Opinion
66874-9-I
05-14-2012
RENTON NEIGHBORS FOR HEALTHY GROWTH, Appellant, v. PACLAND; JEFF CHAMBERS, P.E.; BONNELL FAMILY, LLC; PETER BONNELL; CITY OF RENTON, Respondents, WAL-MART STORES, INC., Intervenor.
UNPUBLISHED OPINION
Lau, J.
Wal-Mart Stores, Inc. proposes to expand its Renton store by 16, 000 square feet. The existing store was built before the current zoning regulations were enacted and is nonconforming in some respects. Renton Neighbors for Healthy Growth (RNHG) opposes the expansion, claiming that (1) it illegally expands a nonconforming use and (2) it fails to comply with the city of Renton's design regulations. The hearing examiner approved Wal-Mart's proposal with several conditions, and the city council affirmed. RNHG appeals the hearing examiner's decision to approve the expansion under the Land Use Petition Act (LUPA), chapter 36.70C RCW. Because (1) the hearing examiner's interpretation of the relevant code provisions is reasonable, (2) the hearing examiner's unchallenged findings are supported by substantial evidence, and (3) RNHG demonstrates no clear error in the hearing examiner's application of the law to the facts, we affirm.
FACTS
Wal-Mart Stores, Inc. retained PACLAND to provide civil engineering services for a proposed store expansion in the city of Renton (City). In 2010, PACLAND filed an application with the City for site plan review of a proposal to expand Wal-Mart's existing 134, 352 square-foot store by approximately 16, 000 square feet. The project would also reduce Wal-Mart's garden center by 4, 000 square feet and add 127 parking stalls. The Wal-Mart property was zoned "commercial arterial" and "medium industrial." On February 22, 2010, the City accepted PACLAND's application for review.
A majority of the site was zoned "commercial arterial, " with a small area on the western part of the site designated "medium industrial." "For the purposes of the Site Plan Review the [Commercial Arterial] standards were used to review the proposal."
The City's Environmental Review Committee reviewed the project application and issued a "Determination of Non-Significance – Mitigated, " including six mitigation measures, for the Wal-Mart expansion. No appeals of this determination were filed. The City's Department of Community and Economic Development issued a preliminary report to the hearing examiner. The report indicated that Wal-Mart's proposal was "not compliant" with several city code provisions but recommended the City approve the expansion subject to several conditions. The hearing examiner held a public hearing for Wal-Mart's site plan application. The City received no public opposition to the project. The hearing examiner made extensive findings based on the preliminary report and the hearing testimony. He adopted most of the analysis in the preliminary report and approved Wal-Mart's expansion proposal subject to eleven conditions.
To the contrary, the City received several letters and a petition with numerous signatures indicating community support for the project.
RNHG failed to submit any comment letters and did not attend the hearing because it was not aware of the proposal at that time. RNHG filed a request for reconsideration, arguing that the project violated several Renton Municipal Code (RMC) requirements and illegally expanded a nonconforming use. The hearing examiner denied RNHG's request, concluding there was "no reason to alter the original decision nor the conditions attached to that decision." RNHG also appealed the hearing examiner's decision to the Renton city council. After a hearing, the city council's planning and development committee voted to uphold the hearing examiner's decision and recommended that the full city council do the same. The city council adopted the Committee's recommendation and affirmed the hearing examiner's decision.
RNHG filed a land use petition with the superior court under LUPA. Wal-Mart intervened in the action and moved to dismiss for lack of standing. The trial court denied the motion, ruling that RNHG met the RCW 36.70C.060(2) requirements for standing. But the trial court denied RNHG's land use petition on the merits, ruling (1) the City acted within its authority in approving Wal-Mart's site plan, (2) substantial evidence supported the decision, (3) the City properly interpreted and applied its code requirements in approving the site plan, and (4) the land use decision was not an erroneous interpretation of the law or a clearly erroneous application of the law to the facts. The court concluded, "[RNHG] has failed to satisfy the standards of RCW 36.70C.130(1)(a)-(d) and is therefore not entitled to relief." RNHG appeals.
The respondents initially named in the petition were PACLAND and its contact Jeff Chambers, the property owner Peter Bonnell and Bonnell Family, LLC, and the City. In this opinion we refer to Wal-Mart and the City collectively as "respondents."
ANALYSIS
Standard of Review
LUPA is the exclusive means of obtaining judicial review of land use decisions, with certain exceptions not applicable here. Friends of Cedar Park Neighborhood v. City of Seattle, 156 Wn.App. 633, 640, 234 P.3d 214 (2010). We review the decision of the "local jurisdiction's body or officer with the highest level of authority to make the determination, including those with authority to hear appeals." RCW 36.70C.020(2). Thus, when reviewing a LUPA decision, we stand in the shoes of the superior court, reviewing the ruling below on the administrative record. HJS Dev., Inc. v. Pierce County ex rel. Dep't of Planning & Land Servs., 148 Wn.2d 451, 468, 61 P.3d 1141 (2003). Here, because the City Council adopted the hearing examiner's findings of fact and conclusions of law, we review the hearing examiner's decision. See RMC 4-8-100(K)(2) ("Unless otherwise specified, the City Council shall be presumed to have adopted the Examiner's findings and conclusions.").
