Opinion
No. 63524-7-I.
Filed: March 7, 2011.
Appeal from a judgment of the Superior Court for Snohomish County, No. 08-2-08223-5, Eric Z. Lucas, J., entered April 23, 2009.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Cox and Ellington, JJ.
This is an appeal under the Land Use Petition Act (LUPA), chapter 36.70C RCW. The Breskes no longer dispute the hearing examiner's decision. Instead, they argue that the superior court overreached its authority under LUPA by declaring rights under the plat rather than merely affirming the hearing examiner. On review of a LUPA decision, where the superior court is required to serve in an appellate capacity to an administrative action, any findings of fact and conclusions of law issued by the superior court are simply disregarded as surplusage. We affirm the hearing examiner.
FACTS
This appeal arises from the Breskes's attempt to develop a single-family residence on a currently undeveloped lot, "Lot 1", in the plat of Preview Homes Westgate Village (Westgate Village). Westgate Village is a 20-lot plat that was approved by Snohomish County in July 1961 and subsequently annexed into the city of Edmonds (City) in September 1961. The plat contains a dedication that granted Snohomish County and its successors the continuing right to drain all roads and ways "over and across any such lot or lots where water might take a natural course. . . . No land drainage shall be diverted to public road rights-of-way, nor shall it be blocked from draining along its normal course." Lot 1 is a relative low point in Westgate Village and has functioned as the natural drainage repository for runoff from the rest of the plat, at least since the time of the plat's dedication. In other words, water draining from Westgate Village has historically followed its "natural course" to Lot 1 and continues to do so today. Indeed, the original developer of the plat intended Lot 1 to serve as a storm water collection area for the other 19 lots, and Snohomish County included this arrangement as a condition of the plat approval.
The Breskes purchased Lot 1 in January 2007. Before their purchase, the City informed the Breskes of the plot's historical drainage function as a retention area for the rest of the plat. The City further informed the Breskes of the applicable storm water drainage regulatory standards that governed future development: "i.e., that the applicants would be required to ensure that the post-development drainage function of Lot 1 was at least equivalent to the amount and degree of detention presently being provided by the lot." Over the next year and a half, the Breskes submitted first one, and then a second permit application seeking to build a single-family residence on Lot 1. Both of the applications met with disapproval from the City for failing to provide detention for the existing runoff from the other lots of the plat currently draining onto Lot 1 and for failing to meet the "no net increase" standard after construction.
The Breskes appealed the City's determination to the City of Edmonds Hearing Examiner and the hearing examiner issued its findings, conclusions, and decision in August 2008, rejecting the Breskes' appeal. The Breskes then appealed that decision to the Snohomish County Superior Court, under LUPA. The superior court affirmed the hearing examiner's decision, first in an oral ruling and later in its written final order. The Breskes timely appealed to this court.
DISCUSSION
The Breskes' central argument is that the superior court erred as a matter of law by overstepping its authority under LUPA. RCW 36.70C.140 outlines three possible responses for a reviewing court when considering a hearing examiner's LUPA decision: "The court may affirm or reverse the land use decision under review or remand it for modification or further proceedings." (Emphasis added.) The superior court here denied the Breskes' appeal and affirmed the hearing examiner's decision. But, the Breskes argue that the superior court's language did more than just affirm the hearing examiner. They contend that the superior court's final order also made "declarations of rights", potentially impacting their future claims and/or development plans. Indeed, this alleged overreaching by the superior court is the sole focus of the Breskes' appeal — they expressly abandon any challenge to the underlying decision of the hearing examiner. The City responds that the superior court's final order merely restated the hearing examiners decision and did not constitute any overreaching. The City also argues that any findings and conclusions entered by the superior court are neither relevant nor properly before this court.
When reviewing a superior court's decision on a land use petition, the appellate court stands in the shoes of the superior court. Citizens to Pres. Pioneer Park, LLC v. City of Mercer Island, 106 Wn. App. 461, 470, 24 P.3d 1079 (2001). In the context of administrative review, the Court of Appeals reviews the administrative agency action, not the superior court record. J.L. Storedahl Sons, Inc. v. Cowlitz Cnty., 125 Wn. App. 1, 6, 103 P.3d 802 (2004). Indeed, where an administrative appeal requires review of the agency action rather than a review of the superior court record, the conclusions of the trial court are surplusage and do not require further analysis. Van Sant v. City of Everett, 69 Wn. App. 641, 651, 849 P.2d 1276 (1993); Grader v. City of Lynwood, 45 Wn. App. 876, 879, 728 P.2d 1057 (1986). This standard applies with equal force in the context of a LUPA decision. Wellington River Hollow, LLC v. King Cnty., 121 Wn. App. 224, 230, 54 P.3d 213 (2002) (On review of a LUPA decision, where the superior court is required to serve in an appellate capacity to an administrative action, any findings of fact and conclusions of law issued by the superior court are simply disregarded as surplusage.).
The paragraphs numbered 1-14 in the final order are the findings of fact and conclusions of law of the trial court. The heading that precedes these paragraphs reads, "IT IS HEREBY ORDERED, ADJUDGED AND DECREED." This heading does not change the character of those paragraphs. Whether such findings of fact and conclusions of law were necessary or constitute overreaching is of no consequences to this appeal. We disregard them as surplusage. This court reviews the hearing examiner's decision and not the superior court's decision. The superior court's decision forms the entire basis of the Breskes' appeal; the Breskes have expressly decided not to contest the hearing examiner's ruling. We affirm the hearing examiner's decision.
Attorney Fees on Appeal
The City requests attorney fees on appeal as the prevailing party under RCW 4.84.370. The prevailing party on appeal of a land use decision is entitled to its attorney fees if that party's decision also prevailed before the administrative agency and in the superior court. RCW 4.84.370(1); Friends of Cedar Park Neighborhood v. City of Seattle, 156 Wn. App. 633, 654-55, 234 P.3d 214 (2010). Because the City is the prevailing party in this case, we award its attorney fees.
Affirmed.
WE CONCUR: