Opinion
No. 37468-4-II.
April 7, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 07-2-12547-2, Serjio Armijo, J., entered March 3, 2008.
Affirmed by unpublished opinion per Van Deren, C.J., concurred in by Houghton and Hunt, JJ.
Robert Bonneville appeals the Pierce County hearing examiner's revocation of his 2004 Conditional Use Permit (CUP) that allowed Bonneville to conduct a Cottage Industry II in his Pierce County home.
Bonneville's former legal name was Wilhelm Elwanger and he has used the name Robert Thompson on at least one occasion. The name of Bonneville's cottage industry is The Waldmeister LP.
Pierce County Code (PCC) 18A.35.060(D)(5).
We affirm.
FACTS
Bonneville operates an appraisal business from his single family residence located on a one acre parcel of property within his 32 acres in unincorporated Pierce County in the Gig Harbor area. The property is zoned Rural 10 (R10).
R10 zoning applies to certain rural areas of Pierce County. Property owners within R10 zones are permitted to use the land for single family, two family, and mobile homes without obtaining a permit. PCC 18A.17.020.
In 1999, the Pierce County Planning and Land Services Department (PALS) received a complaint "regarding a business being operated out of [Bonneville's] house with 10-12 cars parked there daily." Br. of Resp't at 2. PALS conducted a site inspection in 1999 and issued a cease and desist order in 2000. Bonneville applied for a nonconforming use permit in 2001, but the county denied the application because Bonneville could not establish the factual or legal basis of nonconforming rights.
Bonneville applied for a CUP on February 22, 2004, so that he could conduct a Cottage Industry II business at his home. As part of his application, Bonneville attached a floor plan indicating that he would conduct his business on the ground floor of his home in an area of 1473 square feet. He stated that his cottage industry would have two full-time employees, plus him and a secretary. He attached a signed right of entry agreement, allowing Pierce County personnel to enter the property "for purposes of inspection during the pendency of the described permit(s)/approval(s)." Admin. Record (AR) at 352.
On May 13, 2004, a Pierce County hearing examiner conducted a hearing on Bonneville's CUP application. The hearing examiner approved Bonneville's CUP application, subject to 15 conditions. The conditions challenged in this appeal are:
3. The applicant must apply for permits necessary within 60 days of the final decision of the Hearing Examiner Decision for a Conditional Use Permit (CUP) Cottage Industry II. Failure to obtain appropriate permits to reach conformance with conditions and/or regulations shall cause all approvals granted herein to become automatically null and voId.
. . . .
7. The business owner must live on the site for the continued activity of the business. If the business owner moves off the site, the business must be moved from the current residential site to another approved site or be closed. Hours of operation shall be limited to 8:00 a.m. to 5:00 p.m. on weekdays with no weekend activities at this site.
. . . .
10. The proposed Cottage Industry II shall not exceed 1,500 square feet (including accessory buildings) and shall be limited to the maximum of four non-residence employees.
11. The applicant shall allow Pierce County Staff to monitor the site to make sure that all conditions of approval are being adhered to[.] A right-of-entry agreement shall be signed by the applicant allowing staff unlimited and unfettered access to the site for inspection and monitoring purposes.
AR at 49-51. The hearing examiner's decision included an explanation of the appeal procedures under chapter 36.70C RCW. Bonneville did not challenge any portion of the 2004 hearing examiner's decision.
RCW 36.70C.040(1)-(2) states:
(1) Proceedings for review [of a land use decision] shall be commenced by filing a land use petition in superior court.
2) A land use petition is barred, and the court may not grant review, unless the petition is timely.
. . . .
(3) The petition is timely if it is filed and served on all parties . . . within twenty-one days of the issuance of the land use decision.
On August 25, 2004, PALS sent Bonneville a letter listing the items yet to be submitted for compliance with the July 1 decision. The letter notified Bonneville that he needed to submit the following before September 1, 2004, in order to be in compliance with condition 3 of the decision: (1) "[a] notarized Legal Right of Entry Agreement from Pierce County"; (2) "Change of Use application from the Pierce County Development Center"; (3) "[a]ll applicable Building Permits from the Pierce County Building Department"; and (4) "[a] Memorandum of Agreement form and attached documents from the Pierce County Planning Department. These items will need to be recorded with the Pierce County Auditor." AR at 193. Bonneville signed a memorandum of agreement and a right of entry agreement on August 31. He also submitted a building permit application on August 31. There is no evidence in the record that Bonneville applied for a change of use permit.