Under LUPA, a court may grant relief only if the party seeking relief has carried the burden of establishing that one of the standards set forth in RCW 36.70C.130(1) is met. RNHG cites four standards in its appellate brief:
(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 . . . .
Appellant's Br. at 7 (quoting RCW 36.70C.130(1)). Subsections (a) and (b) are questions of law that we review de novo. Phoenix Dev., Inc. v. City of Woodinville, 171 Wn.2d 820, 828, 256 P.3d 1150 (2011). "When reviewing a challenge to the sufficiency of the evidence under subsection (c), we view facts and inferences in a light most favorable to the party that prevailed in the highest forum exercising fact-finding authority, " in this case the City and Wal-Mart. Phoenix Dev., 171 Wn.2d at 828-29. This process "'necessarily entails acceptance of the factfinder's views regarding the credibility of witnesses and the weight to be given reasonable but competing inferences.'" City of Univ. Place v. McGuire, 144 Wn.2d 640, 652, 30 P.3d 453 (2001) (quoting State ex rel. Lige & Wm. B. Dickson Co. v. County of Pierce, 65 Wn.App. 614, 618, 829 P.2d 217 (1992)). Under the substantial evidence standard, there must be sufficient evidence to "persuade a reasonable person that the declared premise is true." Phoenix Dev., 171 Wn.2d at 829. We do not weigh the evidence or substitute our judgment for the reviewing official's judgment. Phoenix Dev., 171 Wn.2d at 832. Under subsection (d), the application of the law to the facts is clearly erroneous—and thus reversible—only if we are left with a definite and firm conviction that a mistake has been committed. Phoenix Dev., 171 Wn.2d at 829; Milestone Homes, Inc. v. City of Bonney Lake, 145 Wn.App. 118, 126, 186 P.3d 357 (2008).
Standing
The respondents contend RNHG lacks standing because it failed to attend the public hearing and thus failed to exhaust its administrative remedies. RNHG argues that attendance at the hearing was not required and it otherwise exhausted all administrative remedies required under the RMC.
Outside the Declaratory Judgments Act, standing is an issue that must be raised in the trial court. Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 203- 04 n.4, 11 P.3d 762, 27 P.3d 608 (2000); see also Baker v. Teachers Ins. & Annuities Ass'n Coll. Ret. Equity Funds, 91 Wn.2d 482, 484, 588 P.2d 1164 (1979) (where issue of standing was not submitted to trial court, it could not be considered on appeal). Here, the respondents raised the issue below when they moved to dismiss for lack of standing, but the trial court concluded RNHG had standing and denied the motion. The respondents neither cross appealed that ruling nor assigned error to it on appeal. "Failure to cross-appeal an issue generally precludes its review on appeal." Amalgamated Transit, 142 Wn.2d at 202. Review of the record also shows that the respondents raised the standing issue before the hearing examiner and the City Council. The respondents failed to cross appeal either of those decisions even though the hearing examiner and City Council reached the merits of RNHG's arguments and implicitly concluded RNHG had standing. See Caswell v. Pierce County, 99 Wn.App. 194, 197, 992 P.2d 534 (2000) (in LUPA case, when respondents "have not cross-appealed the hearing examiner's conclusion, and the superior court's concurrence" regarding certain issues, the appellate court will not address those issues). Here the respondents waived their standing argument by failing to cross appeal or assign error to the trial court's ruling on standing.
