Opinion
No. 64496-3-I.
April 4, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-2-08017-0, Anita L. Farris, J., entered November 17, 2009.
Remanded by unpublished opinion per Cox, J., concurred in by Ellington and Appelwick, JJ.
Burnstead Construction appeals the superior court's findings, conclusions, and order on decision in this Land Use Petition Act (LUPA) proceeding. The superior court reversed the decision of the City of Edmond's Hearing Examiner. At issue in this appeal is whether the hearing examiner's decision is correct. Assuming that it is not, we must also decide what remedy is proper.
We hold that Lora Petso, the original petitioner in this LUPA proceeding, has met her burden under RCW 36.70C.130(1) to establish that this land use decision was incorrect, in part. Pursuant to RCW 36.70C.140, we remand for further proceedings before the hearing examiner that are not inconsistent with this opinion.
In 2006, Burnstead purchased a 5.61 acre, former elementary school site from the Edmonds School District to develop into a residential subdivision. The property is zoned residential single family (RS-8) by the City of Edmond's Comprehensive Plan, which allows for 5.5 residential dwelling units per acre.
In 2007, Burnstead applied for approval of a preliminary plat containing 27 residential lots and six tracts for open space and/or other matters. Burnstead also applied for approval of a Planned Residential Development (PRD) for the property. Under the Edmonds Community Development Code (ECDC), Chapter 20.35, a PRD may be proposed in lieu of compliance with the standard zoning requirements. This may be done to "promote flexibility and creativity in the layout and design of new development and [to] protect the environment and critical areas through the use of open spaces above requirements of other provisions of city code." The regulations allow for the clustering of structures in order to promote the efficient use of land, preserve existing natural site amenities, preserve and create open spaces, and promote more efficient street and utility systems.
ECDC 20.35.010.
Id.
The City issued a State Environmental Policy Act (SEPA) Mitigated Determination of Non-Significance (MDNS) for the proposed project in April 2007. Petso and others not involved in this appeal appealed the MDNS.
In June 2007, the City Hearing Examiner conducted a public hearing on Burnstead's preliminary plat application, the PRD application, and the appeal of the MDNS under SEPA. Petso and others presented testimony at the hearing. The hearing examiner admitted numerous exhibits as part of this administrative record. The record was closed on June 28, 2007, following submission of additional written materials that are not at issue in this appeal.
Clerk's Papers at 1597.
The July 20, 2007 decision of the hearing examiner denied the MDNS appeals of Petso and others. The decision also granted preliminary plat approval, subject to conditions. The decision remanded the PRD and directed Burnstead to demonstrate its compliance with certain City code provisions with respect to the proposed PRD, including the perimeter buffer requirement.
Petso moved for reconsideration of the decision. By order dated August 8, 2007, the hearing examiner denied the motion. Thereafter, the City and Burnstead moved for reconsideration with respect to the decision on the proposed perimeter buffer for the plat. The hearing examiner entered a consolidated order on reconsideration of their motions dated September 28, 2007, granting PRD approval.
Clerk's Papers at 1679-687.
Clerk's Papers at 1797-1802.
Petso appealed the preliminary plat approval to the Edmond's City Council. The City Council affirmed the hearing examiner's decision.
Clerk's Papers at 1992-993.
Petso commenced this LUPA proceeding in October 2007. Following several hearings over the course of the next 16 months, the superior court issued its memorandum decision in February 2009. Following additional briefing and a hearing, the court entered its Findings of Fact, Conclusions of Law and Order of Decision on October 26, 2009. The decision reversed the City's approval of the MDNS, preliminary plat approval, and PRD approval.
Clerk's Papers at 171-201.
Clerk's Papers at 125-29.
Burnstead appeals.
LAND USE DECISION Standard of Review
LUPA governs judicial review of Washington land use decisions. "A petition for review by the superior court constitutes appellate review on the administrative record before the local jurisdiction's body or officer with the highest level of authority to make the final determination." On review of a superior court's decision, we stand in the shoes of the superior court and review the administrative decision on the record before the administrative tribunal, not the superior court record.
HJS Dev. Inc. v. Pierce County, 148 Wn.2d 451, 467, 61 P.3d 1141 (2003).
Id. (citing RCW 36.70C.030; Chelan County v. Nykreim, 146 Wn.2d 904, 916-17, 52 P.3d 1 (2002)).
