactment there was both considerable support and

opposition. Proponents of the Ordinance were concerned about the importance of the area and the

need for careful and thoughtful development. Meanwhile, opponents believed that existing

development standards were adequate and that an SPO extension would operate as an undue

burden to development in the area.

       On May 28, 2014, the City adopted the Ordinance. The Ordinance imposed a variety of

new design standards and development regulations. It contained a building size limitation of

125,000 square feet, a size drastically smaller than Schnitzer’s planned 470,000-square-foot

warehouse. Concurrently with the Ordinance’s adoption, the City also added a new section to

chapter 20.46 PMC to reflect the SPO’s expansion into the ML-zoned properties.



4
  The parties appear to disagree as to the extent that the Ordinance affects proposed uses of the
property. The City frequently remarks that the Ordinance consisted largely of “design standards,”
but Schnitzer contends that the Ordinance fundamentally altered the type and scope of permissible
uses on the land. In support of this contention, it seems that Schnitzer relies almost entirely on the
building size limitation because the City is correct insofar as the rest of the Ordinance relates
largely to aesthetics such as streetscape appearance and landscaping regulations.

                                                  5
No. 47900-1-II


                                          II. PROCEDURE

       Shortly after the City enacted the Ordinance, Schnitzer challenged its validity by filing a

LUPA petition in the superior court. In Schnitzer’s view, the City enacted the Ordinance under

the guise of legislative action, ignoring procedures for quasi-judicial, site-specific actions under

the city code and state law. Schnitzer also contended that the City singled out and unfairly targeted

it because the City’s constituents disfavored the proposed project.

       The City moved to dismiss the petition for lack of subject matter jurisdiction because the

Ordinance was not a “‘land use decision’” subject to review under LUPA. CP at 280. The superior

court denied the motion. The superior court then ruled that the Ordinance was an unlawful site-

specific rezone and that the Ordinance was invalid as a matter of law. The City appeals.

                                            ANALYSIS

       The City argues that the superior court lacked jurisdiction to review the validity of the

Ordinance under LUPA because the Ordinance was not a “‘land use decision.’” Br. of Appellant

at 12, 15. We agree.

                       A. STANDARD OF REVIEW AND LAND USE DECISION

       Whether a court has subject matter jurisdiction for a LUPA petition is a question of law

that we review de novo. Durland v. San Juan County, 182 Wn.2d 55, 64, 340 P.3d 191 (2014).

LUPA grants the superior court exclusive jurisdiction to review a local jurisdiction’s land use

decisions with the exception of decisions subject to review by bodies such as the Growth

Management Hearings Board. RCW 36.70C.030(1)(a)(ii). The legislature’s purpose in enacting

LUPA was to “establish[ ] uniform, expedited appeal procedures and uniform criteria for




                                                 6
No. 47900-1-II


reviewing [land use] decisions [by local jurisdictions], in order to provide consistent, predictable,

and timely judicial review.” RCW 36.70C.010.

       A “‘[l]and use decision’” is

       a final determination by a local jurisdiction’s body or officer with the highest level
       of authority to make the determination, including those with authority to hear
       appeals, on:
               (a) An application for a project permit or other governmental approval
       required by law before real property may be improved, developed, modified, sold,
       transferred, or used, but excluding applications for . . . legislative approvals such as
       area-wide rezones and annexations; and excluding applications for business
       licenses.

RCW 36.70C.020(2) (emphasis added).

       “Project permit” or “project permit application” means any land use or
       environmental permit or license required from a local government for a project
       action, including but not limited to building permits, subdivisions, binding site
       plans, planned unit developments, conditional uses, shoreline substantial
       development permits, site plan review, permits or approvals required by critical
       area ordinances, site-specific rezones authorized by a comprehensive plan or
       subarea plan, but excluding the adoption or amendment of a comprehensive plan,
       subarea plan, or development regulations except as otherwise specifically included
       in this subsection.

RCW 36.70B.020(4) (emphasis added).

                                      B. SITE-SPECIFIC REZONES

       Our Supreme Court has held that site-specific rezones are “project permit[s]” and are thus

land use decisions under LUPA subject to the superior court’s exclusive jurisdiction. Woods v.

Kittitas County, 162 Wn.2d 597, 610, 174 P.3d 25 (2007). “[A] site-specific rezone is a change in

the zone designation of a ‘specific tract’ at the request of ‘specific parties.’” Spokane County v.