Some of our cases erroneously refer to standing as "jurisdictional" and allow it to be raised for the first time on appeal. But article IV, section 6 of the Washington Constitution does not exclude any causes from the broad jurisdiction of superior courts, meaning Washington courts have few constraints on their jurisdiction. Krieschel v. Bd. of Snohomish County Comm'rs, 12 Wash. 428, 439, 41 P. 186 (1895); Philip A. Talmadge, Understanding the Limits of Power: Judicial Restraint in General Jurisdiction Court Systems, 22 Seattle U. L. Rev. 695, 708-09 (1999). Thus, if a defendant waives the defense that the plaintiff lacks standing, Washington courts can reach the merits. Talmadge at 718-19; Tyler Pipe Indus., Inc. v. Dep't of Revenue, 105 Wn.2d 318, 327, 715 P.2d 123 (1986) ("If the issue of standing is not submitted to the trial court, it may not be considered on appeal.") vacated on other grounds, 483 U.S. 232, 107 S.Ct. 2810, 97 L.Ed.2d 199 (1987). A recent decision from our Supreme Court, Knight v. City of Yelm, 173 Wn.2d 325, 336, 267 P.3d 973 (2011), states that "[s]tanding is jurisdictional." But Knight refers back to Chelan County v. Nykreim, 146 Wn.2d 904, 926, 52 P.3d 1 (2002), and Nykriem (putting "jurisdiction" in quotes) refers back to Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 181, 4 P.3d 123 (2000), which does not use the word "jurisdiction" at all, but simply mentions the well-established rule that to invoke the superior court's appellate jurisdiction (i.e., jurisdiction the court already possesses), one must strictly comply with any procedural requirements the legislature has established. This does not mean that the litigant's compliance vests the court with jurisdiction or that the litigant's lack of compliance divests the court of jurisdiction. Our Supreme Court has warned against the type of casual and imprecise use of the term "jurisdiction" that occurs in Knight. See Marley v. Dep't of Labor & Indus., 125 Wn.2d 533, 541, 886 P.2d 189 (1994).
"Vesting"
The parties dispute which version of the RMC applies in our review. RNHG argues that Wal-Mart "vested to" the former version of the RMC that was in effect at the time the City accepted Wal-Mart's site plan review application for review in February 2010. Appellant's Reply Br. at 39. It argues that all review was based on application of the former RMC and we should review the hearing examiner's decision under that version. Wal-Mart argues that a "site plan application does not trigger vesting, " and thus, the former RMC provisions do not apply to our review. Resp't's Br. at 18.
The RMC has been amended several times since the City accepted Wal-Mart's site plan review application in February 2010. Relevant to this opinion, several RMC provisions were amended in March 2010, after the City accepted review but before the hearing examiner made his decision.
For clarity, we refer to the RMC provisions in effect in February 2010 as the "former RMC" and to the amended RMC provisions in effect at the time the hearing examiner made his decision simply as the "RMC."
Washington's vested rights doctrine "entitles developers to have a land development proposal processed under the regulations in effect at the time a complete building permit application is filed . . . ." Abbey Rd. Group, LLC v. City of Bonney Lake, 167 Wn.2d 242, 250, 218 P.3d 180 (2009). RCW 19.27.095(1) provides:
A valid and fully complete building permit application for a structure, that is permitted under the zoning or other land use control ordinances in effect on the date of the application shall be considered under the building permit ordinance in effect at the time of application, and the zoning or other land use control ordinances in effect on the date of application.
We conclude the vested rights doctrine does not apply here. RNHG cites no authority applying the vested rights doctrine when determining which version of a local ordinance applies to a hearing examiner's decision on a site plan review application. See Beal for Martinez v. City of Seattle, 134 Wn.2d 769, 777 n.2, 954 P.2d 237 (1998) ("The City cites no authority for this proposition and, thus, it is not properly before us.") (citing RAP 10.3(a)(5); Schmidt v. Cornerstone Invs., Inc., 115 Wn.2d 148, 166, 795 P.2d 1143 (1990)). The issue here is which version of the RMC applies to our review of the hearing examiner's decision, not whether Wal-Mart had vested development rights by virtue of its site plan review application.
Even if we were asked to decide whether Wal-Mart's development rights "vested, " they did not in this case. In Abbey Road, our Supreme Court made clear that absent a local vesting ordinance specifying an earlier vesting date, development rights vest only upon filing a complete building permit application and do not vest merely upon filing a site plan review permit application. Abbey Rd., 167 Wn.2d at 252-61. Here Wal-Mart filed a site plan review application, not a complete building permit application. The RMC mirrors state law on vesting and establishes no earlier vesting date. See RMC 4-8-060(B). Thus Wal-Mart's application does not confer vested development rights.
We stand in the shoes of the superior court, reviewing the hearing examiner's ruling below on the administrative record. HJS Dev., 148 Wn.2d at 468. The City amended portions of its urban design regulations in March 2010, before the hearing examiner heard this case. The amended version thus applied to the hearing examiner's original decision on May 13, 2010, and his reconsideration on June 10. We apply the amended RMC in effect when the examiner made his decision. See Phoenix Dev., 171 Wn.2d at 834-36 (in reviewing City's denial of rezone application, court applied version of Woodinville Municipal Code in effect when City made its decision); Woods v. Kittitas County, 162 Wn.2d 597, 617-25, 174 P.3d 25 (2007) (in reviewing county board of commissioners' approval of rezone application, court applied version of Kittitas County Code in effect when Board made its decision); City of Medina v. T-Mobile USA, Inc., 123 Wn.App. 19, 29-33, 95 P.3d 377 (2004) (in reviewing hearing examiner's approval of a variance application, court applied version of Medina Municipal Code in effect when examiner made his decision).