Satsop Valley Homeowners Ass'n, Inc. v. Northwest Rock, Inc., 126 Wn. App. 536, 541, 108 P.3d 1247 (2005).
The petitioner in a LUPA proceeding carries the burden of establishing that the hearing examiner erred under any one or more of LUPA's six standards of review. Notwithstanding the superior court's reversal of the hearing examiner's decision and Burnstead's appeal to this court, Petso's statutory burden to show that the hearing examiner's decision was erroneous remains unchanged before this reviewing court.
See Pinecrest Homeowners Ass'n v. Glen A. Cloninger Assoc., 151 Wn.2d 279, 288, 87 P.3d 1176 (2004).
Id.
The review standards articulated in RCW 36.70C.130(1) that are at issue in this appeal are:
. . . .
(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.
Standard (b) presents a question of law that we review de novo. Standard (c) concerns a factual determination that we review for substantial evidence. "Substantial evidence is evidence that would persuade a fair-minded person of the truth of the statement asserted." Standard (d), the clearly erroneous standard, involves applying the law to the facts. Under that test, we determine whether we are left with a definite and firm conviction that a mistake has been committed. When reviewing factual findings, we 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.
Abbey Road Group, LLC v. City of Bonney Lake, 167 Wn.2d 242, 250, 218 P.3d 180 (2009).
Id.
Id.
Id. (citing Cingular Wireless, LLC v. Thurston County, 131 Wn. App. 756, 768, 129 P.3d 300 (2006)).
Cingular Wireless, 131 Wn. App. at 768 (citingCitizens to Preserve Pioneer Park, LLC v. City of Mercer Island, 106 Wn. App. 461, 473, 24 P.3d 1079 (2001)).
Id. (citing Citizens to Preserve Pioneer Park, 106 Wn. App. at 473).
Id.
Drainage Plan
Petso argues that the hearing examiner incorrectly "believed that [Burnstead] was proposing a larger [stormwater drainage] facility than would be considered sustainable under the Southwest Edmonds Drainage Plan." She further contends that "[t]here is no way to know what the hearing examiner would have done if she had known that the proposed facility was smaller, not larger, than what would be considered sustainable under the [drainage plan]."
Brief of Respondent at 14.
Brief of Respondent at 14.
In response, Burnstead first argues that the hearing examiner's decision to approve the preliminary drainage plan is supported by substantial evidence. Specifically, it contends that the hearing examiner's statement in her decision that design infiltration rates of 10 inches per hour exceed the rates recommended by the Southwest Edmonds Drainage Plan (SEDP) is irrelevant to whether the proposed drainage plan meets City design standards. In sum, Burnstead argues that this admittedly mistaken statement regarding infiltration rates is "dictum, irrelevant and at most harmless error."
Opening Brief of Appellants at 20.
When reviewing a challenge to the sufficiency of the evidence under RCW 36.70C.130(1)(c), we look to whether there is "'a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the order.'" Whether a decision erroneously applies the law to the facts is reviewed under the clearly erroneous standard. Under that standard, the court determines whether it is left with a definite and firm conviction that a mistake has been committed. This court views all the evidence and reasonable inferences "'in the light most favorable to the party who prevailed in the highest forum that exercised fact-finding authority.'"
Benchmark Land Co. v. City of Battle Ground, 146 Wn.2d 685, 694, 49 P.3d 860 (2002) (quoting City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wn.2d 38, 46, 959 P.2d 1091 (1998)).
Cingular Wireless, 131 Wn. App. at 768.
Id. (citing Citizens to Preserve Pioneer Park, 106 Wn. App. at 473).
Peste v. Mason County, 133 Wn. App. 456, 477, 136 P.3d 140 (2006).
Here, the hearing examiner made nine separate findings of fact dealing with the stormwater drainage plan. Findings 31-38 deal with design and related issues. Finding 40 deals with future maintenance of the proposed drainage system. As the original petitioner in this LUPA proceeding, it is Petso's burden to show that these findings are not supported by substantial evidence.
Clerk's Papers at 1611-613.
Clerk's Papers at 1614.
The essence of the arguments in her briefing to this court is that the proposed drainage plan is inadequate because the size of the proposed retention vault is too small. She bases this specific argument on the following statement in the July 20, 2007, decision of the hearing examiner:
Brief of Respondent at 13-14.