PALS project manager Marcia Greeson and PALS code enforcement officer Mark Luppino conducted a site visit at Bonneville's home on May 12, 2005. Greeson observed "too many vehicles" parked outside. Report of Proceedings (RP) at 28. She saw a young man working on a computer in an upstairs room, outside the business area and the square footage Bonneville had indicated in his application for the CUP and at the hearing on his application. Greeson noted that a hallway Bonneville did not include as business area in his application contained desks and computers
Greeson and Luppino conducted a second site visit on November 22, 2006, accompanied by Pierce County Deputy Sheriff Dan Wulick. Bonneville initially refused to allow them onto the property and they started to leave; then Bonneville invited Greeson, Luppino, and Wulick into the house and gave them a tour. Luppino observed 10 to 12 people in the house and Wulick observed 7 to 8 people. Luppino took a photograph of an in box with numerous names on it.
On December 28, 2006, Bonneville filed suit against Pierce County, the PALS project manager, the PALS enforcement officer, and Wulick. Bonneville accused the defendants of "enter[ing] into an agreement to deprive [him] of his constitutional rights including but not limited to his right to freely enjoy the use of his property." AR at 214. The superior court granted summary judgment in favor of the County and we affirmed that order. See Bonneville v. Pierce County, noted at 147 Wn. App. 1016, 2008 WL 4788247.
PALS applied for the revocation of Bonneville's CUP on February 14, 2007, based on Bonneville's noncompliance with condition 10 of the CUP. PALS attempted to conduct a third Page 5 site visit on March 1, 2007, but Bonneville denied the PALS officers access to the building.
PALS amended its application for revocation on March 23, 2007, alleging noncompliance with conditions 3, 7, 10, and 11. On March 26, 2007, Bonneville filed a motion for stay or continuation of the revocation hearing with the Office of the Hearing Examiner. He also moved for the recusal of the hearing examiner, for the suppression of testimony and evidence regarding the site visit, and to dismiss the application for revocation. The hearing examiner denied Bonneville's motions and conducted hearings on the PALS application on April 13 and June 14, 2007.
The hearing was originally set for March 28, 2007, and was continued to April 13. RP at 4.
At the hearings, Greeson testified that Bonneville violated condition 3 because his application had automatically expired on August 31, 2005, when he failed to submit requested materials to the Pierce County Health Department (DOH).
In response to Greeson's testimony regarding his failure to obtain permits, the following interaction took place:
[] BONNEVILLE: I did all that I was required to do under Condition 3. It says make application. It does not say I have to get it approved, only that I make application. PCC 18.100 says PALS has 120 days to rule on the application.
The fact that PALS did not act out on the application is not my fault. I never received any request from the Health Department or anyone else for more information.
. . . .
HEARING Just so I'm real clear, you are saying that you submitted
EXAMINER: your application . . . If [PALS] needed more information, they should have contacted you and nobody contacted you.
[] BONNEVILLE: Within 120 days.
AR at 410-11. On cross-examination by the County, Bonneville stated, "I can do nothing more than apply for the permits. Whether they get issued by the County, that's not my duty." AR at 448. The following exchange ensued:
[PROSECUTOR:] did you obtain permits?
[BONNEVILLE:] I don't know what obtain means. Applying means obtain to me.
[PROSECUTOR:] Is it your understanding that applying for permits is the same as obtaining permits?
[BONNEVILLE:] Applying for a permit and following through with all of the requests to obtain that permit is all I can do.
. . . .
[PROSECUTOR:] did you obtain the permits you applied for?
. . . .
[BONNEVILLE:] did I get a paper delivered to me saying you now have a permit? No.
AR at 448-49.
Greeson testified that Bonneville had violated condition 7 because there was evidence that he had not been in continual residence at the site. She cited to a statement by a former Bonneville employee, Hillary Brocenos, who said that Bonneville resided with his girlfriend, Patricia Prokop, from at least November 2003 to July 2005. Bonneville responded, "I live in this home. It is my personal residence. I have not lived anywhere else for any duration of time for 25 years. If I went somewhere else for training or whatever, I always maintained that home and that residence, or a portion thereof, for my home." AR at 418.
Greeson testified that Bonneville had violated condition 10 because he exceeded the CUP's square footage and employee limitations. She and Luppino attempted to make three site visits following the hearing examiner's order granting Bonneville the CUP.