RNHG argues that because the table incorporated into the hearing examiner's decision "parallels the version of RMC 4-3-100 that [was in effect at the time Wal-Mart applied for its site plan approval], " the hearing examiner reviewed Wal-Mart's proposal under that former version rather than the amended version that he should have used. Appellant's Reply Br. at 39. Thus, according to RNHG, "all review in this case was based upon the application of the previous version of the law" and we should use the former version. Appellant's Reply Br. at 38. But RNHG failed to raise this argument in its request for reconsideration, its notice of appeal or briefing to the city council, or during the appeal hearing before the city council in August 2010. RNHG cited the amended version of the RMC—particularly portions of RMC 4-3-100(A), which it now argues are inapplicable—in its opening and reply briefs in its appeal to the city council. Those briefs were filed well after the hearing examiner ruled on RNHG's request for reconsideration. RNHG thus had sufficient time to raise the issue before the city council and failed to do so.
RNHG also failed to raise the issue in its LUPA petition or its trial brief, despite citing the former version of the RMC. RNHG raised its argument for the first time in its reply brief in the superior court. But we review the hearing examiner's action, not the proceedings before the superior court, on the basis of the administrative record de novo. HJS Dev., 148 Wn.2d at 468. In LUPA cases, we may refuse to consider arguments raised for the first time on review. RAP 2.5(a); First Pioneer Trading Co., Inc. v. Pierce County, 146 Wn.App. 606, 617 n.5, 191 P.3d 928 (2008). Here, RNHG did not challenge the version of the RMC applied before the hearing examiner or the city council and provides no explanation why the argument could not have been made earlier. Thus, RNHG did not put either the hearing examiner or the council on notice of its challenge to the version of the RMC applied. See Citizens for Mount Vernon v. City of Mount Vernon, 133 Wn.2d 861, 869, 947 P.2d 1208 (1997) ("Our cases require issues to be first raised at the administrative level . . . ."); Exendine v. City of Sammamish, 127 Wn.App. 574, 113 P.3d 494 (2005) (trial court properly refused to allow LUPA petitioners to raise a new argument not raised or argued before the hearing examiner). Because RNHG failed to raise the issue of whether the hearing examiner applied an incorrect version of the RMC before either the hearing examiner or the city council, we decline to consider that challenge now.
Even if we considered RNHG's argument, RNHG cites to nothing else in the hearing examiner's decision or elsewhere in the record that indicates which version of the code he applied, and on reconsideration, the hearing examiner cited the amended version, showing he reviewed his decision under the amended version. (Clerk's Papers (CP) at 77-78 (citing amended RMC 4-3-100(A)(2)). The hearing examiner concluded on reconsideration that the "[amended RMC] provisions cited above allow sufficient latitude to permit the proposed expansion as conditioned in the decision." Given our limited review, we are unable to conclude the hearing examiner applied an incorrect version of the law.
"Verities on Appeal"
The parties also dispute whether the hearing examiner's findings are verities on appeal in this case. RNHG argues that under LUPA, notice pleading is sufficient to challenge all the hearing examiner's findings and, furthermore, the hearing examiner made only "circumscribed findings based on other legal criteria, not those listed in RMC 4-2-120C(15)." Appellant's Reply Br. at 35. Wal-Mart contends that failure to assign error to a hearing examiner's findings of fact makes them verities on appeal.
In City of Medina, we reviewed a hearing examiner's decision granting T-Mobile's request for a special use permit and three variances. City of Medina, 123 Wn.App. at 22. We concluded that "[Medina] does not appear to challenge any of the hearing examiner's findings in this case, so they are verities on appeal." City of Medina, 123 Wn.App. at 29. Similarly, in United Development Corp. v. City of Mill Creek, 106 Wn.App. 681, 684, 26 P.3d 943 (2001), we reviewed the city council's imposition of mitigation fees and other conditions on a subdivision. We concluded that "because [United Development Corporation] assigns no error to the findings of the City Council, they are verities on appeal." United Dev., 106 Wn.App. at 688. See also Stuewe v. Dep't of Revenue, 98 Wn.App. 947, 950, 991 P.2d 634 (2000) (administrative finding of fact not assigned error is verity on appeal); Hilltop Terrace Homeowner's Ass'n v. Island County, 126 Wn.2d 22, 30, 891 P.2d 29 (1995) (same).
This case is similar to City of Medina and United Development Corp. The hearing examiner made numerous findings of fact based on the administrative record before him. RNHG assigns error "to the King County Superior Court's Final Order and Judgment issued on February 22, 2011." Appellant's Br. at 2. RNHG assigns no error to the hearing examiner's findings and cites no authority for its argument that LUPA petitioners challenge all of the hearing examiner's findings when they petition via simple notice pleading. See First Am. Title Ins. Co. v. Liberty Capital Starpoint Equity for Fund, LLC, 161 Wn.App. 474, 486, 254 P.3d 835 (2011) (declining to consider an inadequately briefed argument). The hearing examiner's findings are verities on appeal. Substantial evidence supports the findings as discussed below.