The Applicant's proposed design meets standards required by the City and is designed for a 100-year, 24-hour storm event with infiltration at 10 inches per hour, which is in excess of the rate recommended by the SW Edmonds DP.
Clerk's Papers at 1628.
Burnstead concedes in its briefing that this statement is incorrect.
Petso also contends that the provisions for future maintenance of the system are inadequate. Apparently, this is a challenge to Finding 40 of the decision, although she does not expressly identify this finding in her briefing.
Brief of Respondent at 18.
We turn to Petso's first argument: that the above quotation from the hearing examiner's decision shows the drainage plan is deficient. Petso fails to identify whether we should review this statement under the substantial evidence or clearly erroneous standard of review, as RCW 36.70C.130(1) requires. But in view of Burnstead's concession that the statement is incorrect, it is not necessary for us to decide this question. Rather, the question is what effect this incorrect statement had on the hearing examiner's conclusion that the drainage plan complied with all applicable rules and regulations.
Approval was based, in part, on the Preliminary Storm Drainage Report prepared for the site. It proposed a system of catch basins and piping to collect and convey stormwater runoff to an underground vault.
The proposed vault is sized for a 100-year, 24-hour storm. The design assumption uses an infiltration rate of 10 inches per hour for stormwater seepage into the ground. This infiltration rate is based on the Stormwater Infiltration Study, which measured infiltration rates ranging from 11.4 inches per hour to 14.4 inches per hour. The 10 inch per hour assumption includes a 3.5 safety factor.
The SEDP has been incorporated into the Edmonds Comprehensive Plan. The SEDP states that safe infiltration levels range from 2 inches per hour to 10 inches per hour, depending on the soil at the specific site. The hearing examiner erroneously stated in her decision that Burnstead's proposed vault, sized using an infiltration rate of 10 inches per hour, which includes a 3.5 safety factor, is better able to handle excess water than a vault sized for a lower infiltration rate. This is incorrect.
Clerk's Papers at 1437-438.
The reason that this statement is incorrect is that the size of a stormwater retention vault for a site is inversely proportional to the infiltration rate of stormwater into the ground at that site. The larger the infiltration rate of stormwater into the ground, the smaller the required size of the retention vault. Conversely, the lower the infiltration rate of stormwater into the ground, the larger the required size of the retention vault. The hearing examiner's statement is directly at odds with these principles because it states that the 10 inch per hour infiltration rate used to design the size of the vault is better than the rate recommended by the SEDP for safe vault design. Because of this, there is no way of determining whether the hearing examiner would still have approved the drainage plan as compliant with governing law. Given the hearing examiner's incorrect statement of the relative safety of the assumed infiltration rate for this project, the hearing examiner must determine whether approval is still warranted.
While Burnstead concedes that the hearing examiner erred with respect to the statement of the relationship between infiltration rates and vault size, it argues that this mistake is dictum, irrelevant, and harmless error. We disagree.
First, proper drainage is a major issue for this project given the serious existing drainage problem and the additional drainage burden that this project will place on the area. Simply stated, selecting a proper infiltration rate and safety factor for designing a properly sized vault are essential.
As the data indicate, the 10 inch per hour infiltration rate for the proposed drainage plan is at the margin of the range of safe infiltration rates discussed in the SEDP. It does not exceed what is safe. In short, the statement that the proposed system exceeds the criteria in the referenced work is no small matter in determining whether the plan complies with relevant laws.
Second, this mistake is compounded by the fact that Burnstead's Stormwater Infiltration Study, which is the basis for the proposed infiltration rate of 10 inches per hour, did not include any infiltration tests on the site of the proposed vault.
Clerk's Papers at 885-87, 890.
Burnstead argues that the hearing examiner's approval of its preliminary stormwater drainage plan should be upheld because it was designed by engineers. It also argues that the City's engineer opined that Burnstead was not required to use the 6 inch average infiltration rate recommended by the SEDP and that any problems could be addressed during later stages of the approval process. None of these arguments address the fact that the hearing examiner approved the current drainage plan under an apparently mistaken understanding of material facts. Thus, this land use decision is erroneous to the extent that these issues underlie the drainage plan that Burnstead proposed.
Petso next argues that there is a "failure to provide for [future] maintenance of the vault." The hearing examiner noted these concerns in both the findings and conclusions. But the hearing examiner failed to provide a clear decision to resolve this dispute for who would be responsible for maintenance: the homeowners association [HOA] or the city. The assumption that the HOA will act in accordance with applicable laws is insufficient under these circumstances.
