Opinion
No. 26077-8-II
Filed: January 4, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of Clark County, No. 98-2-03393-6, Hon. Edwin L. Poyfair, June 2, 2000, Judgment or order under review.
Counsel for Appellant(s), Mark A. Erikson, Attorney At Law, 1111 Main St. Ste 402, Vancouver, WA 98660-2958.
Counsel for Respondent(s), Christopher Horne, Clark Co Deputy Pros Atty, 1013 Franklin, P.O. BOX 5000, Vancouver, WA 98642.
Sam and Janice Caltagirone and Ronald and Karen Bertsch (the appellants) appeal the denial of their conditional use permit for a gas station. Clark County cross-appeals. We hold that the superior court properly retained jurisdiction even after it remanded the administrative decision and that the appellants were not required to appeal the hearing examiner's remanded decision to the Board of Clark County Commissioners. Further, we hold that there was substantial evidence supporting the hearing examiner's decision that a gas station would be detrimental to and not necessary for the rural community. We affirm.
FACTS
The appellants own a 1.82-acre parcel of land along State Route 503 (SR 503) located 2.25 miles north of Battle Ground, Washington. A cemetery is located to the south and a park is located to the southeast across SR 503. Single family residences are to the north and west.
The appellants applied for a conditional use permit (CUP) to build a 3,200 square foot building, containing a 2,000 square foot convenience store with 4 double-sided gasoline pumps and 1,200 square feet of retail space. Fifty letters were received in opposition to the gas station and convenience store. After a public hearing, the Clark County Hearing Examiner denied the appellants' CUP. The examiner found that the appellants failed to sustain their burden of satisfying the standards in Clark County Code (CCC) sections 18.313.090 and 18.404.060. The convenience store and retail space were eventually approved as a permitted use.
The appellants sought review before the Board of Clark County Commissioners; the board affirmed the examiner's decision. The appellants then filed a land use petition in superior court. The superior court found errors in the examiner's decision. Consequently, it remanded the case to the examiner with instructions; it also retained jurisdiction to ensure that the examiner complied with its order. On remand, the examiner again denied the CUP. The appellants challenged the second denial in superior court. This time the court affirmed the examiner's decision. The appellants now seek review before this Court.
This decision noted that it would "become final and conclusive unless a written appeal therefrom is filed with the [b]oard . . . no later than . . . 14 calendar days after written notice of the decision is mailed[.]" Clerk's Papers at 25.
A timeline will help explain the procedural history of this case:
? September 1997 — The appellants applied for a CUP.
? May 1998 — The examiner denied the CUP.
? June 1998 — The appellants appealed to the board, which affirmed the examiner's decision in August 1998.
? September 1998 — The appellants appealed to the superior court, filing a LUPA Petition.
? November 1998 — The superior court remanded the matter to the examiner for the first time.
? May 1999 — The superior court remanded to the examiner for the second time.
? July 28, 1999 — The examiner issued his second decision, denying the appellants' CUP (and giving notice that under the Clark County Code, it would become final on 8/13/99).
? October 12, 1999 — Clark County filed its motion to dismiss, alleging that the examiner's decision became final due to the appellants' failure to timely appeal.
? October 14, 1999 — The appellants moved the superior court to set aside the examiner's second decision.
? May 19, 2000 — The superior court affirmed the examiner's second decision.
? June 15, 2000 — The appellants filed their notice of appeal to this court.
Land Use Petition Act
The Land Use Petition Act (LUPA), RCW 36.70C, is the 'exclusive means of judicial review of land use decisions[.]' RCW 36.70C.030(1). Under LUPA, we "may grant relief" from a land use decision if the party seeking relief satisfies one of the following standards:
(a) The body or officer that made the land use decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless;
(b) The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise;
(c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court;
(d) The land use decision is a clearly erroneous application of the law to the facts;
(e) The land use decision is outside the authority or jurisdiction of the body or officer making the decision; or
(f) The land use decision violates the constitutional rights of the party seeking relief.
Issues raised under subsection (b) are questions of law, reviewed de novo. City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wn.2d 38, 46, 959 P.2d 1091 (1998). Substantial evidence in subsection (c) is "a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the order." Callecod v. Wash. State Patrol, 84 Wn. App. 663, 673, 929 P.2d 510, review denied, 132 Wn.2d 1004 (1997). A decision is clearly erroneous in subsection (d) when "although there is evidence to support it, the reviewing court on the record is left with the definite and firm conviction that a mistake has been committed." Anderson v. Pierce County, 86 Wn. App. 290, 302, 936 P.2d 432 (1997) . . .
We stand "in the same position as the superior court when reviewing an administrative decision," Swoboda v. Town of La Conner, 97 Wn. App. 613, 617, 987 P.2d 103 (1999), review denied, 140 Wn.2d 1014 (2000), and apply "the appropriate standard of review directly to the administrative record." Wilson v. Employment Sec. Dep't, 87 Wn. App. 197, 200, 940 P.2d 269 (1997) . . .
We review 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).