Merits of Hearing Examiner's Decision
RNHG argues that the hearing examiner's decision should be overturned because (1) Wal-Mart's proposal violates the City's design regulations applicable to district D under RMC 4-3-100 and (2) the proposal is an illegal expansion of a nonconforming use under RMC 4-10-050. We address the design regulations issue first because it affects both arguments.
As discussed above, we apply the amended design regulations in effect when the hearing examiner made his decision.
RMC 4-3-100's design regulations apply to development within certain designated design districts, including design district D where Wal-Mart is located. RMC 4-3-100(B)(1)(b), (3). The design regulations list elements that are required for development in the applicable design districts. Each element includes an intent statement, standards, and guidelines. RMC 4-3-100(A)(2). The standards "specify a prescriptive manner in which the requirement can be met, " while the guidelines and intent statement "provide direction for those who seek to meet the required element in a manner that is different from the standards." RMC 4-3-100(A)(2). The design regulations mandate that the hearing examiner
shall have the authority to approve, approve with conditions, or deny proposals based upon the provisions of the design regulations. In rendering a decision, the [hearing examiner] will consider proposals on the basis of individual merit, will consider the overall intent of the minimum standards and guidelines, and encourage creative design alternatives in order to achieve the purposes of the design regulations.RMC 4-3-100(D)(2). If the examiner determines "that the proposed manner of meeting the design requirement through the guidelines and intent is sufficient, the applicant shall not be required to demonstrate sufficiency to the standard associated with the guideline that has been approved." RMC 4-3-100(A)(2)(b). "Where there are conflicts between the design regulations of this Section and other sections of the Renton Municipal Code, the regulations of this Section shall prevail." RMC 4-3-100(B)(2).
This provision does not appear in the former RMC. RNHG argues that the hearing examiner erred when he cited this provision in his decision on reconsideration. We addressed that argument above.
RNHG first argues that the standards set forth in the design regulations are mandatory and the hearing examiner erred in permitting Wal-Mart to meet the intent and guidelines rather than the specific standards. For this proposition, it cites to the former RMC provisions, which provided that the minimum standards "must be met." Former RMC 4-3-100(A)(8). As discussed above, the RMC was amended in March 2010 before the hearing examiner made his decision. The amendments removed the "must be met" language. As quoted above, the amended version of the RMC applicable at the time the hearing examiner decided this case did not require an applicant "to demonstrate sufficiency to the standard associated with the guideline that has been approved" as long as the applicant satisfied the intent and guidelines associated with the design requirement. RMC 4-3-100(A)(2)(b). "'It is a well established rule of statutory construction that considerable judicial deference should be given to the construction of an ordinance by those officials charged with its enforcement.'" Citizens for a Safe Neighborhood v. City of Seattle, 67 Wn.App. 436, 440, 836 P.2d 235 (1992) (quoting Mall, Inc. v. Seattle, 108 Wn.2d 369, 377, 739 P.2d 668 (1987)); see also Gen. Motors Corp. v. City of Seattle, 107 Wn.App. 42, 57, 25 P.3d 1022 (2001). Our Supreme Court has explained the reasons for this rule of deference:
"The primary foundation and rationale for this rule is that considerable judicial deference should be accorded to the special expertise of administrative agencies. Such expertise is often a valuable aid in interpreting and applying an ambiguous statute in harmony with the policies and goals the legislature sought to achieve by its enactment. At times, administrative interpretation of a statute may approach 'lawmaking, ' but we have heretofore recognized that it is an appropriate function for administrative agencies to 'fill in the gaps' where necessary to the effectuation of a general statutory scheme. It is likewise valid for an administrative agency to 'fill in the gaps' via statutory construction—as long as the agency does not purport to 'amend' the statute."Mall, 108 Wn.2d at 378 (quoting Hama Hama Co. v. Shorelines Hearings Bd., 85 Wn.2d 441, 448, 536 P.2d 157 (1975)) (internal citations omitted). Given the hearing examiner's authority to "consider proposals on the basis of individual merit, " "consider the overall intent of the minimum standards and guidelines, " and "encourage creative design alternatives, " we decline to disturb the hearing examiner's interpretation of the RMC. RMC 4-3-100(D)(2). The hearing examiner did not err in considering whether Wal-Mart met the intent and guidelines associated with the design regulations despite not meeting the applicable standards. The examiner concluded on reconsideration that the RMC 4-3-100(A) and (D) provisions cited above "allow sufficient latitude to permit the proposed expansion as conditioned in the decision." RNHG fails to show that "[t]he 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." RCW 36.70C.130(1)(b).