Brief of Respondent at 18-19.
Other than these two arguments, Petso fails to explain why the other findings of the hearing examiner respecting the drainage plan are not supported by substantial evidence. Specifically, she fails to challenge Findings 31-38, dealing with drainage system design and related issues. Accordingly, they are verities on appeal.
City of Olympia v. Drebick, 156 Wn.2d 289, 311, 126 P.3d 802 (2006).
In sum, Petso has met her burden to demonstrate that the hearing examiner's decision on the drainage plan is incorrect, in part. We discuss the appropriate remedy for this error later in this opinion.
Perimeter Buffer
Petso argues that the hearing examiner erroneously approved the plat without requiring a perimeter buffer on all four sides of the plat. Burnstead concedes that no buffer appears on the north and east sides of the proposed plat, but claims its plat design would comply with the perimeter buffer requirement either by adding in buffers later or by complying with ECDC 20.35.050(C) by imposing certain conditions. We conclude that the hearing examiner erred in determining that the plat, as currently proposed, is compliant with the perimeter buffer requirement.
Opening Brief of Appellant at 22-26.
Id. at 31-33.
ECDC 20.35.050(C) provides,
Perimeter Design. The design of the perimeter buffer shall either:
1. Comply with the bulk zoning criteria applicable to zone by providing the same front, side and rear yard setbacks for all lots adjacent to the perimeter of the development; and/or
2. Provide a landscape buffer, open space or passive use recreational area of a depth from the exterior property line at least equal to the depth of the rear yard setback applicable to the zone. If such a buffer is provided, interior setbacks may be flexible and shall be determined pursuant to ECDC 20.35.030. When the exterior property line abuts a public way, a buffer at least equal to the depth of the front yard required for the underlying zone shall be provided.
(Emphasis added.)
The above cited language and all other citations to the ECDC in this opinion are to the version of the ECDC that was in effect during Burnstead's application process. The City Council has since amended its code.
In reviewing municipal ordinances, this court applies the same rules of construction that we apply to state statutes. The primary duty of the court in interpreting any statute or ordinance is to discern and implement the legislative intent. A statute is unambiguous when it is not susceptible to two or more interpretations. When statutory language is unambiguous, the court gives effect to the plain meaning of the statute. The court cannot add words to an unambiguous statute when the legislature has chosen not to include them.
City of Gig Harbor v. North Pacific Design, Inc., 149 Wn. App. 159, 167, 201 P.3d 1096, review denied, 166 Wn.2d 1037 (2009).
State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003) (citing Nat'l Elec. Contractors Ass'n v. Riveland, 138 Wn.2d 9, 19, 978 P.2d 481 (1999)).
State v. Delgado, 148 Wn.2d 723, 726-27, 63 P.3d 792 (2003) (citing State v. McGee, 122 Wn.2d 783, 787, 864 P.2d 912 (1993)).
J.P., 149 Wn.2d at 450 (quotingRiveland, 138 Wn.2d at 19).
Id. (citing Delgado, 148 Wn.2d at 727).
This court reviews questions of law de novo under RCW 36.70C.130(1)(b).
Abbey Road Group, 167 Wn.2d at 250.
Here, the original plat application submitted by Burnstead did not comply with the applicable bulk zoning criteria or include a perimeter buffer. The hearing examiner found in its July 20, 2007, decision that:
ECDC 20.35.050(C) requires that a PRD shall either conform to the bulk zoning criteria for the underlying zone (front, side, and rear yard setbacks) for all lots adjacent to the perimeter or it shall provide a buffer (landscape, open space, or passive recreational) equal to the rear yard setback which, for RS-8 zone is 15 feet. [Burnstead] seeks alterations to the bulk zoning criteria (front and side yard) for lots adjacent to the perimeter but fails to provide a perimeter buffer designed in conformance with ECDC 20.35.050(C). City Staff stated a "proposed 15 foot setback around the perimeter of the site would help to separate and buffer the proposed PRD from the surrounding neighborhood." The Applicant's Preliminary Plat Map does not denote this distinct setback requirement.
Clerk's Papers at 1617.