E. Wash. Growth Mgmt. Hr’gs Bd., 176 Wn. App. 555, 570, 309 P.3d 673 (2013) (internal

quotation marks omitted) (quoting Woods, 162 Wn.2d at 611 n.7), review denied, 179 Wn.2d 1015

(2014). A site-specific rezone is not a project permit approval under LUPA when the rezone is

                                                  7
No. 47900-1-II


approved concurrently with a comprehensive plan amendment because the statute requires that a

site-specific rezone be authorized by the “then-existing” comprehensive plan to constitute a land

use decision. Spokane County, 176 Wn. App. at 571.

                   C. SITE-SPECIFIC REZONE REQUESTED BY A SPECIFIC PARTY

       Here, the crux of the parties’ dispute is whether the Ordinance extending the SPO to

Schnitzer’s ML-zoned property was a “site-specific” rezone and thus should be considered a land

use decision subject to superior court review under LUPA. The City argues that its decision to

extend the SPO cannot be considered a site-specific rezone because it was initiated by the City in

its legislative capacity and no “specific party” applied for or otherwise requested a rezone. Br. of

Appellant at 21. We agree.5

       To demonstrate that the Ordinance here effectuated a site-specific rezone, the evidence

must show (1) that there was a change in zone designation (2) of a specific tract and (3) that specific

tract’s zoning designation change was requested by a “‘specific party.’” Spokane County, 176 Wn.

App. at 570 (internal quotation marks omitted) (quoting Woods, 162 Wn.2d at 611 n.7).

       RCW 36.70C.020(2)(a) defines a land use decision as a final determination on “[a]n

application for a project permit or other governmental approval.” (Emphasis added.) Under RCW

36.70B.020(4), project permit means a permit required from a local government. But a public

agency does not apply for a permit to itself nor does it apply for approval of its own action. Read

together, these two statutes require an application from someone other than the public entity. Here,

no specific party applied for a change in the zoning classification of the Schnitzer Property.




5
  Because we reverse the superior court on this ground, we do not reach the City’s remaining
arguments.
                                              8
No. 47900-1-II


Instead, out of concern for the special character of the SPO “gateway” area, the City initiated

procedures to consider extending the SPO. Schnitzer has cited no authority that a City’s decision

to amend existing zoning ordinances constitutes a “change in the zone designation . . . at the request

of ‘specific parties.’” Spokane County, 176 Wn. App. at 570 (internal quotation marks omitted)

(quoting Woods, 162 Wn.2d at 611 n.7).

       Schnitzer relies on cases where courts have determined that site-specific rezones occurred.

For instance in Woods, our Supreme Court was asked whether the superior court had jurisdiction

to decide whether a site-specific land use decision complied with the Growth Management Act,

chapter 36.70A RCW. 162 Wn.2d at 603. In Woods, Kittitas County had been asked by a third

party to rezone an area zoned “forest and range” into one that permitted much smaller lot sizes to

provide areas for low density residential development. 162 Wn.2d at 603-04.

       Schnitzer also cites Kittitas County v. Kittitas County Conservation Coalition, where the

issue was whether the superior court or the Growth Management Hearings Board had subject

matter jurisdiction to review a rezone request made in conjunction with a proposed comprehensive

plan amendment. 176 Wn. App. 38, 45, 308 P.3d 745 (2013). Division Three of this court held

that a site-specific rezone that is not authorized by a then-existing comprehensive plan is subject

to review by the Growth Management Hearings Board. Kittitas County, 176 Wn. App. at 52.

Schnitzer rightfully acknowledges that Kittitas County is distinguishable from the present case

because the Ordinance here was not enacted concurrently with a comprehensive plan amendment

nor a request for such an amendment.

       In Spokane County, Division Three held that superior courts do not have exclusive

jurisdiction under LUPA when a site-specific rezone request to change a zoning designation is


                                                  9
No. 47900-1-II


made simultaneously with a request for an amendment to a comprehensive plan. 176 Wn. App. at

562. There, the comprehensive plan amendment was necessary because a business owner engaged

in a nonconforming use. Spokane County, 176 Wn. App. at 562-63.

        Schnitzer is correct that the rezone was authorized by its then-existing comprehensive plan.

In fact, the recitals contained in the Ordinance itself state that the extension of the SPO was

consistent with the City’s comprehensive plan. Significantly, however, Schnitzer fails to reconcile

one aspect that is universally true in each case it cites, but is not true here.

