Cooke v. City of East Wenatchee, Ct. of Appeals Div. III Case No. 25376-7-III (unpublished opinion)*

Saturday, April 14, 2007

* This post is published here under the Creative Commons License. The post was authored by Keith Ganey and originally published to his blog at Ganey is a 2008 graduate of the University of Washington School of Law.


The Division Three panel applied the wrong standard of review and may have reached the wrong result in reviewing a variance dispute.

Clark Cooke owns Lot 31 in the Briarwood Subdivision of East Wenatchee. Lot 31 is 12 acres in area and has express approval in the CCR for further subdivision of the land. Mr. Cooke sought to exercise that provision and divide his lot into land for three homes. He proposed that the new houses would be accessed by a private access easement and therein lays the problem.

The East Wenatchee Municipal Code requires new lots to have public street access and 70 feet of public street frontage. In order to qualify for a variance from this requirement, the landowner has to show that there are geographical constraints that make compliance unusually burdensome in his case.
2.  That such variance is necessary, because of special circumstances relating to the size, shape,  topography,  location or surroundings of the subject property,  to provide it with use rights and privileges permitted to other properties in the vicinity and in the zone in which the subject property is located.
The language is identical to that used many Washington cities.

The East Wenatchee review board twice denied Mr. Cooke’s request for the variance twice, only providing a formal opinion the second time. The formal opinion is on review here. The city department’s report to the board included statements that the situation did qualify under the variance standards.

The opinion is too short to review effectively, but the Court of the Appeals improperly switched the burden of proof in its analysis. Instead of examining the record to see if substantial evidence supported the Board’s denial of the variance, the court reviewed the record to see if substantial evidence supported the trial court’s grant of the variance.

Looking over the lot in question, emergency access looks like it could be a problem. Without street frontage, it is harder for emergency responders to find their destination. Without a public street, the fire trucks generally have to back out instead of turning around. The road in question does not look amenable to either backing out or to seeing the homes in danger.

See also: Subdivision Map (click second link); Google Map


Thurston County v. W. Wash. Growth Mgmt. Hearings Bd., Court of Appeals Div. II, 137 Wn. App. 781, Case No. No. 34172-7-II (Apr. 3, 2007)*

Tuesday, April 3, 2007

* This post is published here under the Creative Commons License.  The post was authored by Keith Ganey and originally published to his blog at  Ganey is a 2008 graduate of the University of Washington School of Law.

Go to opinion


(1) Any person that comments on a part of a comprehensive plan may challenge the final plan in regard to that part.

(2) Every part of a comprehensive plan is open for challenge after a complete update, even if the those parts were left unchanged from the previous plan.

(3) In determining Agricultural Lands: parcel size may be considered, but the actual use of the land may not be relied on.

(4) If a jurisdiction draws its UGAs(“Urban Growth Areas”) assuming that some land within the UGAs will not be developed, then it must explain the basis of that assumption.

(5) Once resource and residential lands were removed, Thurston County failed to provide a variety of rural densities since all remaining lands were zoned for one residence every five acres. Relying on private action to maintain density variety is unacceptable.


Thurston County contested Futurewise’s (formerly 1000 Friends of Washington) successful challenge to the most recent update of the county’s comprehensive plan. Thurston was one of the county’s required to update its comprehensive plan during the first round of 7 year updates in 2004. See RCW 36.70A.130. Tim Trohimovich, an employee of Futurewise, provided both written and oral testimony during the update process, but was unsatisfied with the integration of his comments into the final plan. Futurewise prevailed in front of the Western Washington Growth Management Hearings Board (“WWGMHB”). Thurston County appealed.

First, Thurston County argued that Futurewise did not have the right to challenge the comprehensive plan since Mr. Trohimovich nor Futurewise resided on or owned property in the county. The county argued first that the absence of a physical connection prevented Futurewise, an outsider, from becoming involved. Next, the county argued that the legislature did not have the power to authorize such third-party challenges. The court was not persuaded by either of these arguments.

Second, Thurston County attempted to protect its plan by arguing that Futurewise had failed to present a timely challenge to the plan since it had challenged elements of the updated plan that were unchanged from the previous plan. The county argued that Futurewise should have challenged the sections when they were adopted into the previous plan. As the court notes, if the county were to prevail then plan updates would be a mere formality. A county would rarely, if ever, be forced to defend its plan after adopted the first time even though the situation might have greatly changed.

The other two arguments relate to the county’s provisions for rural lands. These sections were a split decision. Thurston County relied on the use and zoning of the lands in order to designate long term resource lands. The zoning can be used since it is government controlled, but the use can not. If the use was considered than land owners could game the system directly.   Furthermore, while the did not provide any real difference in zoning densities for rural lands, the WWGMHB did not force Futurewise to prove the insufficiency of the county’s innovative programs to achieve rural variety and thus the board’s decision is unsupported.


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