Opinion
No. 31343-0-II
Filed December 21, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Mason County. Docket No: 02-2-00993-3. Judgment or order under review. Date filed: 01/12/2004. Judge signing: Hon. James B II Sawyer.
Counsel for Appellant(s), Jay Allan Goldstein, Attorney at Law, 1800 Cooper Point Rd SW Ste 8, Olympia, WA 98502-1179.
Counsel for Respondent(s), Donald R. Jr Peters, Attorney at Law, 2424 Evergreen Park Dr SW Ste 102, Olympia, WA 98502-6041.
The Estate of John Friend (Friend) appeals the superior court's affirmance of the hearing examiner finding his subdivision proposal incomplete for noncompliance with Thurston County's Critical Areas Ordinance (CAO) and other environmental regulations. Friend argues that (1) the County misinterpreted the CAO; (2) substantial evidence does not support the decision; (3) the decision is clearly erroneous; and (4) the CAO is unconstitutionally vague. Because Friend fails to show entitlement to relief under RCW 36.70C.130(1), we affirm.
FACTS A. Logging Road in Wetlands Area
In 1993, Friend owned over 30 acres of land in Thurston County. Friend applied for a Forest Practice Application to harvest timber on his property. In September 1993, the Washington Department of Natural Resources allowed Friend to construct a 14 foot wide skid road through a large portion of his property's wetlands in order to harvest timber. This new road was approved for logging purposes only.
Friend and Friend Enterprises, Inc. was the original owner of the parcel; however, the parties agreed in November 2003, that the party of interest of the land in dispute was the Estate of Friend. For clarity, we consistently identify the land's owner as Friend.
Friend's property has been the subject of a number of boundary line adjustments that are not contested on appeal.
B. Prior Litigation and Parties' Stipulation
In November 1993, the County placed a six-year moratorium on Friend's property under RCW 76.09.060, for Friend's alleged violations of the Forest Practices Act. Friend contested the moratorium and lost the administrative appeal. Friend appealed to the superior court, but in 1996, Friend and the County avoided trial by entering the following stipulation pertinent to the instant dispute:
During the administrative appeal, the County enacted a CAO in February 1994.
Both parties agree that the logging road on the subject property has not been reviewed or approved by Thurston County. Nothing in this agreement, or in the approval of Mr. Friend's application for a Boundary Line Adjustment, shall be construed as an approval or authorization to maintain any road on the property. Mr. Friend agrees that any roadways providing access to the various lots on the subject properties must meet all applicable laws and regulations, including the Critical Areas Ordinance, TCC 17.15.930.
Administrative Record (AR) at 86 (emphasis added).
In 1999, Friend applied for a waiver of the moratorium that the County granted with conditions. Friend sued the County over these conditions; however, this challenge was unsuccessful and is not before us. Additionally, the stipulation allowed Friend to use the logging road to access his on-site septic system only; however, this use is not dispositive to the issue on appeal. We consistently identify the logging/septic road as a logging road.
C. Subdivision Application and Procedural History
In December 2001, Friend submitted a proposal to subdivide 24 of his acres into four lots. The Thurston County Department of Development (Department) informed Friend that his application was incomplete. The Department required Friend to submit additional information about the proposed subdivision, including how the logging road complied with the CAO and an environmental checklist.
Friend appealed this administrative decision to the County hearing examiner. Friend argued, inter alia, that the logging road was a non-conforming use and, thus, the CAO did not apply. After a public hearing and witness testimony, the hearing examiner upheld the Department's decision and issued findings of fact and conclusions of law. The hearing examiner's decision rested in part on the stipulation's language regarding the County's lack of approval of the logging road and Friend's agreement that any future roadway on his property would comply with the CAO. Friend moved for reconsideration, which was denied. Friend next appealed to the Thurston County Board of County Commissioners (Board). The Board upheld the hearing examiner's decision in a letter; the Board did not issue findings of fact or conclusions of law.
Friend then filed a land use petition in Mason County Superior Court. After a hearing, the court held that Friend failed to satisfy his burden under RCW 36.70C.130(1), and it affirmed the prior administrative decision that Friend's subdivision application was incomplete. Friend appeals this decision.
ANALYSIS
The Land Use Petition Act (LUPA) governs judicial review of local land use decisions and Friend, the petitioner, must demonstrate that he merits relief under this statute. RCW 36.70C.130(1); Isla Verde Int'l Holdings, Inc. v. City of Camas, 146 Wn.2d 740, 751, 49 P.3d 867 (2002) (stating that the party seeking relief `carrie[s]the burden of establishing that one of these standards [under RCW 36.70C.130(1)] has been met.').
