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Washington State Department of Corrections v. City of Kennewick

May 22, 1997


Appeal from Superior Court of Benton County. Docket No: 94-2-00819-3. Date filed: 02/12/96. Judge signing: Hon. Yancey Reser.

Order Granting Motion To Publish June 5, 1997. As Amended on Denial of Reconsideration of June 26, 1997,

Authored by John A. Schultheis. Concurring: Dennis J. Sweeney, Philip J. Thompson.

The opinion of the court was delivered by: Schultheis

SCHULTHEIS, J. Neighboring property owners opposed the Department of Corrections' (DOC) application for a conditional use permit for a work release facility in downtown Kennewick. They feared the facility would increase the incidence of crime in the area and decrease their properties' value. In this appeal, we are asked to decide whether the Kennewick Planning Director, in granting DOC the permit, properly rejected those fears as unsubstantiated. We hold he did. We also uphold, as supported by substantial evidence, his findings the facility will not be a detriment to uses conducted on surrounding property. We reverse the superior court's judgment to the contrary and remand to the City of Kennewick with directions to grant DOC's application for a conditional use permit.

In 1992, DOC appointed a Work Release Siting Committee to identify potential sites for a work release facility in the Tri-Cities. The committee included representatives from Kennewick, Richland and Pasco. It recommended that the cities and DOC negotiate criteria for picking the site and for selecting inmates to be housed in the proposed facility. A document titled "Interlocal Cooperation Agreement" was signed by the cities and DOC in September 1992.

The agreement provided that the committee would supply each city a list of qualified sites within its jurisdiction. From the list, each city would nominate one site. A "neutral expert" would then select a site for the work release facility from those nominated by the three cities. The agreement placed responsibility on DOC to "interact[[__ with the property owners, business persons, and residents who live near the selected site to secure public acceptance of the proposed Facility." Under the terms of the agreement, the facility would have no more than 40 beds. A local screening committee would review an offender's history before DOC sent him to the facility, and its determination on placement would be final.

The criteria for inmate placement included a provision that the facility would house "only those offenders with significant social, economic, or family ties within the Benton and Franklin counties community . . . ." The criteria excluded from placement offenders whose crime victim was particularly vulnerable, such as a child or an elderly person. The criteria also excluded class A sex offenders, and offenders who had committed any sex offense and who had a prior sex offense or violent offense.

Irv Berteig, a land use hearing examiner and former King County Planning Director, served as the "neutral expert" the agreement provided would make the final site selection. He selected the East Bruneau site in downtown Kennewick for location of the work release facility. DOC then applied to the City of Kennewick for a conditional use permit.

Under Kennewick's Municipal Code (KMC), section 18.80.020(A), the city planning director has the authority to approve all land use permits.

The code also establishes a framework for the planning director's decision.

In the case of applications for conditional use permits, the code states the director will issue the permit only if the use will not be materially detrimental to the public welfare or injurious to property or improvements in the vicinity. KMC 18.80.110(d)(1). KMC 18.75.330 applies when a governmental body seeks a conditional use permit for a penal institution, and the site is within one-quarter mile of a residential zone, any facility that serves children, or any facility that serves the elderly. In such situations, the code requires the planning director to make specific findings justifying the location, and to find the location is not detrimental to those uses before granting a permit. KMC 18.75.330.

In September 1993, the Kennewick Planning Director conducted a public hearing on DOC's application for a conditional use permit. At the hearing, DOC's position was presented in part by Mr. Berteig, the neutral expert. Mr. Berteig stated that locating the facility at the Kennewick East Bruneau site would not be disruptive to the surrounding commercial and industrial area, and that it was the best location in terms of the proximity of employment opportunities for inmates. In his written report, he recognized the existence of nearby residences and that "the logical walk between the facility and the nearest bus stop would pass through [[this__ cluster of . . . rental houses." He recognized, as well, that school bus stops exist in the immediate vicinity, and suggested working with the school district "to identify bus stop conflicts." Mr. Berteig stated there were no other facilities in the area serving vulnerable populations.

An attorney representing nearby residents and business owners who opposed building the work release facility at the East Bruneau address offered a report by Sumner Sharpe, also an expert in city planning and land use. Mr. Sharpe's report pointed out the public perceives work release facilities as increasing the risk of crime and adversely affecting residents, business owners, and business invitees.

The attorney for the site opponents stated Mr. Berteig ignored the fact that services and businesses for children and the elderly exist near the site of the proposed facility. One business, the Cable Greens Mini Golf Course, serves those populations and is located within one-quarter mile of the proposed site. Other businesses and services close to the work release site are the Elder Day-Care Center on Washington Street, one-half mile from the site; the Volunteer Center in the same building as the Elder Day-Care Center; and the Lampson Building, which houses senior services and is just outside the one-quarter mile radius. There are two school bus stops within two blocks of the proposed site, three more within one-half mile, and seven more within a mile. Layton Park and Keewadin Park, the location of the Kennewick Senior Citizens' Center, are within one mile.

The 1990 Interim Comprehensive Plan for Kennewick provides for a medium density residential zone within 1,000 feet of the site.

In response, DOC offered crime statistics from 1987 through 1992 for a 15-bed work release facility in Pasco. The failure to return rate for inmates at that facility ranged from 4 percent to 11 percent per year.

Lane Merryman was the supervisor of the Pasco work release facility for 14 years. He stated that the facility opened in 1972. It has since housed approximately 1,100 offenders. Sixty-eight percent of these completed the program. Twenty-three percent were terminated; i.e., they were returned to the institution for some sort of violation some technical, others serious.

Seven percent failed to return to the facility. Less than one percent of the total inmates committed new felonies while assigned to the facility.

DOC also relied on a memo from the American Planning Association and on an information brief from the United States Department of Justice. The memo stated that fears about correctional institutions are often based upon perceptions, not reality. Property values might decrease over the short term but rebound after initial fears are dispelled. The memo cited a 1985 study of Florida institutions that found that 94 percent of escaped inmates over a two-year period were recaptured, only four crimes committed by inmates had been reported since 1976, and most of them were automobile thefts. In another study, researchers found that escapees sometimes stole automobiles but did not commit violent crimes. The information brief provided an overview of a 1987 study that found that correctional facilities have no negative effects on property values, public safety, or the quality of life. DOC also relied upon Mr. Berteig's ...

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