Based on this, and the other findings and conclusions, the hearing examiner granted Burnstead's preliminary plat application and PRD application subject to enumerated conditions and remanded for the limited purpose of compliance with the perimeter buffer requirement and certain other additional documentation. Specifically, the hearing examiner held:
ECDC 20.35.050(C) requires that a perimeter buffer be provided. This may be satisfied by providing the same front, side, and rear yard setbacks applicable to the RS-8 zone for all lots adjacent to the perimeter of the development. The Applicant has sought to modify the RS-8 required setbacks for this proposal and therefore is required to provide a landscape buffer, open space, or passive use recreational area of at least 15 feet (rear yard setback of RS-8 zone) along the exterior property line. Preliminary plat maps do not depict this.
The Hearing Examiner further finds that the intent of this perimeter buffer is to screen the PRD from lower density residential development. Given this, the Hearing Examiner concludes that such a buffer would not necessarily be required along the northern border of the site, due to the BPA easement serving this purpose, or along the eastern border of the site, adjacent to the city-owned parcel.
Clerk's Papers at 1631 (emphasis added).
To determine legislative intent, courts look first to the plain language of a statute. The "intent" described by the hearing examiner in the second paragraph above is not derived from the plain language of the statute. Nor does it appear that the hearing examiner's statement is supported by any other authority.
State v. M.C., 148 Wn. App. 968, 971, 201 P.3d 413 (2009).
Burnstead subsequently submitted a revised plat map, which included a 15 foot buffer along the south and west boundaries of the development, overlaying the rear yard setback for the lots bordering those boundaries and moved for reconsideration. Following a public hearing on the perimeter buffer issue, the hearing examiner concluded in its Order on Remand that the revised plat did not comply with ECDC 20.35.050(C)(2) because a buffer may not overlay the rear yard setback. But the hearing examiner nonetheless approved the revised PRD subject to further compliance with ECDC 20.35.050(C). In September, following the issuance of a formal code interpretation by the City of Edmonds, the hearing examiner revised its Order on Revision, finding Burnstead's revised plat compliant with ECDC 20.35.050(C)(2).
Clerk's Papers at 1797-1800.
Here, Burnstead does not dispute that its proposal fails to comply with ECDC 20.35.050(C)(1). Clearly it does not comply. The plain words of the law require a perimeter buffer. Webster's Third New International Dictionary defines "perimeter" as "the boundary of a closed plane figure." The absence of buffers on the north and east side of the proposed plat violates the plain words of this law.
Webster's Third New International Dictionary 1680 (1993) (emphasis added).
Whether Burnstead could comply with ECDC 20.35.050(C) by changing the design of its preliminary plat or by adding additional restrictions to the existing lots is not before us. Whether either of these two approaches is sufficient to satisfy the buffer requirement is an issue that may properly be addressed only by the hearing examiner on remand, not by this court.
Open Space
Petso next argues that the plat fails to meet the minimum open space requirements because "Tract A" is already designated as a landscape buffer. Thus, it cannot also be counted as part of the agreed minimum open space requirement. Burnstead argues that the hearing examiner correctly determined that its site plan, as conditioned, complied with the minimum 10 percent open space requirement of ECDC 20.35.050(D). We disagree.
Brief of Respondent at 26-27.
ECDC 20.35.050(D) provides,
Open Space and Recreation. Usable open space and recreation facilities shall be provided and effectively integrated into the overall development of a PRD and surrounding uses and consistent with ECDC 20.35.060(B)(6). "Usable open space" means common space developed and perpetually maintained at the cost of the development. At least 10 percent of the gross lot area and not less than 500 square feet, whichever is greater, shall be set aside as part of every PRD with five or more lots. Examples of usable open space include playgrounds, tot lots, garden space, passive recreational sites such as viewing platforms, patios or outdoor cooking and dining areas. Required landscape buffers and critical areas except for trails which comply with the critical areas ordinance shall not be counted toward satisfaction of the usable open space requirement.
(Emphasis added.)
As discussed above, this court applies the same rules of construction to municipal ordinances that are applied to state statutes. Questions of law are reviewed de novo.
North Pacific Design, 149 Wn. App. at 167.
Abbey Road Group, 167 Wn.2d at 250.