RNHG next argues that the Wal-Mart proposal violates several design regulation standards. Specifically, RNHG contends that the proposal fails to conform to standards governing parking areas, tree planting, and building architectural design. See Appellant's Opening Br. at 25-27. To the extent RNHG contends these standards are mandatory and the hearing examiner erred in concluding otherwise, our discussion above resolves this contention. To the extent RNHG contends that insufficient evidence supports the hearing examiner's findings on these matters, the findings are verities on appeal as discussed above. Even if we review the findings—viewing the facts and inferences most favorably to the City and Wal-Mart as the prevailing parties below—substantial evidence supports them under RCW 36.70C.130(1)(c) and the findings support the hearing examiner's conclusions. The hearing examiner heard testimony at the public hearing regarding code compliance and deviations necessitated by the site layout and existing structure. Various meeting attendees testified that the proposal would meet the design regulations' intent and guidelines even if certain standards were not met. City staff prepared a detailed report and recommended conditions to bring the proposal further in line with the intent and guidelines. The hearing examiner also considered public comment letters describing how the Wal-Mart expansion would improve the surrounding area and create jobs and advancement opportunities for employees. RNHG fails to demonstrate that "[t]he land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court" under RCW 36.70C.130(1)(c).
RNHG does not raise or brief any other specific objections to the proposal's compliance with the design regulations.
RNHG does not specifically make an "insufficiency of the evidence" argument and thus we need not consider it on appeal. See First Am., 161 Wn.App. at 486 (declining to consider an inadequately briefed argument). Nevertheless, we address this prong of RCW 36.70C.130(1) for completeness.
Likewise, RNHG fails to satisfy its burden under RCW 36.70C.130(1)(d) to demonstrate clear error in the hearing examiner's application of the design regulations to Wal-Mart's proposal. As discussed above, we defer to the hearing examiner's conclusion that the design regulations were not mandatory and that in the event a proposal fails to comply with standards, an applicant may demonstrate compliance with the intent and guidelines behind a particular regulation. Relevant to RNHG's challenges, RMC 4-3-100's design regulation intent statements include the intent to "maintain active pedestrian environments along streets by placing parking lots primarily in back of buildings;" "provide safe and attractive pedestrian connections to buildings;" and "encourage building design that is unique and urban in character, comfortable on a human scale, and uses appropriate building materials that are suitable for the Pacific Northwest climate and to discourage franchise retail architecture." RMC 4-3-100(E). The hearing examiner specifically addressed the noncompliance issue. He found that the site layout and existing conditions justified deviation from some standards given that the intent was met, and he imposed conditions to bring Wal-Mart further into compliance. Given the design elements' flexibility, the hearing examiner's discretion in applying them, and the examiner's specific findings—unchallenged by RNHG and supported by substantial evidence in the record—RNHG fails to demonstrate any basis for reversing the examiner's decision for "clear error"—which is appropriate only if we are "left with the definite and firm conviction that a mistake has been committed." Phoenix Dev., 171 Wn.2d at 829.
Among the hearing examiner's findings and conclusions are: "the applicant has met the intent to reduce the visual impacts of the parking lot with the use of landscaping"; "the applicant proposes changes to its front or eastern façade to provide more visual interest"; "the applicant has gone beyond code requirements to provide additional interior landscaping and perimeter landscaping to shield and buffer the parking lot"; and "pedestrian pathways and amenities near the front of the store have been enhanced." The hearing examiner's conditions required Wal-Mart to comply with guidelines regarding lighting, building façade, landscaping, and other areas.
Illegal Expansion of Nonconforming Structure
RNHG argues that the hearing examiner's decision requires reversal because Wal-Mart proposed an illegal enlargement of a nonconforming structure under RMC 4-10-050. Specifically, RNHG argues Wal-Mart's proposal (1) violates RMC 4-2-120(A)'s maximum front yard setback of 15 feet and (2) violates the City's design regulations. The respondents argue that the RMC allows the City to waive the 15-foot maximum setback requirement. The parties agree that the existing Wal-Mart store is "nonconforming" within the meaning of RMC 4-10-050.
RMC 4-10-050(A)(4) provides that nonconforming structures "shall not be enlarged unless the enlargement is conforming or it is consistent with the provisions of a rebuild approval permit issued for it." RMC 4-2-120(A) imposes a 15-foot maximum front yard setback requirement in the commercial arterial zone. Due to a large parking lot in front of the store, the existing Wal-Mart store's front entrance is approximately 555 feet from the relevant access roads (Hardy Avenue SW and Rainier Avenue S). To comply with RMC 4-2-120(A)'s 15-foot maximum setback requirement, Wal-Mart's expansion would need to extend approximately 540 feet across its existing parking area. The hearing examiner found:
The [Commercial Arterial] Zone requires a maximum front yard setback of 15 feet in order to locate structures closer to the street and reduce the visual impact of parking along thoroughfares. The proposed expansion would not comply with this requirement providing a setback of approximately 555 feet from Hard[y]-Rainier. Staff found that since the expansion encompasses a small portion of the proposed existing complex it does not trigger a need to conform to the newer, current standards.