        In each case on which Schnitzer relies, the site-specific rezone (or what would have been

considered a site-specific rezone if permitted by the respective comprehensive plans) was

requested by a specific party and either approved or denied by the local government entity

involved. In Woods, an entity that owned a large amount of property applied for the change in that

property’s zoning classification. 162 Wn.2d at 603-04. In Kittitas County, a property development

company applied for the change in zoning designation. 176 Wn. App. at 45. And in Spokane

County, a business owner seeking to expand its operations and to remedy the business’s

nonconforming use was the party who applied for the zoning designation changes. 176 Wn. App.

at 562-63.

        To establish that the City should be viewed as a specific party applying for a rezone request,

Schnitzer relies on a single reference within the PMC that says that applications to initiate

consideration of matters under the zoning code can be initiated by the city council. PMC

20.11.005. But Schnitzer does not point to any document in the record purporting to be the

“application” by the City to initiate consideration of matters under its own zoning code. Schnitzer




                                                   10
No. 47900-1-II


does not explain how the City’s Ordinance nevertheless constitutes a specific request or application

by a specific party for a rezone.

        For the foregoing reasons, we hold that the City’s Ordinance does not constitute a site-

specific rezone and, therefore, it is not a land use decision subject to the superior court’s

jurisdiction.

                                         D. CONCLUSION

        We reverse the superior court’s order declaring the Ordinance invalid and granting relief

under LUPA in favor of Schnitzer and remand to dismiss Schnitzer’s LUPA petition for lack of

subject matter jurisdiction.



                                                     JOHANSON, J.
 I concur:



 MAXA, J.




                                                11
No. 47900-1-II


       BJORGEN, C.J. (dissenting) — At issue in this appeal is whether Ordinance 3067 is the

sort of site-specific rezone that must be challenged in superior court under the Land Use Petition

Act (LUPA), chapter 36.70C RCW; or whether it is in the nature of a comprehensive plan

amendment or the sort of development regulation that must be challenged through the Growth

Management Hearings Board under the Growth Management Act (GMA), chapter 36.70A RCW.

Because I believe it is of the former type, I dissent.

       Ordinance 3067, adopted in 2014, extended an amended version of the Shaw-East

Pioneer Overlay Zone (SPO) onto three contiguous parcels of land, owned by Schnitzer West

LLC, totaling approximately 22 acres. The Schnitzer parcels were part of a larger area annexed

into the City of Puyallup in 2012. The City intended to extend the SPO onto all 13

commercially-zoned parcels within the annexed area, but only reached the Schnitzer parcels

through this 2014 ordinance. Before Ordinance 3067 was adopted, Schnitzer had requested, and

the City approved, a rezone of this property from “Business Park” to “Limited Manufacturing”

(ML) zoning. The City subsequently considered a development moratorium on the area that had

been annexed, including the Schnitzer property, and Schnitzer filed a short subdivision

application for a 470,000 square foot warehouse on its property before the City could adopt the

moratorium. The City then adopted Ordinance 3067, which, among other features, imposed a

building size limitation of 125,000 square feet, drastically smaller than Schnitzer’s planned

470,000 square foot warehouse.

       In sum, Ordinance 3067 rezoned only a 22-acre portion of the annexation area, consisting

of Schnitzer’s three parcels on which it had already submitted a subdivision application for a




                                                  12
No. 47900-1-II


specific development proposal. The effect of the rezone was to make Schnitzer’s specific

warehouse proposal illegal.

       The central statutory provisions governing whether Ordinance 3067 may be challenged

under LUPA are RCW 36.70C.020(1) and RCW 36.70B.020(4). As pertinent, RCW

36.70C.020(2)(a) specifies that a “land use decision” subject to LUPA is a determination by a

local jurisdiction on an “application for a project permit or other governmental approval required

by law before real property may be . . . developed . . . but excluding applications for legislative

approvals such as area-wide rezones.” RCW 36.70B.020(4), in turn, states that a project permit

includes, among other matters, “site-specific rezones authorized by a comprehensive plan or

subarea plan, but excluding the adoption or amendment of a comprehensive plan, subarea plan,

or development regulations except as otherwise specifically included in this subsection.”

       Woods v. Kittitas County, 162 Wn.2d 597, 610, 174 P.3d 25 (2007), made the effect of

these provisions clear:

               GMHBs do not have jurisdiction to decide challenges to site-specific land
       use decisions because site-specific land use decisions do not qualify as
       comprehensive plans or development regulations. Former RCW 36.70A.030(7);
       RCW 36.70B.020(4); Wenatchee Sportsmen, 141 Wn.2d at 179, 4 P.3d 123. A
       challenge to a site-specific land use decision should be brought in a LUPA petition
       at superior court. Wenatchee Sportsmen, 141 Wn.2d at 179 n.1, 4 P.3d 123.