Here, the hearing examiner found that the original site plan complied with the open space requirement of ECDC 20.35.050(D). Specifically, the hearing examiner concluded:
ECDC 20.35.050(D) requires that PRDs provide usable open space and recreation facilities of at least 10 percent of the gross lot area. For this 5.61 acre parcel, the Applicant must provide a minimum of 24,423 square feet of open space. The Applicant has proposed four tracts to satisfy this requirement — Tract A (4,913 sq feet), Tract C (7,350 sq feet), Tract E (9,356 sq feet), and Tract F (3,566 sq feet) — for a total of 25,185 sq feet. In addition to open space, Tract C would serve as a recreational area (tot lot, walking trail, etc.). . . . [T]he PRD's design for open space satisfies the City's requirement.
Clerk's Papers at 1617.
However, when Burnstead submitted its revised site plan to address the perimeter buffer requirement, a 15 foot swath of Tract A was drawn over as buffer to comply with ECDC 20.35.050(C). Because this is shown as a landscape buffer, the plain words of ECDC 20.35.050 prohibit also counting it as open space.
The hearing examiner erred in interpreting ECDC 20.35.050(D). The City code clearly indicates that " Required landscape buffers . . . shall not be counted toward satisfaction of the usable open space requirement. " And, as discussed above, ECDC 20.35.050(C) requires a perimeter buffer around the entire exterior of the site plan. Thus, the hearing examiner's determination that Burnstead could double count over 1,000 square feet of Tract A as both open space and perimeter buffer was erroroneous.
ECDC 20.35.050(D) (emphasis added).
Burnstead argues that the hearing examiner did not err in finding its PRD proposal compliant with ECDC 20.35.050(D), because the City code does not require a perimeter buffer on open space tracts. Burnstead cites ECDC 21.75.030 and the City's interpretation of RW 20.35.050(C)(2) as authority for this argument. Neither citation is persuasive.
ECDC 21.75.030 defines open space as "any part of a lot unobstructed from the ground upward." But this has no bearing on whether a required perimeter buffer may also be counted as usable open space with respect to the separate requirement of ECDC 20.35.050(D). And, as discussed above, ECDC 20.35.050(D) clearly states that a required perimeter buffer may not be counted as open space — however defined.
The City's formal interpretation of ECDC 20.35.050(C)(2) is likewise not persuasive. That document was issued in response to a request from the hearing examiner for a formal staff interpretation regarding the issue of how the perimeter setbacks of a PRD should be applied with respect to allowing flexible setback standards. It was not intended to, and did not, address the separate open space requirement of ECDC 20.35.050(D).
The City clarified that the perimeter buffer requirement of ECDC 20.35.050(C)(2) may be met by one of the following:
1. A landscape buffer equivalent to the rear yard setback [of] the applicable zone district, or
2. An open space area equivalent to the rear yard setback of the applicable zone district, or
3. A passive recreation area equivalent to the rear yard setback of the applicable zone district.
A condition will be required to be placed upon the recorded planned residential development document prohibiting construction of structures within the designated landscape buffer, open space area or passive recreation area on the perimeter lots.
Clerk's Papers at 1711.
Burnstead cites the following from the analysis preceding the official interpretation.
Should a PRD propose establishing an open space area on perimeter lots of the PRD, which would prohibit construction of structures, the PRD would meet the intent of both the definition of open space as outlined in ECDC 21.75.030 and the requirements of ECDC 20.35.050(C). This area could be landscaped but could not contain any structures. There is a distinct difference between such a designated open space area from a "normal" setback, as a normal rear yard setback would allow accessory structures, decks, eaves etc. to encroach into the setback area whereas a designated open space would not.
Id.
Neither the official interpretation of ECDC 20.35.050(C)(2), nor the analysis preceding it, supports Burnstead's argument that a perimeter buffer is not required on open space tracts that abut the perimeter of the development. As discussed above, the plain language of ECDC 20.35.050(C) requires a perimeter buffer around the entire exterior of the project. And ECDC 20.35.050(D) prohibits perimeter landscape buffer from counting toward the usable open space requirement.
Burnstead also contends that any error is harmless. However, we need not address this argument as it is not supported by analysis or any citation to authority.
State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992).
Petso has met her burden to show error with respect to the minimum open space requirement.
REMEDY
Petso argues that we should review the superior court's decision on remedy for abuse of discretion and affirm reversal. Burnstead argues that we should affirm the land use decision of the hearing examiner, thereby reversing the decision of the superior court. Alternatively, Burnstead argues that if we conclude that the hearing examiner's decisions on drainage, perimeter buffering, or open space is incorrect, we should either remand with modifications or remand for further proceedings before the hearing examiner.