The hearing examiner concluded:
The existing use, a large "big box" establishment does not meet current code requirements for the setback along its frontage street, the Hard[y]-Rainier complex. Only an incredibly large expansion or complete rebuild could move the front of the store to the street and parking to the rear. The proposed approximately 16, 000 square foot expansion cannot be expected to accomplish the maximum front yard setback of 15 feet. As a practical matter the tradeoff is allowing a reasonably well-designed expansion and revitalized store or probably permitting no change weighs in favor of the excessive setback. . . .
. . . . The extensive setback, while non-conforming as to the Zoning Code, actually helps the transition between a rather large big box store and its neighboring uses . . . .
RNHG first argues that because (1) a portion of the hearing testimony referred to RMC provisions for "alterations" rather than "enlargements, " and (2) "[t]here is no reference to or acknowledgment of RMC 4-10-050 by the Examiner in his conclusion, " the hearing examiner and City staff misinterpreted the RMC's provisions regarding enlargement of nonconforming structures. Appellant's Opening Br. at 15-16. The hearing examiner's decision shows that while the hearing examiner did not explicitly cite RMC 4-10-050, he considered this provision. The hearing examiner concluded that the existing store was nonconforming and that given the existing layout and site constraints, the expansion could not "be expected to accomplish the maximum front yard setback of 15 feet." The hearing examiner thus considered RMC 4-10-050(A)(4)'s requirement that nonconforming structures "shall not be enlarged unless the enlargement is conforming." Any reference to "alterations" rather than expansions in the hearing testimony is harmless given the hearing examiner's final decision, which considered Wal-Mart's proposal under the proper "expansion" analysis.
RNHG next argues that the hearing examiner erred in concluding that the City's design regulations contained in RMC 4-3-100 supersede RMC provisions that prohibit expansion of nonconforming structures. The respondents contend that the expansion complies with the design regulations, which take precedence over any conflicting zoning requirements—including the 15-foot maximum setback.
In response to RNHG's request for reconsideration, the hearing examiner explained the relationship between RMC 4-3-100's design regulations and the other zoning provisions in the RMC:
The Design District Regulations are 'overlay' provisions [that] govern properties within their boundaries regardless of the underlying zoning and other zoning provisions. The overlay guidelines provide that projects be reviewed with an eye toward flexibility to forward the main thrust of the guidelines – to create better designed and integrated projects. The guidelines allow different or creative ways to achieve those principles.
Further, the hearing examiner emphasized that (1) the design regulations' intent statements and guidelines "'provide direction for those who seek to meet the required element in a manner that is different from the standards'" and (2) the reviewing official should "'encourage creative design alternatives in order to achieve the purposes of the design regulations.'" CP at 78 (quoting RMC 4-3-100(A)(2), (A)(2)(b)).
The hearing examiner clarified for RNHG that the RMC 4-3-100's design regulations apply to "'[a]lterations, enlargements, and/or restorations of nonconforming structures pursuant to RMC 4-10-050 '" as well as to "'[b]ig box retail'" such as Wal-Mart. CP at 78 (quoting RMC 4-3-100(B)(1)(a)(v) and (b)). Thus, "not only is the redevelopment of non-conforming uses permitted under these [design] regulations but they, in the language of the code, 'shall be required to comply with the provisions of [the design regulations].'" CP at 78-79 (quoting RMC 4-3-100(B)(1)(a)).
As discussed above, "[w]hen construing an ordinance, a 'reviewing court gives considerable deference to the construction of the challenged ordinance by those officials charged with its enforcement.'" Phoenix Dev., 171 Wn.2d at 830 (quoting Ford Motor Co. v. City of Seattle, 160 Wn.2d 32, 42, 156 P.3d 185 (2007)). At issue here is the proper interpretation of the relationship between two RMC provisions: RMC 4-10-050(A) (nonconforming uses) and RMC 4-3-100 (design regulations). RMC 4-3-100(B)(1)(b)(ii) states that all big box retail development in the Commercial Arterial zone must comply with the design regulations. And as discussed above, "[w]here there are conflicts between the design regulations of [RMC 4-3-100] and other sections of the Renton Municipal Code, the [design regulations] shall prevail. RMC 4-3-100(B)(2).
The hearing examiner interpreted the RMC to permit properties within the design regulation districts to be developed "in accordance with the guidelines rather than the more general regulations governing properties outside of a District governed by overlay regulations." Thus, Wal-Mart's proposal need only comply with the design regulations, not RMC 4-10-050(A)'s nonconforming use provisions. Assuming a conflict existed between RMC 4-3-100's design regulations and RMC 4-10-050(A)'s provisions governing nonconforming uses, this is a reasonable interpretation given the conflicts language in RMC 4-3-100(B)(2). Because we defer to the City's determination of what the RMC requires, we conclude that the hearing examiner properly interpreted the RMC to allow Wal-Mart—in the event the two RMC provisions at issue conflict— to comply with the design regulations rather than the nonconforming use provisions.
We next consider whether a conflict exists. RNHG argues that the 15-foot setback requirement and the design regulations do not conflict and therefore the design regulations do not supersede the 15-foot setback. The respondents argue that the 15-foot setback conflicts with the design regulations as applied by the hearing examiner.
A conflict exists when it is "impossible to comply" with two separate directives. See Magnolia Neighborhood Planning Council v. City of Seattle, 155 Wn.App. 305, 318, 230 P.3d 190 (2010) (addressing conflicts standards in context of federal preemption); Lawson v. City of Pasco, 144 Wn.App. 203, 213-14, 181 P.3d 896 (2008) (applying the federal "impossible to comply" conflict test in deciding whether a state statute conflicted with a city ordinance).
In Baker v. Snohomish County Department of Planning & Community Development, 68 Wn.App. 581, 841 P.2d 1321 (1992), we addressed a claim of conflict between the permitting requirements of a state regulatory agency and a county. We found it "impossible to demonstrate in the abstract that the provisions of [a state regulatory agency permit] and the provisions of the [county] land-use permit are in conflict" when both the state regulatory agency and the county have a large measure of discretion in fixing the terms of a permit. Baker, 68 Wn.App. at 591. "Where any conflict is hypothetical and dependent upon the precise manner in which two discretionary permits were crafted, it is inappropriate to find preemption by implication. It is soon enough to find preemption when a conflict arises." Baker, 68 Wn.App. at 591. Thus, we have acknowledged that agencies may need to exercise their discretion before we can determine whether a conflict exists.
As discussed above, the design regulations confer considerable discretion on the hearing examiner. Applicable RMC 4-3-100 design regulation intent statements regarding building placement and design include the intent to "organize buildings for pedestrian use;" "ensure an appropriate transition between buildings, parking areas, and other land uses;" "make building entrances convenient to locate and easy to access;" "ensure that building entries further the pedestrian nature of the fronting sidewalk and the urban character of the district;" "maintain active pedestrian environments along streets by placing parking lots primarily in back of buildings;" and "provide safe and attractive pedestrian connections to buildings." RMC 4-3-100(E)(1)-(3).
Here the hearing examiner considered the required design elements and determined that a larger setback was appropriate because it allowed for better design. He concluded that "only an incredibly large expansion or complete rebuild" would meet the 15-foot setback requirement and that Wal-Mart's proposed 16, 000 square foot expansion "cannot be expected to close the distance to the street to 15 feet." CP 1001, 1002. He determined, "The extensive setback . . . helps the transition between a rather large big box store and its neighboring uses." He also determined that "[t]aking advantage of the building's existing placement . . . help[s] achieve a reasonable proposal." Other relevant conclusions include that "[Wal-Mart] has gone beyond code requirements to provide additional interior landscaping and perimeter landscaping to shield and buffer the parking lot;" "[p]edestrian links through the site and to the surrounding sidewalks help mitigate some of the impacts;" and "pedestrian pathways and amenities near the front of the store have been enhanced." The hearing examiner characterized his decision as a "tradeoff . . . allowing a reasonably well-designed expansion and revitalized store or probably permitting no change weighs in favor of the excessive setback." Thus, the hearing examiner exercised his discretion in finding that Wal-Mart's proposal, while not compliant with several design regulation standards, met the intent and guidelines of the design regulations. Upon exercising this discretion, the 15-foot setback was impossible to achieve. We conclude that a conflict exists between RMC 4-3-100 design regulations and RMC provisions that prohibit expansion of nonconforming uses. The hearing examiner properly applied RMC 4-3-100 rather than RMC 4-10-050.
RNHG also argues that in addition to violating the 15-foot setback requirement, Wal-Mart's proposal violates the design regulations pertaining to building and parking structures. This claim fails for the reasons discussed above.
Attorney Fees
Wal-Mart and the City seek attorney fees on appeal as the prevailing parties 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 156 Wn.App. at 654-55. As the prevailing parties, the City and Wal-Mart are entitled to an award of reasonable attorney fees on appeal subject to compliance with RAP 18.1.
CONCLUSION
RNHG fails to demonstrate that the hearing examiner misconstrued the city code or misapplied the law to the facts. Because RNHG has not met its burden of showing it is entitled to relief from the hearing examiner's decision under the LUPA, we affirm.