       Every element of the extension of the SPO to the Schnitzer parcels speaks to its site-

specific nature. It is not a text amendment applicable throughout a zoning district. Cf. Raynes v.

City of Leavenworth, 118 Wn.2d 237, 821 P.2d 1204 (1992). It neither involves nor requires a

comprehensive plan amendment. Cf. Wenatchee Sportsmen Ass’n v. Chelan County, 141 Wn.2d

169, 179, 4 P.3d 123 (2000); Spokane County v. E. Washington Growth Mgmt. Hrg’s Bd., 176

Wn. App. 555, 571-72, 309 P.3d 673 (2013), review denied, 179 Wn.2d 1015 (2014). To the

                                                 13
No. 47900-1-II


contrary, the ordinance itself states that “[t]his ordinance would be supported by policies with the

Comprehensive Plan Community Character Element” and then lists those policies in detail.

Clerk’s Papers at 205-06.

        In addition, the ordinance only affects three parcels totaling around 22 acres in size, far

below the nearly 40-acre commercial planned unit development deemed quasi-judicial in

Citizens for Mount Vernon v. City of Mount Vernon, 133 Wn.2d 861, 874-75, 947 P.2d 1208

(1997). In doing so, the ordinance carves these three parcels away from similarly situated ones.

First, the ordinance stated that the city council intended to extend the SPO into the annexation

area upon annexation. The ordinance, however, only affected the three Schnitzer parcels,

leaving the rest of the annexation area untouched. Second, although the city zoning map shows

land zoned ML in the immediate vicinity, the three Schnitzer parcels were the only ML-zoned

land affected by Ordinance 3067. These distinctions do not necessarily signal any substantive

legal flaws in the ordinance. They do, however, help show the ordinance’s relentless spotlight

on the Schnitzer site.

        Context, also, is telling. As noted, Schnitzer filed a subdivision application for a 470,000

square foot warehouse on the property before the adoption of Ordinance 3067. The ordinance

made that impossible. Thus, both the scope and purpose of extending the SPO onto Schnitzer’s

three parcels shows that it was not an adoption of legislative or area-wide policy, but rather a

rezone of a specific, relatively small property in the context of a development proposal on that

property. Even if this is entirely legal and in the public interest, it is unmistakably site-specific.




                                                  14
No. 47900-1-II


       The majority holds, though, that the ordinance is not subject to LUPA, because the

zoning change it made was not requested by a “specific party,” but rather was initiated by the

City. This conclusion rests on the following statement in Spokane County, 176 Wn. App. at 570:

       The rezone was certainly site specific. See Woods, 162 Wn.2d at 611 n.7, 174 P.3d
       25 (stating a site-specific rezone is a change in the zone designation of a “‘specific
       tract’” at the request of “‘specific parties’”) (quoting Cathcart-Maltby-Clearview
       Cmty. Council v. Snohomish County, 96 Wn.2d 201, 212, 634 P.2d 853 (1981)).
       But the parties dispute whether the rezone was or needed to be “authorized by a
       comprehensive plan.” RCW 36.70B.020(4).2

This statement, however, should not be taken as a holding that a rezone initiated by local

government can never be subject to LUPA.

       First, whether a rezone must be initiated by a party other than the local government to be

deemed “site-specific” was neither disputed nor analysed in the Spokane County decision.

Instead, the court examined whether the rezone was authorized by a then-existing comprehensive

plan or whether it was premised on and carried out an amendment to the plan. Id. at 571-72. In

addition, the rezone was proposed by the applicant, not by the City, so the status of a City-

proposed rezone was not at issue. For these reasons, the requirement of “specific parties” in

Spokane County is dicta at best.

       The authority on which Spokane County relies, Woods, 162 Wn.2d at 611 n.7, is appended

to Woods’ description of the holding in Wenatchee Sportsmen: that a challenge to a rezone under

LUPA is limited to its compliance with zoning requirements or urban growth area restrictions, not

the GMA itself. See Woods, 162 Wn.2d at 611. Thus, Woods cannot be taken as authority for a

rule that a rezone initiated by local government can never be subject to LUPA.

       In the absence of analysis and the presence of dicta drawing on further dicta, neither

Woods nor Spokane County can be taken as authority that a rezone initiated by a local

                                                15
No. 47900-1-II


government can never be deemed site-specific under LUPA. To the contrary, an express holding

of Spokane County suggests the opposite:

       we hold a site-specific rezone is a project permit approval under LUPA if it is
       authorized by a then-existing comprehensive plan and, by contrast, is an
       amendment to a development regulation under the GMA if it implements a
       comprehensive plan amendment.

Spokane County, 176 Wn. App. at 572. Ordinance 3067 made clear that its rezone was authorized

by the existing comprehensive plan and did not implement any amendment to that plan. As shown,

this rezone was site-specific in purpose and effect. Thus, under this holding of Spokane County,

it may be challenged under LUPA.

       Finally, the purpose of the distinction between site-specific and legislative actions

counsels that Ordinance 3067 is subject to review under LUPA. Our Supreme Court has

cautioned against overreliance on writ of certiorari case law in interpreting LUPA. Chelan

County v. Nykreim, 146 Wn.2d 904, 930, 52 P.3d 1 (2002). Nonetheless, it seems transparent

that the fault line between site-specific approvals that may be challenged under LUPA and

legislative approvals that go to the Growth Management Hearings Board runs parallel to the

divide before LUPA between adjudicatory or quasi-judicial decisions subject to the writ and

legislative decisions that are not. See, e.g., Westside Hilltop Survival Comm. v. King County, 96

Wn.2d 171, 634 P.2d 862 (1981); Parkridge v. City of Seattle, 89 Wn.2d 454, 573 P.2d 359

(1978); and Raynes, supra.

       Our Supreme Court has recognized that

               [d]etermining that an action is legislative or adjudicatory is more than a
       matter of semantics; different consequences follow such a determination.
       Legislative action is far more impervious to review than is adjudication. The
       “arbitrary or capricious” standard which legislative actions must meet is not nearly
       as stringent or exacting and is difficult to prove. Adjudicatory functions must also

                                                16
No. 47900-1-II


        meet the “clearly erroneous” or “substantial evidence” tests, as well as negotiate
        the due process hurdles of “notice”, “hearing”, and the “appearance of fairness”.

Westside Hilltop, 96 Wn.2d at 176. Similarly, in Parkridge, 89 Wn.2d at 460, the court noted

that

        [i]n a rezone action, adjudicatory in nature, the required relationship to the public
        interest is not to be presumed as it would be in an original comprehensive zoning
        action by the city council, which we have held to be legislative in nature.

        These distinctions, in a word, recognize that adjudicatory or site-specific actions by their

nature merit a more searching review than do legislative ones. The more an action resembles the

work of a court, the more it involves specific parties and a specific tract, Cathcart-Maltby-

Clearview Community Council v. Snohomish County, 96 Wn.2d 201, 212, 634 P.2d 853 (1981),

and the more it involves application of existing law to the facts rather than a response to

changing conditions through the enactment of a general law of prospective application, Raynes,

118 Wn.2d at 244-45; then the more it calls for the scrutiny given adjudications, rather than the

deference given legislation.

        Whether a rezone is proposed by a property owner, a neighbor or the local government

has little to do with these distinctions. If, as here, the rezone is confined to a specific tract, is not

an implementation of a comprehensive plan amendment, is not a text amendment applicable

generally to a zoning district, involves the application of existing law to fact, and is made in the

context of a specific development proposal, it is adjudicatory and merits the type of review

reserved for administrative adjudications.

        Similarly, we should not conclude that by using the term “application” in RCW

36.70C.020(1) the legislature intended to abandon these distinctions for measures proposed by a

governmental entity. Such a conclusion would sacrifice long-standing case law designed to

                                                   17
No. 47900-1-II


ensure the proper type of review on the doubtful basis of a single term capable of a range of

meanings. This doubt is underlined by Spokane County’s use of “request,” not “application” in

its description set out above of a site-specific rezone. 176 Wn. App. at 570.

         Ordinance 3067 should be subject to the type of review reserved for adjudications. That

review is afforded by the standards of LUPA, not by those of the Growth Management Review

Board.

         For these reasons, the superior court correctly denied the City’s motion to dismiss based

on its claim that the ordinance was not a “land use decision” subject to review under LUPA. We

should proceed to the merits of the City’s appeal of the superior court’s decision.




                                                      Bjorgen, C.J.




                                                 18