The following LUPA standards are relevant here:
(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;
. . . .
(f) The land use decision violates the constitutional rights of the party seeking relief.
RCW 36.70C.130(1)(b)-(d), (f). When reviewing a LUPA decision, we sit in the same position as the superior court, examine the administrative record, and adopt the standard of review appropriate for each LUPA provision. Pinecrest Homeowners Ass'n v. Glen A. Cloninger Assocs, 151 Wn.2d 279, 288, 87 P.3d 1176 (2004); Isla Verde, 146 Wn.2d at 751.
I. Thurston County's Interpretation of its Critical Area Ordinance
Friend contends that because the County repealed Thurston County Code (TCC) 17.15.930K, the County lacks authority to require that his logging road comply with the CAO. See Reply Br. of Appellant at 3 (`[B]y repealing TCC 17.15.930K, THURSTON COUNTY divested itself of its enforcement rights regarding the repealed ordinance: roads through wetlands.').
During oral argument, the County stated that it did not repeal section K of TCC 17.15.930; rather, the omission was an inadvertent clerical error.
When reviewing an alleged error under RCW 36.70C.130(1)(b), we `allow for such deference as is due the construction of a law by a local jurisdiction with expertise.' (Emphasis added). See also Pinecrest, 151 Wn.2d at 290. And we review questions of law de novo. Pinecrest, 151 Wn.2d at 290.
Friend's argument, however, fails to consider the CAO as a whole. For example, TCC 17.15.925 and 17.15.930 expressly incorporate Table 5 that lists proposed uses in wetland areas. Table 5 sets forth a detailed list of different uses in critical areas, and it includes sections relating to roads. See Table 5, numbers 5, 32, 33, 40. Accordingly, the hearing examiner found that TCC 17.15.930's omission of subsection K was not dispositive of the CAO's applicability to Friend's subdivision application. See AR at 22 (`Although Section 17.15.930K does not appear in the current Thurston County Critical Areas Ordinance, Section 17.15.930 refers the reader to Table 5 for uses and activities permitted in Critical Areas.').
We also note that TCC 17.15.930K contained the heading `Road/Street — New Facility.' Table 5 employs the same language among its list of uses to give a land developer notice that a new road through wetlands is subject to a review under CAO. Further, TCC 17.15.930K required that roads generally comply with the CAO. The mere omission of TCC 17.15.930K does not allow Friend to ignore the CAO's other subsections relevant to his subdivision proposal.
Given the CAO's plain language and our deference to the hearing examiner's expertise in interpreting the County's land use ordinances, we hold the hearing examiner did not erroneously interpret the CAO or specific sections such as TCC 17.15.925 and TCC 17.15.930.
II. Substantial Evidence of Hearing Examiner's Decision
We examine a challenge under RCW 36.70C.130(1)(c) to determine whether there is a `sufficient quantity of evidence in the record to persuade a reasonable person that the declared premise is true.' Isla Verde, 146 Wn.2d at 751-52 (emphasis added). Friend contends that the hearing examiner's determinations lack substantial evidence; however, he fails to discuss two important facts about his subdivision application. First, the parties' stipulation in 1996 specified that the County had not approved the logging road and that Friend agreed that any road was required to comply with the CAO. As the hearing examiner stated, `[t]he Appellant [Friend] is bound by his agreement [stipulation] to subject the road to the Critical Area Ordinance review . . . [Friend] has not provided evidence contrary to this finding.' AR at 27.
Second, he consistently mischaracterizes the logging road as an existing road without a change in use, only an intensification of use, even though his subdivision application proposed that the skid logging road would now provide access to the residential lots. As the hearing examiner concluded, `While the road was used for logging purposes previously, the current proposal is a residential access road. . . . the use is not an intensification but rather a new use. Because the use is a new use, the road is subject to review under the Critical Areas Ordinance.' AR at 27. Friend does not meaningfully challenge the evidence supporting the hearing examiner's determinations. For example, Friend argues that his subdivision application was complete and vested when he submitted it; that the County could not require critical area mitigation, additional wetland buffers, or a shoreline development permit because TCC 17.15.930K was repealed and; that as a result, the County had no regulation governing roads over wetlands. This assertion is erroneous because the County's CAO does apply as previously discussed. And Friend complains about the County's requirement that he complete an environmental checklist, but he ignores the hearing examiner's determinations that TCC 18.10.050 and TCC 17.09.080 require this list.
We note that before the hearing examiner, Friend argued that the logging road was a non-conforming use.
Thus, Friend has not demonstrated that the hearing examiner's determinations lacked substantial evidence.
III. Application of the Critical Areas Ordinance
Friend challenges the hearing examiner's decision that his proposal is subject to the CAO. But Friend again ignores the binding effect of his stipulation with the County and his subdivision application's proposed change of use for the logging road.
In reviewing a challenge to the decision-makers' application of the law to the facts under RCW 36.70C.130(1)(d), `[t]he test is whether the reviewing court is left with the definite and firm conviction that a mistake has been committed.' Citizens to Preserve Pioneer Park LLC, v. City of Mercer Island, 106 Wn. App. 461, 473, 2 P.3d 1079 (2001); see also RCW 36.70C.130(1)(d) (allowing relief only when `[t]he land use decision is a clearly erroneous application of the law to the facts.') (emphasis added).
Further, `[o]ur review is deferential. We view the evidence and any reasonable inferences in the light most favorable to the party that prevailed in the highest forum exercising fact-finding authority.' Schofield v. Spokane County, 96 Wn. App. 581, 586, 980 P.2d 277 (1999). Here, we evaluate the evidence most favorably to the County because it prevailed before the hearing examiner, the highest administrative body issuing findings of fact and conclusions of law.
Friend repeatedly asserts that the CAO is inapplicable to his proposal because it omits TCC 17.15.930K. But as the hearing examiner stated in the denial of Friend's motion for reconsideration: `[I]t does not matter whether Section 17.15.930(K) existed because the Appellant signed an agreement releasing the moratorium, a consequence of which was that the property was subject to [CAO] review.' AR at 6. Significantly, the stipulation expressly references the entire CAO and does not narrow its scope to subsection K of TCC 17.15.930.
Friend does not reasonably suggest a contrary interpretation of the stipulation. Before the hearing examiner, Friend asserted that `he was under the impression that the Stipulation and Agreed Order only pertained to the moratorium period.' AR at 24. But the stipulation clearly contemplates that the agreement applies to the future. See AR at 86 (stipulation) (`Mr. Friend agrees that any roadways providing access to the various lots on the subject properties must meet all applicable laws and regulations, including [CAO], TCC 17.15.930. . . . This agreement . . . shall be binding upon and inure to the benefit of the parties hereto and their respective heirs . . . successors, transferees and assigns.').
Friend also mischaracterizes the use of the logging road in his subdivision proposal. See Reply Br. of Appellant at 14 (`Although Table 5 of TCC 17.15.930 indeed references new roads, and although the Table notes that new roads are subject to review under this chapter, the road was an existing road and therefore not subject to new road requirements.'). As previously discussed, Friend fails to rebut the evidence before the hearing examiner that his subdivision application sought to change the logging road's use to residential access and that the County did not review or approve the logging road in 1996.
Thus, we do not have a definite and firm conviction that the hearing examiner erred in determining that Friend's subdivision application was incomplete.
IV. Constitutionality of Critical Areas Ordinance
Although Friend's appellate brief does not specifically assign error under RCW 36.70C.130(1)(f) and his memoranda below only briefly asserts constitutional arguments, we review Friend's challenge. A county's land use ordinance that provides fair warning and allows a person of common intelligence to understand the law's meaning does not violate a party's constitutional rights. Young v. Pierce County, 120 Wn. App. 175, 182, 84 P.3d 927 (2004). We do not require an unreasonable standard of specificity and `judge the ordinance as applied, not for facial vagueness.' Young, 120 Wn. App. at 182. Further, if we can resolve a land use appeal on unconstitutional grounds, such as under statutory grounds, we `should refrain from deciding constitutional issues.' Isla Verde, 146 Wn.2d at 752. And we presume the constitutionality of land use ordinances. HJS Dev. Inc. v. Pierce County ex rel. Dep't of Planning and Land Serv. 148 Wn.2d 451, 477, 61 P.3d 1141 (2003).
Friend argues that Table 5 and the CAO's related sections are ambiguous and do not provide him fair warning of guidelines relevant to his subdivision application. But Table 5 sets forth a detailed list of over 50 proposed uses in an easily read chart. Beside each potential use, Table 5 lists relevant critical areas, such as Streams or Wetlands Class I, and then provides a simple key indicating whether the use is permitted in a specific critical area. Examples of the key's definitions include `S = Subject to review under this chapter' and `X = Prohibited.' Clerk's Papers at 27-30. And the CAO's review process expressly incorporates Table 5. Thus, we hold that Friend has not demonstrated that the CAO's detailed and common sense provisions are unconstitutional.
In summary, we hold that Friend has not met his burden to obtain relief under RCW 36.70C.130(1) and we affirm the Thurston County Hearing Examiner's decision that Friend's application to subdivide his 24-acre parcel is incomplete.
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.
BRIDGEWATER, J. and QUINN-BRINTNALL, C.J., concur.