RCW 36.70C.140, provides:
The court may affirm or reverse the land use decision under review or remand it for modification or further proceedings. If the decision is remanded for modification or further proceedings, the court may make such an order as it finds necessary to preserve the interests of the parties and the public, pending further proceedings or action by the local jurisdiction.
(Emphasis added.)
The plain words of this statute state that the "[reviewing] court may affirm or reverse the land use decision under review or remand it for modification or further proceedings." It does not say that we review the decision by a lower court, which has first reviewed the land use decision. Case authority also makes clear that we stand in the shoes of the superior court and review the administrative decision on the record before the administrative tribunal.
(Emphasis added.)
Satsop Valley Homeowners, 126 Wn. App. at 541.
Accordingly, we review the land use decision of the hearing examiner based on the administrative record. We do not review the superior court decision.
Pavlina v. City of Vancouver, 122 Wn. App. 520, 525, 94 P.3d 366 (2004).
While Petso argues that the abuse of discretion standard applies here, the cases that she cites for support are inapposite. None involve this statute. Rather, they involve the exercise of discretion by the superior court in other circumstances.
See Quality Rock Products, Inc. v. Thurston County, 126 Wn. App. 250, 108 P.3d 805 (2005) (whether service was proper under CR 4 and RCW 36.70C.040 and whether a party could amend caption under CR 15(c) reviewed for abuse of discretion); Exendine v. City of Sammamish, 127 Wn. App. 574, 113 P.3d 494 (2005) (whether superior court erred in denying request to supplement the record reviewed for abuse of discretion); Grandmaster Sheng-Yen Lu v. King County, 110 Wn. App. 92, 38 P.3d 1040 (2002) (whether party was entitled to declaratory judgment under chapter 7.24 RCW reviewed for abuse of discretion); Shaw v. City of Des Moines, 109 Wn. App. 896, 37 P.3d 1255 (2002) (decision to vacate judgment under CR 60 reviewed for abuse of discretion);Willapa v. Grays Harbor Oyster Growers Ass'n v. Moby Dick Corp., 115 Wn. App. 417, 62 P.3d 912 (2003) (superior court's assessment of costs for preparation of record reviewed for abuse of discretion).
The next question is what remedy, in our exercise of discretion under RCW 36.70C.140, is appropriate. We conclude that remand for further proceedings before the hearing examiner on the drainage plan, perimeter buffer, and open space matters that we address in this opinion is appropriate. We note that RCW 58.17.033 provides for vesting in certain circumstances. The cases adopt this view.
RCW 58.17.033 ("A proposed division of land, as defined in RCW 58.17.020, shall be considered under the subdivision or short subdivision ordinance, and zoning or other land use control ordinances, in effect on the land at the time a fully completed application for preliminary plat approval of the subdivision, or short plat approval of the short subdivision, has been submitted to the appropriate county, city, or town official.").
Friends of the Law v. King County, 123 Wn.2d 518, 525-26, 869 P.2d 1056 (1994).
Petso argues that reversal is the only appropriate remedy. Her arguments are not persuasive, given the nature of the errors that she identifies on appeal to this court.
First, she claims that it has not been shown that conditions can remedy all these defects. We do not know that yet. The record, as it now stands, does not support that conclusion.
Second, she argues that it has not been shown that changes in the configuration necessitated by the conditions will not create other code noncompliance. This is unknown as well. At best, this is speculative.
Third, she claims that approval on other issues assumed a proposal configured in a certain way. She contends that it is not possible to know on the limited review that Burnstead proposed whether any changed proposal would have still been approved as to other issues if configured differently. We note with respect to this concern that it will still be Burnstead's burden on remand to demonstrate compliance with all applicable laws.
CONCLUSION
Petso has met her burden to show that the hearing examiner's land use decision is erroneous, in part. But we conclude that the proper remedy under the circumstances of this case is to remand for further proceedings before the hearing examiner. Those proceedings should be limited to addressing the issues concerning the drainage plan, the perimeter buffer, and open space that we discuss in this opinion. The effect of our decision is to reverse, in part, the superior court decision.
151 Wn.2d at 293 (explaining the effect of an ourt's land use decision).
We remand to the hearing examiner for further proceedings that are not inconsistent with this opinion.
WE CONCUR: