6 NICS App. 120, GOBIN v. TULALIP TRIBES (April 2003)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP TRIBES OF WASHINGTON

TULALIP, WASHINGTON

Kim Gobin, Appellant,

v.

Tulalip Tribes of Washington, Respondents.

No. TUL-Ci-12/00-420 (April 3, 2003)

SYLLABUS^*

Trial court, sitting in its appellate capacity, affirmed tribal Board of Director’s denial of a permit for a Planned Residential Development because the development was not consistent with the Tribe’s Comprehensive Plan. Developer appealed the ruling, claiming error on the merits and denial of due process. Tribe cross-appealed, claiming trial court committed multiple evidentiary and procedural errors and exceeded its authority by ordering disqualification of voting members of the Board. Court of Appeals holds that (1) trial court erred in relying on Comprehensive Plan because where inconsistencies exist between a comprehensive plan and a zoning ordinance, the zoning ordinance controls; (2) whether the Board of Director’s decision was arbitrary and capricious under the applicable Zoning Ordinance depended on whether the decision was supported by the recommendations and record developed by the Planning Commission and the Department of Community Development staff; (3) despite the failure of the staff to articulate a legally valid basis for permit denial in its formal findings of fact and conclusions, the report of the staff taken as a whole established that the proposed development was not consistent with the Zoning Ordinance; (4) a court may uphold an administrative decision of less than ideal clarity if the agency’s path may reasonably be discerned from the record; (5) the opportunity to apply for the permit and modify the permit application in response to staff concerns prior to a final decision satisfied due process requirements; (6) the record supported the trial court’s finding that the participation of at least one voting member of the Board of Directors presented an appearance of bias. Trial court order affirmed with remand to the Board of Directors for a new vote consistent with the opinion.

Before:            Lawrence Numkena, Chief Justice; Gregory M. Silverman, Justice; Richard A. Woodrow, Justice.

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Appearances:    G. Richard Hill, of Phillips McCullough Wilson Hill & Fisco, and Claudia Newman, of Bricklin & Gendler, for Appellant. A. Reid Allison III, Office of the Reservation Attorney, for Respondents.

OPINION

The present case involves cross-appeals by both parties below. The Appellant (Cross-Appellee) appeals the trial court’s order of March 7, 2002. The appellant appeals the trial court’s conclusions (1) that the Planning Commission and the Board acted lawfully in allowing the Comprehensive Plan to trump the Zoning Ordinance; (2) that the Planning Commission and the Board acted lawfully in denying Appellant’s proposed housing project on the basis that it is inconsistent with the Comprehensive Plan; and (3) that Appellant’s Tribal Economic and Indian Civil Rights did not serve as the basis for monetary damages. The appellant further argues that the “Board” acted in violation of Ordinance 92, Code of Ethics for the Tulalip Board of Directors, through the appearance of bias.

The Respondent’s (Cross-Appellant’s) appeal argues that: (1) the trial court erred by unlawfully assuming and enforcing a judicial power of disqualification of voting Board members in an action brought under TTT §80.39.3 of the Zoning Ordinance; (2) the trial court erred by unlawfully ordering individual members of the Board of Directors to abstain, taking no part in the discussion or voting on the action; (3) the trial court erred by admitting extra-record evidence; (4) the trial court erred by admitting inadmissible extra-record evidence; (5) the court erred by determining that meetings held pursuant to TTT §80.38.1 are “judicial in nature”; and (6) that the court committed an error of law by ruling that the Board Secretary must certify all administrative records in zoning appeals.

THE LAND USE AND ZONING ISSUES

The Appellant argues that the trial court committed two errors below. First, Appellant argues that the lower court erred when it held that the Tulalip Planning Commission and the Tulalip Board of Directors (“Board”) acted lawfully in allowing the Comprehensive Plan to trump the Zoning Ordinance. Second, Appellant argues that the Planning Commission and the Board acted lawfully in denying Appellant’s proposed housing project on the basis that it is inconsistent with the Comprehensive Plan. The Appellant further argues that her proposed Planned Residential Development (“PRD”) meets the requirement of the Tulalip Zoning Ordinance (“TZO”) and should have been approved as a matter of right. For the reasons set forth below, we affirm the judgment of the lower court.