During each of the three site visits, staff observed areas of the home that were not shown on the submitted floor plan being used for business purposes[.] More than four individuals, who identified themselves as employees, were observed at each visit. [PALS] would estimate that approximately seven to twelve people were on the premises during the site visits.
AR at 408. Greeson cited to a statement by Brocenos that from 2003 to 2005 Bonneville had at least 16 employees. Luppino testified that he observed 15 work stations and that there were "areas that had potential of being work areas" on the upper level of the house. AR at 493. The County submitted evidence that various independent contractors used Bonneville's address to register their business licenses. Greeson said that PALS has had "difficulty monitoring the site, verifying the number of employees, and observing the square footage being utilized as a business." AR at 409.
Brocenos also stated that Prokop asked her to hide under a desk during the first site visit, Bonneville lied to PALS about whose cars were parked in the parking area, and Bonneville generally directed most of his employees to park at Prokop's house.
During cross-examination, Bonneville asked Greeson and Luppino if they had measured the rooms during any of the site visits; both testified they had not. Greeson stated that she never measures homes during site visits. "We rely on site plans that are submitted and floor plans." AR at 522. Bonneville asked Greeson and Luppino whether they had questioned any of the people at the site to determine whether they were employees. Luppino stated that he had not taken the names of anyone at the site because he was taking pictures. Greeson said she did not question anyone at the house during the second site visit, except to ask their names and whether they worked for Bonneville; when she did ask, the people "didn't say 'I'm an independent contractor.' They said they were an employee." AR at 527.
Upon further cross-examination by Bonneville, Greeson seemed to indicate that only one person affirmatively identified herself as an employee.
Bonneville argued that he was not in violation of the square footage requirement because the original proposed 1438 square feet included a room on the upper level of the home and, because they never used that room for business, "I was a whole room shy of the 1438 square feet based on our initial agreement." AR at 417. He claimed that the agreed square footage was "floating," so that "although initially we agreed on certain areas, it is the total square footage" that is restricted and not the specific areas of the home. AR at 476, 464.
On the same page of Bonneville's testimony, however, he states that the upstairs room "was just designated in case I ever needed to expand beyond the 1438 square feet." AR at 417. This testimony contradicts his testimony that the upstairs room was part of the original square footage approved in 2004. This testimony also conflicts with Bonneville's Cottage Industry II application, which calculated the anticipated square footage as 1473 square feet.
In response to Greeson's testimony about the number of employees, Bonneville argued that many of the people observed by PALS were not employees. "There are not more than four nonresidential employees ever there. I have two full-time employees." AR at 419. He stated that part of his business was to deal with customers, and
sometimes they have to come to my residence, people other appraisers that I work with, that we share certain things with, they have to come there to drop off files, pick up files, pick up assignments, upload their assignments, pull research. They are there maybe . . . sometimes they don't come for a month, then they may have an assignment in my area that they need research for that they can't pull in their area — they pop in for an hour and they are my customers. We have fee-sharing agreements.
AR at 419. He noted that "Patricia Prokop, my significant other, and her daughter are sometimes at my place." "[W]e are going to have to define who is an employee and who isn't." AR at 419. "Nowhere in the submissions made by the County did they attempt to define who an employee is, nor did they present a list of employees." AR at 420.
Finally, Greeson testified that Bonneville violated condition 11, which required Bonneville to "allow Pierce County staff to monitor the site to make sure that all conditions of approval are being adhered to." Greeson explained that on each of the site visits, "Bonneville initially would refuse to allow Pierce County staff access to the building with different excuses. After a period of delay, he would ask staff to come in." She added, "Mr. Bonneville has been very argumentative with [PALS] staff when asked questions, and as a result [PALS] staff has requested a police escort when a site visit is indeed needed." AR at 408-09.
Bonneville responded that the second search of his home was "a police raid [b]y any stretch of the imagination." AR at 420-21. He stated that the CUP condition allowing "unfettered, unmitigated, night or day access to my personal residence, my bedrooms, my bathrooms, my entire property is . . . entirely unconstitutional." AR at 418. But he admitted that he had signed the agreement and that he had not complied with the condition allowing access. He also admitted that he had not appealed the 2004 decision, which he agreed was a final decision.
Bonneville also argued that "the right of entry agreement that [PALS] typically issue[s] to people applying for these types of permits . . . reads different[ly]" than the one he signed. AR at 435-36. The County explained that the agreement Bonneville submitted as an example of the typical agreement was the result of a 2004 ordinance that did not come into effect until 2005.
The hearing examiner found that Bonneville was in violation of conditions 3, 10, and 11 and revoked Bonneville's CUP. He found that there was insufficient evidence that Bonneville did not continuously reside at the property and, therefore, found him in compliance with condition 7. The hearing examiner noted, "The Examiner finds that the credibility of the witnesses was paramount in making the Decision. The Examiner did not find Robert Bonneville credible." Clerk's Papers (CP) at 19. The superior court affirmed the hearing examiner's decision.
Bonneville appeals.
ANALYSIS
I. Standard of Review
"The Land Use Petition Act [LUPA], chapter 36.70C RCW, governs judicial review of land use decisions." J.L. Storedahl Sons, Inc. v. Cowlitz County, 125 Wn. App. 1, 6, 103 P.3d 802 (2004). When reviewing an administrative decision, we stand in the shoes of the superior court. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000). We, therefore, limit our review to the record before the hearing examiner. HJS Dev., Inc. v. Pierce County, 148 Wn.2d 451, 483-84, 61 P.3d 1141 (2003). We may grant relief to Bonneville, "as the party seeking relief under LUPA, only if [he] establishes one of RCW 36.70C.130(1)'s six standards." Quality Rock Products, Inc. v. Thurston County, 139 Wn. App. 125, 132, 159 P.3d 1 (2007), review denied, 163 Wn.2d 1018 (2008). These standards include:
(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). The petitioning party continues to carry the burden of proof on appeal. See Pinecrest Homeowners Ass'n v. Glen A. Cloninger Assocs., 151 Wn.2d 279, 288, 87 P.3d 1176 (2004).
"Standards (a), (b), (e), and (f) present questions of law we review de novo. Standard (c) concerns a factual determination that we review for substantial evidence." Peste v. Mason County, 133 Wn. App. 456, 466, 136 P.3d 140 (2006) (citations omitted), review denied, 159 Wn.2d 1013 (2007); Freeburg v. City of Seattle, 71 Wn. App. 367, 371-72, 859 P.2d 610 (1993). Standard (d) "involves applying the law to the facts." Peste, 133 Wn. App. at 467. "Under th[e clearly erroneous] test, we determine whether we are left with a definite and firm conviction that a mistake has been committed." Cingular Wireless, L.L.C. v. Thurston County, 131 Wn. App. 756, 768, 129 P.3d 300 (2006).
II. Continuance and Recusal Requests
Bonneville argues that the hearing examiner should have granted his motions to continue the hearing and to recuse due to bias. We review decisions on continuance and recusal for an abuse of discretion. See Colwell v. Holy Family Hosp., 104 Wn. App. 606, 615, 15 P.3d 210 (2001); In re Marriage of Farr, 87 Wn. App. 177, 188, 940 P.2d 679 (1997). A trial court abuses its discretion if it "exercised its discretion on untenable grounds or for untenable reasons" or if the discretionary act was "manifestly unreasonable." Lindgren v. Lindgren, 58 Wn. App. 588, 595, 794 P.2d 526 (1990).
Bonneville only mentions the continuance in relation to the hearing examiner's bias. "[T]his court will not review issues for which inadequate argument has been briefed or only passing treatment has been made," but we address it briefly. State v. Thomas, 150 Wn.2d 821, 868-69, 83 P.3d 970 (2004).
A. Continuance Request
Bonneville argues that the hearing examiner should have "allow[ed] a pro se litigant a continuance to allow him to prepare for the hearing" because there was "no objection by the County." Br. of Appellant at 1. Bonneville asked for a continuance, arguing that he had insufficient notice of the County's amended application for revocation and that the amendment had not been properly published. The County responded that it had provided Bonneville with sufficient notice of the amendment. The County also noted that "[t]his matter was continued once already[,] there is absolutely no basis that [Bonneville] has shown in order to have it continued again." AR at 403.
In deciding to deny Bonneville's motion, the hearing examiner stated, "We had the prehearing conference. We did continue this once. I think you are aware of the issues. So we are going to proceed." AR at 404. The hearing examiner provided reasonable grounds for his decision to deny Bonneville's motion to continue the hearing. We do not discern an abuse of discretion in doing so, as the decision was not based on untenable grounds nor made for untenable reasons. We hold that the decision to proceed with the hearing, following one continuance and a prehearing conference, did not constitute unlawful procedure or fail to follow a prescribed process. As such, it was not manifestly unreasonable and the hearing examiner did not err.