Appellant is correct that where inconsistencies exist between the applicable zoning ordinance and a comprehensive plan, the more specific requirements of the zoning ordinance control. Citizens for Mount Vernon v. City of Mount Vernon, 133 Wash.2d 861 (1997); Hansen v. Chelan County, 81 Wash. App. 133 (Ct. App. 1996); Weyerhaeuser v. Pierce County, 124 Wash.2d 26 (1994); Cougar Mt. Assocs. V. King County, 111 Wash.2d 742 (1988). While no

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tribal authority exists on this point of law, state law is clear and may be relied upon pursuant to Tulalip Tribal Ordinance (“TTO”) 49. If the Tribe desires to require conformance to the targets set forth in the Tribe’s Comprehensive Plan, then it should amend the Tulalip Zoning Ordinance (“TZO”) to include those targets as requirements for approval under the relevant provisions of the Zoning Ordinance.

The Comprehensive Plan itself expressly acknowledges that it is merely a planning and guidance document that “shall be used as the basic source of reference and as a guide in reporting upon or recommending any proposed project, public or private, as to its purpose, location, form, alignment and timing.” Comprehensive Plan, Chapter 8, at 4 (emphasis added) quoted in Staff Recommendation, RZ/SD 99-006, at 2 (Staff Report on Kim Gobin 20-acre Rezone/Subdivision Application).

Nor does the language of TZO § 34 make the targets, goals and policies of the Comprehensive Plan mandatory. Subsection 34.3 (Subdivision Review) states that “[t]he Planning Board shall review all proposed subdivisions and make recommendations to the Board thereon with reference to approving or recommending any modifications necessary to assure conformance with the comprehensive plan goals, policies and objectives . . .” TZO § 34.3. Under this subsection, the Planning Board shall recommend “modifications necessary to assure conformance with the comprehensive plan.” Significantly, the scope of this subsection is limited to approving or recommending modifications: it does not state that the Planning Board shall, or even may, recommend the denial of an entire proposed subdivision on the sole grounds that it does not conform to the Comprehensive Plan. Accordingly, the relevant inquiry concerns whether Appellant’s Planned Residential Development (“PRD”) proposal satisfies the requirements of the Tulalip Zoning Ordinance, not the Comprehensive Plan.

Appellant argues that the decision of the Tulalip Board of Directors denying her proposed PRD was arbitrary and capricious and, therefore, unlawful. A proposed PRD is also referred to as a rezone in the Tulalip Zoning Ordinance. Paragraph 38.1(g) states that the Board’s “[d]enials of rezones, and approvals or denials of subdivisions, shall be by resolution.” TZO § 38.1(g). By Resolution No. 2000-403, on December 6, 2000, the Board denied Appellant’s proposed rezone and subdivision. Specifically, the Board resolved that “[a]fter discussing the proposed planning commission recommendations and reviewing correspondence and [sic], The Tulalip Board of Directors hereby approves, adopts and certifies Tulalip Planning Commission Recommendation 2000-08.” The Tulalip Tribes Resolution No. 2000-403 (December 6, 2000). Thus, to determine whether the Board’s action was arbitrary and capricious, we must consider the Planning Commission Recommendation approved, adopted and certified by the Board.

The Planning Commission set forth its recommendation for the Appellant’s rezone/subdivision request in the Tulalip Tribes Planning Commission Resolution No. 2000-008. Therein, it resolved that “[t]he Tulalip Planning Commission hereby recommends the Tulalip Board of Directors deny the proposed rezone and subdivision application for a Planned Residential Development (PRD).” Tulalip Tribes Planning Commission Resolution No. 2000-

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008 (October 11, 2000). Moreover, it further resolved that “[t]he Tulalip Planning Commission hereby adopts the Findings of Fact and Conclusions as set forth in the Tulalip Community Development Staff Recommendations for the Kim Gobin [i.e., the Appellant] rezone and subdivision as the basis for the commission’s decision.” Id. Accordingly, to determine whether the Planning Commission’s recommendation and, a fortiori, the Board’s denial, was arbitrary and capricious, we must consider the Staff Recommendations of the Tulalip Department of Community Development.

When we turn to the Conclusions set forth in the Staff Report of the Tulalip Department of Community Development, we discover that there are two and that both concern the inconsistency of Appellant’s proposed rezone and subdivision with the Comprehensive Plan. The first conclusion states in relevant part that “[t]he proposed development reflects a suburban development in character and is not consistent with the comprehensive plan text which explains that new development in this area should reflect a density of one dwelling unity per 5 acres.” Staff Recommendation, RZ/SD 99-006, § 12, at 8 (Staff Report on Kim Gobin 20-acre Rezone/Subdivision Application). Similarly, the second conclusion states, in relevant part, that “[t]he PRD as proposed by the applicant is inconsistent with the comprehensive plan language that specifically refers to the north central border area of the reservation.” Id.

Significantly, neither conclusion refers to the Zoning Ordinance. In particular, the DCD fails to mention § 21 of the Tulalip Zoning Ordinance. This provision states that “[w]here sewer is not available PRD densities shall not exceed 2 dwelling units per acre in any zone.” TZO § 21.5. This requirement specifically concerned with PRDs directly conflicts with the more general requirement of the Comprehensive Plan that targets a density of one dwelling unit per 5 acres for rural areas. As already noted, where the Zoning Ordinance and the Comprehensive Plan conflict, the Zoning Ordinance controls. As a basis for decision in this matter, it is the proposed rezone and subdivision’s consistency with the Zoning Ordinance that is relevant, not the Comprehensive Plan.

Turning to the Findings of Fact contained in the Staff Report of the Tulalip Department of Community Development, we learn that there are eleven such findings. Finding No. 6 states that:

The application is for a rezone to Planned Residential Development (PRD). The PRD is a technique that could provide for small lots while still preserving open space and the rural character of the area.

Id. Finding No. 1 states that:

The proposed rezone and subdivision is located in a Rural Residential Zone. Base zoning (shown on the Tulalip zoning map) for this site requires 10-acres lots for new subdivisions.

Id. at 7. Finding No. 5 states that:

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The area to the west of the property is primarily made up of residential homes on 5-acre lots. To the south and east of the proposed development, the land is largely undeveloped, consisting of lots that are 20 acres in size.

Id. at 8. Finding No. 2 states that:

Section 12.0 of the zoning code states that the purpose of the Rural Residential zone is ‘to preserve the rural character of the outlying and sparsely populated areas as a transition zone between undeveloped lands and already developed areas.’

Id. at 7. The remaining Findings of Fact (Nos. 3, 4 and 7) all concern the Comprehensive Plan.

It is not obvious how, if at all, these Findings of Fact support a denial of the proposed rezone and subdivision. Subsection 21.3 of the Zoning Ordinance states that “PRDs may be approved in: * * * Rural Residential” areas. Accordingly, on their face, neither the Conclusions, nor the Findings of Fact indicates how the proposed PRD fails to meet the requirements of the Zoning Ordinance. Indeed, if we limited ourselves to a review of the Findings of Fact and Conclusions set forth in the DCD Staff Report, adopted first by the Planning Commission and then by the Tulalip Board of Directors, we would be forced to agree with the Appellant that the denial of this proposed rezone and subdivision is arbitrary and capricious.

In the present case, however, it would be an unjust myopia to limit our review to the Findings of Fact and the Conclusions expressly adopted by the Planning Commission and the Board of Directors. The Finding of Facts and Conclusions were but two sections from a lengthy Staff Report by the Department of Community Development. Clearly, the Planning Commission and the Board of Directors had carefully reviewed the entire Staff Report in forming their recommendation and decision. In this Court’s opinion, therefore, it is only an infelicity of drafting that suggests that the Planning Commission’s recommendation and the Board’s decision were based upon an inadequate portion of that report. If we look to the body of the Staff Report, we may discern the true and adequate ground of the Board’s decision.

While some might argue that this court should vacate and remand with instructions to the lower court to vacate the Board’s decision and remand thereto, it is equally clear that the Board would merely redraft its original resolution to incorporate by reference the entire Staff Report, add some clarifying commentary, and the problem with their decision would be resolved. Such formalistic exercises do not serve justice and squander limited tribal resources.

Nor do we believe that our decision to consider the body of the Staff Report is inconsistent with Beno v. Shalala, 30 F.3d 1057 (9th Cir. 1994). In Beno, the court held that “agency action must be upheld, if at all, on the basis articulated by the agency itself.” Beno v. Shalala, 30 F.3d at 1073-74. The court recognized that it nonetheless could "uphold a decision

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of less than ideal clarity if the agency's path may reasonably be discerned" Id. at 1073 citing Motor Vehicle Mfr. Ass'n v. State Farm Ins., 463 U.S. 29, 44 (1983). In the present matter, the path of the Department of Community Development may be reasonably discerned in the body of its Staff Report. The fact that the Planning Commission and the Board of Directors inadvertently failed to formally note their reliance on the entire staff report does not alter the fact that the basis of the agency action may be reasonably discerned therein. Accordingly, it is to the body of this staff report that we now turn.

Although the DCD focused primarily on the Comprehensive Plan, its concerns and observations are equally apposite to the requirements of the Tulalip Zoning Ordinance. Paragraph 34.4(e) of the Tulalip Zoning Ordinance states that “[a]ll subdivisions impacting environmentally and culturally sensitive land shall include protection measures consistent with the standards and requirements of this ordinance.” TZO § 34.4(e). Moreover, subsection 23.3 of the Tulalip Zoning Ordinance states:

Any proposed . . . subdivision approval for development which would impact environmentally sensitive lands shall be permitted only after the exact location of environmentally sensitive area(s) has been identified by the proponent of the development proposal, a review of impacts to the environmentally sensitive area(s) is completed and buffer requirements or other mitigation necessary for protection of the sensitive lands have been established by the Executive Director of the Department of Community Development consistent with this ordinance and the text, goals, objectives, and policies of the 1994 Tulalip Comprehensive Plan.

TZO § 23.3 (emphasis added). The definition of environmentally sensitive area(s) includes, inter alia, lakes. TZO § 23.2. Thus, before the proposed rezone and subdivision can be permitted, the DCD must determine the impacts to local lakes and establish buffer requirements or other mitigation necessary for their protection. According to the Staff Report, the DCD was unable to complete their review of the impacts of the proposed PRD to Lake Agnes or Mary Shelton Lake due to the failure of the Appellant to address these matters in its application. Staff Recommendation, RZ/SD 99-006, § 9, at 5 (Staff Report on Kim Gobin 20-acre Rezone/Subdivision Application). Apparently, this omission resulted from Appellant’s belief that the DCD would perform such an assessment. Id. The Staff Report notes, however, that:

[t]his is not the case. The burden of determining impacts to wildlife habitat and lake resources fall[s] on the applicant. The [Appellant’s] environmental assessment does state that the development will have no significant impact on surface and ground water. However, there is no discussion about how the applicant arrived at this decision, so staff is unable to follow the reasons for this statement Absent more information on this issue, staff is unable to conclude that the development will have no significant impact on lake resources.

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Id. Since the DCD was unable to conclude that the proposed rezone and subdivision will have no significant impacts on lake resources, then pursuant to subsection 23.3 it had to recommend denial of the proposed rezone and subdivision.

The DCD’s recommendation to deny the proposed rezone and subdivision in its Staff Report to the Planning Commission was not inevitable. DCD completed its Staff Report on August 21, 2000, but would not deliver it to the Planning Commission until the latter’s hearing on the proposed rezone and subdivision scheduled for September 1, 2000. By letter dated August 21, 2000, the DCD informed the Appellant that it could not recommend approval of the proposed PRD on the present record and invited the Appellant to seek a postponement of the Planning Commission hearing so that Appellant could work with the DCD to address the issues that caused the DCD concern. In particular, the DCD desired that the Appellant submit additional information on the proposed rezone and subdivision’s impact on environmentally sensitive area(s). The Appellant failed to seek a postponement of the Planning Commission hearing on the proposed PRD and only responded to the DCD’s letter on August 31, 2000, the day before the hearing. Appellant’s response was a letter from her attorney and did not provide any additional information or data concerning the environmental impacts of the project.

Given the Appellant’s failure to submit sufficient data and information to permit the DCD to complete its review of the project’s impacts to environmentally sensitive area(s), including various lake resources, and the requirements of subsection 23.3 of the Zoning Ordinance, the Planning Commission and the Board of Directors had no option but to follow the recommendation of the DCD and deny the proposed rezone and subdivision.

One can also reasonably discern from the Staff Report a second reason why the DCD recommended denial of the rezone and subdivision. In Section 10 of the Staff Report, the DCD notes that “[p]er Section 21.5 [of the Zoning Ordinance], densities for the PRD shall be calculated as an average density over the development area.” Staff Recommendation, RZ/SD 99-006, § 10, at 6 (Staff Report on Kim Gobin 20-acre Rezone/Subdivision Application). The Staff Report then sets out the requirement under section 21.5 that “[w]here sewer is not available, PRD density shall not exceed two (2) dwelling units per acre in any zone.” Id. While the DCD does not elaborate the significance of this provision on its decision not to recommend the proposed PRD, an issue does exist whether the proposed PRD does in fact meet this requirement.

The Appellant’s proposed PRD involves 21.49 acres and 26 dwelling units in a Rural Residential zone. Consistent with the requirements of subsection 21.4 of the Zoning Ordinance, the Appellant’s proposal would establish fifty percent of this acreage as open space under a restrictive covenant adopted as part of plat approval and filed with the Tulalip Tribes and recorded with the Snohomish County Auditor. Subsection 21.4 refers to the area subject to the restrictive covenant as the open space/recreation area and notes that the “open space/recreation area shall be established through a restrictive covenant that places the burden of protecting and maintaining open space areas on the homeowners within the subdivision.” TZO § 21.4 (emphasis added).

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The next provision of the Zoning Ordinance is subsection 21.5 concerning the density requirements for PRDs. As already noted, it states that “[d]ensities for the PRD shall be calculated as an average density over the development area.” TZO § 21.5 (emphasis added). This occurrence of the phrase “the development area” is the first such occurrence of this phrase in section 21 of the Zoning Ordinance. The phrase is not defined in section 3, the definitions section, of the Zoning Ordinance; nonetheless, its use in subsection 21.5 strongly suggests that it is intended to exclude the open space/recreation area and refer to that part of the PRD land on which the dwelling units are actually constructed.

This interpretation of the phrase ‘development area’ is suggested by the fact that the application of the different density requirements contained in this subsection turn on whether the PRD has sewer available. If no sewer is available, then the density shall not exceed two dwelling units per acre. Clearly, the concern here is how many septic systems can function in the area of land on which the dwelling units are proximately constructed. In this regard, the existence of additional acreage on a distant part of the PRD is irrelevant; it will not affect the operation of the septic systems in the area of the PRD actually developed.

Under this analysis of the subsection 21.5, the development area is approximately 10.75 acres (one half of 21.49 acres) and, a fortiori, the maximum number of dwelling units that can be constructed consistent with subsection 21.5 is 23 (twice 10.75). As these calculations demonstrate, therefore, the proposed rezone and subdivision also fails to meet the density requirements of subsection 21.5 of the Zoning Ordinance.

For the foregoing reasons, we hold that the decision of the Tulalip Board of Directors to deny the Appellant’s rezone and subdivision was not arbitrary and capricious, or unlawful.

CIVIL RIGHTS

The court having reviewed the record does not find that there was a violation of civil rights. The appellant was afforded the opportunity to apply for zoning approval of a proposed planned residential development. The appellant was not barred from modifying her application to comply with the zoning ordinance. All procedural processes have been afforded the appellant, “not all situations calling for procedural safeguards call for the same kind of procedure,” Morissey v. Brewer, 408 U.S. 471(1972), “All that is necessary is that the procedures be tailored, in light of the decision to be made, to the capacities and circumstances of those who are to be heard,” Mathews v. Eldridge, 424 U.S. 319 (1976).

ETHICS

This court finds that there was an appearance of bias. The Board had knowledge of Director Williams’ personal bias through Attorney Hill’s letter of December 6, 2000. Director

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Williams should have abstained from voting per Ordinance 92, Section 3.2(iv). The section reads:

(iv)    losing or compromising independence or impartiality of action.

We affirm the trial court’s findings that Director Williams was in violation of Ordinance 92.

ORDER

Therefore, based on the foregoing, this matter must be remanded to the Board for a vote on the appellant’s application consistent with this opinion.

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The syllabus is not a part of the Court's Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this Reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.