B. Recusal Request
Bonneville argues that the hearing examiner should have recused "based on his apparent unfair prejudice toward Mr. Bonneville." He argues that the hearing examiner conditioned the 2004 CUP on Bonneville's consent to "a gross waiver of his constitutional right to be secure in his own home." In 2004, the hearing examiner also stated that "he did not believe Mr. Bonneville would adhere to the conditions of the approval." Br. of Appellant at 8. Finally, he argues that the hearing examiner displayed bias when he "found [] Bonneville wholly unbelievable" in his 2007 decision revoking Bonneville's CUP. Br. of Appellant at 7-8.
"Due process [and] the appearance of fairness doctrine . . . require a judge to disqualify himself if he is biased against a party or if his impartiality may be reasonably questioned." State v. Dominguez, 81 Wn. App. 325, 328, 914 P.2d 141 (1996). "[I]n the context of administrative proceedings, the appearance of fairness doctrine exists in tension with the presumption that public officials will properly perform their duties." Nationscapital Mortg. Corp. v. Dep't of Fin. Insts., 133 Wn. App. 723, 759, 137 P.3d 78 (2006). To overcome this presumption, the party invoking the appearance of fairness doctrine must present evidence of actual or potential bias. Magula v. Dep't of Labor Indus., 116 Wn. App. 966, 972, 69 P.3d 354 (2003).
"After a claimant presents sufficient evidence of potential bias, we consider whether the appearance of fairness doctrine was violated." In re Marriage of Wallace, 111 Wn. App. 697, 706, 45 P.3d 1131 (2002). "The test is whether a reasonably prudent and disinterested observer would conclude [that the claimant] obtained a fair, impartial, and neutral trial." Dominguez, 81 Wn. App. at 330.
A party challenging a land use decision must appeal that decision within 21 days. RCW 36.70C.040(3). Bonneville did not appeal the hearing examiner's 2004 decision. Therefore, we do not consider Bonneville's claim of bias arising from the 2004 decision. We review de novo only the hearing examiner's alleged bias in 2007.
Bonneville claims that the hearing examiner was biased in 2007 because he found that Bonneville was not credible. But we review factual issues under a substantial evidence standard. In re Huddleston, 137 Wn.2d 560, 568, 974 P.2d 325 (1999); Schofield v. Spokane County, 96 Wn. App. 581, 586, 980 P.2d 277 (1999). And we give deference to the hearing examiner's determinations of credibility. Huddleston, 137 Wn.2d at 568.
Here, we hold that Bonneville has failed to show sufficient evidence of actual or potential bias by the hearing examiner; thus, we are not compelled to examine whether the hearing examiner's refusal to recuse violated the appearance of fairness doctrine. We, therefore, hold that the hearing examiner did not err in refusing Bonneville's motion to recuse.
III. Violations of CUP Terms
Without citation to authority or to the applicable standards under RCW 36.70C.130(1), Bonneville next argues that we should vacate the hearing examiner's decision revoking his CUP based on Bonneville's violation of conditions 3, 10, and 11.
Bonneville argues that the decision was unconstitutional because it was based in part on condition 11 of the CUP, which required unconstitutional access. He claims that the hearing examiner's findings were "not supported by substantial evidence" and that the hearing examiner exceeded his authority and erroneously applied the law when he "expand[ed] the legal definition of employees to also include independent contractors." Br. of Appellant at 2.
Bonneville also argues that the hearing examiner's consideration of independent contractors was "an erroneous interpretation of the law." Br. of Appellant at 29 (emphasis omitted). Because Bonneville failed to assign error based on this challenge, we do not reach this challenge. RAP 10.3(a)(4).
A. Bonneville Waived his Constitutional Challenge to the CUP
Bonneville argues that "[t]he land use decision violates [his] constitutional rights[,] in that the hearing examiner subjected [him] to submit to a gross violation of his constitutional rights to privacy, to be safe and secure in his property, and not to have his home violated with warrantless searches." Br. of Appellant at 29-30 (emphasis omitted).
To have standing under LUPA, a petitioner must first have exhausted his administrative remedies. RCW 36.70C.060(2)(d). This requirement applies even with regard to constitutional issues. Harrington v. Spokane County, 128 Wn. App. 202, 210, 114 P.3d 1233 (2005). Under LUPA, a petitioner must "fil[e] a land use petition in superior court within 21 days of the land use decision, and a land use petition is barred unless it is timely served and filed." Post v. City of Tacoma, 140 Wn. App. 155, 165, 165 P.3d 37 (2007), review granted, 163 Wn.2d 1038 (2008). During the 2007 hearings, Bonneville admitted he had not appealed the CUP or the right of entry agreement within 21 days of the hearing examiner's 2004 decision. Therefore, Bonneville waived his challenge to the constitutionality of the unfettered access language in the CUP.
Even if Bonneville had not waived the constitutional issue, Bonneville consented to the unfettered access condition of the CUP. He submitted a right of entry agreement with his CUP application. At the 2004 hearing, Bonneville stated that "the county's welcome to come [to his property] any time." AR at 128. "If you come up with a schedule of inspections, be it routine or random, I will . . . meet that schedule at any time." AR at 149. He signed the right of entry agreement containing the "unfettered" language. Additionally, he granted access to the property for the first two site inspections.
Furthermore, we previously found that Bonneville consented to the access. See Bonneville, noted at 147 Wn. App. 1016, 2008 WL 4788247 at *5-6.
We find that Bonneville waived his challenge to the constitutionality of the CUP and, therefore, this challenge fails.
B. Substantial Evidence Supports Revocation for Violation of Conditions 10 and 11
Bonneville argues that "hearing examiner's decision is contrary to the evidence and not supported by substantial evidence." Br. of Appellant at 2. We review the hearing examiner's findings that Bonneville violated conditions 3, 10, and 11 for substantial evidence.
We do not review his claim that substantial evidence did not support a finding that he violated condition 7 (failure to live at the house) because the hearing examiner did not revoke the CUP based on violation of condition 7.
"Substantial evidence is evidence that would persuade a fair-minded person of the truth of the statement asserted." We defer to the fact finder and "consider all of the evidence and reasonable inferences in the light most favorable to the party who prevailed in the highest forum that exercised fact-finding authority." Cingular Wireless, 131 Wn. App. at 768. We reserve credibility determinations for the fact finder and do not review them on appeal. Storedahl, 125 Wn. App. at 11.
Based on application of these standards, we hold that Bonneville violated at least two of the CUP conditions. We further conclude that violation of even one of the requirements constitutes sufficient evidence supporting the hearing examiner's decision to revoke the 2004 CUP.
1. Condition 10: Square Footage and Number of Employees
a. Square Footage
Bonneville argues that "there is no evidence that [he] exceeded 1,500 square feet of space," Greeson "produced a [floor] plan previously rejected," and Greeson "never actually measured the areas." He also notes that, while Greeson may have observed 15 workstations, she "never saw any of them in use." Br. of Appellant at 24.
PALS and Bonneville disagreed about which floor plan Bonneville submitted with his CUP application and about which floor plan PALS ultimately approved. Greeson and Luppino testified that they had not measured the property during any of the site visits. Greeson stated that during the site visits, "[PALS] staff observed areas of the home that were not shown on the submitted floor plan being used for business purposes." AR at 408. On the first site visit, she saw a young man working at a computer on the second floor and, during the second site visit, she saw a hallway that was being used for two additional work stations.
During the July 14 hearing, however, Greeson testified that the layout of the work areas was the same during all of her visits.
The hearing examiner found Greeson particularly credible with regard to the square footage. He noted, "The testimony from Marcia Greeson was particularly compelling. . . . She counted 15 workstations. The square footage used for business purposes exceeded 1,500 square feet." He added, "It was not the intent of the Hearing Examiner to allow this to be a floating business area." CP at 18.
We reserve credibility determinations for the fact finder and do not review them on appeal. Storedahl, 125 Wn. App. at 11. The County produced substantial evidence that use of Bonneville's house for his cottage industry exceeded the originally designated 1,500 square feet. We, therefore, affirm the hearing examiner's finding that Bonneville was in violation of condition 10.
b. Number of Employees
Bonneville argues that "[t]here is no evidence [he] ever had more than four employees" and that the Pierce County Code "does not allow the hearing examiner to include independent contractors as employees." He argues that because the Pierce County Code does not define "employee" and, because the people observed were independent contractors and others, there was not sufficient evidence to prove that Bonneville had more than four employees. Br. of Appellant at 21-22 (emphasis omitted). He notes that "[t]he only evidence relevant to this issue is the testimony of county employee [] Greeson." Br. of Appellant at 24. But Bonneville misstates the totality of the evidence on the number of employees.
Greeson testified that she observed more than four employees on the site during each of the site visits and that she observed "as many as 15 workstations." AR at 409. This is consistent with the statement of Bonneville's former employee Brocenos, who stated that Bonneville had at least 16 employees during the course of her employment. Greeson observed approximately 7 to 12 people during the first and second site visits. Luppino observed approximately 10 to 12 people during the second site visit. He also observed 15 workstations.
Although Luppino testified that he photographed an in box with various names on it, we do not find this indicative of the number of employees in light of evidence that other appraisers or contract workers dropped off and picked up work at the offices.
Pierce County Code (PCC) 18A.35.060 states that, "upon issuance of a Conditional Use Permit," Cottage Industry II's are limited to "[f]our non-resident employees." PCC 18.35.060(D)(5). The Code does not define "employees." Bonneville's cottage industry application includes two separate blanks for employees and independent contractors as follows:
This/these business(es) employ(s) ____ people. There are ____ independent contractors associated with this/these business(es).
AR at 354. Bonneville indicated on his application that he would have four employees and that there were only two independent contractors associated with his business.
Even without a code definition of "employees" showing that it is intended to include independent contractors, there was substantial evidence that Bonneville had more than four employees. Greeson and Luppino observed 15 workstations and Broceros observed approximately 16 employees while working for Bonneville, which is consistent with Greeson's and Luppino's observations. We hold that there was substantial evidence to show that Bonneville had more than four nonresident employees in violation of condition 10. Bonneville's challenge fails.
Furthermore, Bonneville suggested during the 2004 hearing that he was not considering independent contractors as employees.
We affirm the hearing examiner's revocation of Bonneville's CUP based on his violation of condition 10.
2. Condition 11: Access to Site
The hearing examiner found that because Bonneville had not appealed the 2004 decision, he "[wa]s therefore required to abide by the conditions contained within the original Decision." He found that Bonneville's "abusive and hostile behavior is a violation of the agreement. He would not let the individuals on to the site without causing problems, and therefore, violated condition 11." CP at 19.
Bonneville admitted at the hearings that he did not comply with condition 11. Furthermore, Greeson, Luppino, and Wulick all testified that Bonneville refused to give them access to the property and that Bonneville was argumentative with PALS staff.
Because there is substantial evidence that Bonneville violated condition 11 of the CUP, Bonneville's challenge to the hearing examiner's decision that he violated condition 11 fails. We, therefore, affirm the hearing examiner's revocation of Bonneville's CUP based on his violation of condition 11.
3. Condition 3: Failure To Obtain Permits
The hearing examiner found that Bonneville was in violation of condition 3 because "[a]lthough [he] did apply for necessary permits within 60 days of the final Decision, no approvals were ever granted. . . . [H]e present[ed] no evidence showing that he diligently attempted to obtain appropriate permits." CP at 18. Bonneville argues that he did not violate condition 3 of the CUP. "The evidence is uncontested that [he] did everything he was asked to obtain the permit" and that "the county, not [] Bonneville, was under the mandatory duty to issue the final notice of decision within 120 days." Br. of Appellant at 26.
Bonneville also states that "it is clear the county believed the permit had already been issued," citing to the Memorandum of Agreement (MOA). Br. of Appellant at 27 (citing AR at 55). However, the MOA refers to the approval of Bonneville's CUP, not approval of his building permit.
The County argues in response that Bonneville was not only required to apply for the permit but, under condition 3 of the CUP, he was required to obtain the permit. Furthermore, the County claims that no permit was issued because Bonneville failed to provide requested material.
The only evidence in the record on appeal relating to the issue of Bonneville's permit application is his August 31, 2004, application and a copy of four computer screens apparently showing the progress of Bonneville's application. At the hearing, Greeson stated that Bonneville had been sent a request for additional information from DOH but the letter was never entered into evidence. Bonneville testified that he had not received any such request.
Pierce County Code 18.100.010 states that the "[PALS] director or examiner shall issue a notice of final decision on a permit within 120 days of County review time, after the Department accepts a complete application." PCC 18.100.010. This timeline does not apply if the applicant and PALS mutually agree in writing to an extension of time. PCC 18.100.020(D). The time limit is also tolled if PALS or another county agency requests additional information or corrections from the applicant. See 18.100.020(A).
The first page of Bonneville's application contains the language, "This application will expire if you take more than 360 cumulative days to respond to requests for additional information." AR at 223. Therefore, it appears Bonneville's application would have expired if PCC 18.100.020(A) were in effect for more than 360 days. To trigger PCC 18.100.020(A), however, DOH would first need to request information from Bonneville within the 120 day timeline under PCC 18.100.010.
According to the record, DOH requested additional information from Bonneville on March 15, 2005. The Pierce County Code directs that any computation of time under chapter 18.100 should be based on calendar days. PCC 18.100.040. Therefore, assuming Bonneville's application was complete when filed on August 31, 2004, DOH did not request additional information within 120 days of Bonneville's application. Unless the application contained language extending the timeline, the request did not toll Bonneville's application in accordance with PCC 18.100.020(A) and his application did not expire under the 360 day clause in his application. For the 120 day timeline to begin, however, the application must be complete. PCC 18.100.010. If Bonneville failed to provide a complete application, the March 15 request from the Department of Health may have fallen within the 120 day timeline.
One hundred and twenty calendar days from August 31, 2004, was December 29, 2004.
Bonneville's building permit application may have contained a written agreement to an extension of time, in accordance with PCC 18.100.020(D), but the second page of Bonneville's application is missing from the record. Therefore, we assume that the application did not contain a written agreement to extend the Department's timeline. PALS was, therefore, required to issue a notice of final decision within 120 days, unless the time period was otherwise extended.
The only evidence presented to show that Bonneville's application was incomplete was Greeson's testimony that "[a] floor plan of the entire building was . . . requested by the Health Department," indicating that Bonneville did not submit the required information on August 31. AR at 406. Greeson does not otherwise state that the application was incomplete.
The computer screen states that on November 1, 2004, someone "[m]issed the initial review date" of October 30, 2004. AR at 226. This likely refers to the initial review requirements of PCC 18.60.020, which states, "All reviewing departments shall complete an initial review within 60 days from the application filing date for applications which do not involve a public hearing process." PCC 18.60.020(B). In addition, the screen shows that on December 29, 2004, "[t]he 1724 application deadline was missed." AR at 226. It is not clear whether this refers to the passage of the PCC 18.100.010 deadline, which occurred on that date. There is no indication in the record that Bonneville was required to submit a particular application by that date.
Bonneville applied for the permit within 60 days of the hearing examiner's decision, as the CUP required. Viewing the evidence in the light most favorable to the County, there is not sufficient evidence to suggest that Bonneville prevented the application from being issued or that his application was incomplete. Therefore, the hearing examiner abused his discretion in revoking the CUP on this basis. See Freeburg, 71 Wn. App. at 371-72. This error, however, does not alter our decision to affirm the hearing examiner's revocation of Bonneville's CUP on the other grounds we have outlined above.
C. Challenges to the Exercise of Authority and Application of the Law
Bonneville argues that the hearing examiner exceeded his authority and erroneously interpreted the law when he included independent contractors in the definition of employees. Because we have determined that there was substantial evidence that Bonneville employed more than four people, even without the inclusion of independent contractors, we do not reach the issue of the hearing examiner's alleged inclusion of contractors and Bonneville's challenge fails.
IV. ATTORNEY FEES
The County argues that it is entitled to reasonable attorney fees and costs under RCW 4.84.370(1). A prevailing party is entitled to its attorney fees on appeal if that party on appeal of a land use decision also prevailed before the agency and in the superior court. RCW 4.84.370(1); Baker v. Tri-Mountain Res., Inc., 94 Wn. App. 849, 854, 973 P.2d 1078 (1999).
RCW 4.84.370 states:
(1) . . . [R]easonable attorneys' fees and costs shall be awarded to the prevailing party or substantially prevailing party on appeal before the court of appeals . . . of a decision by a county . . . to issue, condition, or deny a development permit. . . . The court shall award and determine the amount of reasonable attorneys' fees and costs under this section if:
(a) The prevailing party on appeal was the prevailing or substantially prevailing party before the county . . .; and
(b) The prevailing party on appeal was the prevailing party or substantially prevailing party in all prior judicial proceedings.
(2) In addition to the prevailing party under subsection (1) of this section, the county . . . whose decision is on appeal is considered a prevailing party if its decision is upheld at superior court and on appeal.
Because Bonneville was in violation of conditions 10 and 11 of the CUP and because both the hearing examiner and the superior court found in favor of the County, we award the County attorney fees under RCW 4.84.370(1).
We affirm the revocation of Bonneville's CUP based on his violation of two conditions, violation of either being sufficient to support the revocation order.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J. and HUNT, J., concur.