Clark County Code
Clark County adopted provisions governing administrative appeals. See CCC 2.51.150 and CCC 18.600.100(A). In addition, CCC 18.404.060 governs the approval of conditional uses. To grant a conditional use, the examiner must find:
[T]hat the establishment, maintenance or operation of the use applied for will not, under the circumstances of the particular case, be significantly detrimental to the health, safety or general welfare of persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to the property and improvements in the neighborhood or to the general welfare of the county.
CCC 18.404.060(A).
Furthermore, commercial uses in rural areas are subject to the following standards:
[T]he applicant shall submit detailed information that permits the review authority to make findings that:
1. The proposed use will support the natural resource activities and/or the needs of the rural community;
2. The proposed use is limited in size to serve primarily the surrounding rural community and does not require or create the need for urban levels of service for water, sewer and transportation; and
3. The proposed use is primarily for convenience and service needs necessary to support natural resource activities and/or the rural community and will not cause adverse impacts on surrounding natural resource activities.
CCC 18.313.090.
The appellants concede that if there is substantial evidence to support the examiner's decision as to either code section, then their appeal fails. That is to say that if the proposed use is (1) detrimental or (2) not necessary, then the examiner's decision is appropriate. We will first review whether the superior court had jurisdiction after it remanded the action to the hearing examiner. Next we will examine each code section and whether there is substantial evidence to support the examiner's decision. Finally, we will examine the remainder of the parties' contentions.
I. Did the superior court err in failing to dismiss the appellants' LUPA action? Have the appellants obtained a "land use decision" and exhausted their administrative remedies?
Under the Clark County Code, an examiner's decision "shall be final and conclusive unless an appeal is filed conforming to the requirements of Section 18.600.100[.]" CCC 2.51.150. Final decisions "may be appealed only if, within fourteen (14) calendar days after written notice of the decision is mailed, a written appeal is filed with the . . . board of commissioners[.]" CCC 18.600.100(A).
Under LUPA, review is "commenced by filing a land use petition in superior court." RCW 36.70C.040(1). A land use petition, however, "is barred, and the court may not grant review, unless the petition" is filed "within twenty-one days of the issuance of the land use decision." RCW 36.70C.040(2)-(3).
The appellants challenged the examiner's final order more than 60 days after it was issued. Clark County argues that because the appellants did not appeal the examiner's remanded final order (within the 14-day CCC or 21-day LUPA periods), they failed to obtain a "land use decision" and, therefore, review under LUPA was inappropriate. (Clark County agrees that the LUPA petition was initially appropriate because it followed board action and was final.) It further argues that the superior court lacked subject matter jurisdiction because the appellants failed to exhaust their administrative remedies (by not appealing to the board the order entered by the examiner under the order of remand). These arguments are without merit.
A "land use decision" is "a final determination by a local jurisdiction's body or officer with the highest level of authority to make the determination, including those with authority to hear appeals" on "[a]n application for a project permit or other governmental approval required by law before real property may be improved, developed, modified, sold, transferred, or used[.]" RCW 36.70C.020(1)(a). To obtain such a determination, "one must, by necessity, exhaust his or her administrative remedies. Thus, exhaustion of administrative remedies is a necessary prerequisite to obtaining a decision that qualifies as a 'land use decision' subject to judicial review under LUPA[.]' Ward v. Bd. of Skagit County Comm'rs, 86 Wn. App. 266, 270-71, 936 P.2d 42 (1997).
Administrative remedies must be exhausted:
(1) "when a claim is cognizable in the first instance by an agency alone," (2) when the agency's authority "establishes clearly defined machinery for the submission, evaluation and resolution of complaints by aggrieved parties"; and (3) when the "relief sought . . . can be obtained by resort to an exclusive or adequate administrative remedy".
State v. Tacoma-Pierce County Multiple Listing Serv., 95 Wn.2d 280, 284, 622 P.2d 1190 (1980) (quoting Retail Store Employees Union Local, 1001 Chartered By Retail Clerks Int'l Ass'n, AFL-CIO v. Wash. Surveying Rating Bureau, 87 Wn.2d 887, 906-07, 909, 558 P.2d 215 (1976)).
The exhaustion of remedies requirement may be waived, however, where the exhaustion would be futile, irreparable harm would result, or the remedies would be inadequate. Dioxin/Organochlorine Ctr. v. Dep't. of Ecology, 119 Wn.2d 761, 777-78, 837 P.2d 1007 (1992); Orion Corp. v. State, 103 Wn.2d 441, 458, 693 P.2d 1369 (1985), cert. denied, 486 U.S. 1022 (1998). Here, the appellants obtained a land use decision when they appealed the examiner's first decision to the board. Moreover, the remand by the superior court (which retained jurisdiction to review the examiner's decision for compliance with its order, excuses the requirement that appellants' must again appeal to the board. After all, the superior court remanded after finding errors in the examiner's decision. Because the superior court retained jurisdiction, to ensure that the examiner complied with its directions on remand, the appellants' original land use petition was still before the superior court.
Cf. Doyle v. City of Crystal Lake, 183 Ill. App.3d 405, 539 N.E.2d 796 (1989) (After "remand of a cause to an agency for further proceedings, jurisdiction must necessarily remain with the circuit court until after disposition of those matters; only when the circuit court has examined the results of these additional proceedings will we recognize its subsequent order as being final and appealable.").
Furthermore, on remand, the examiner did not re-open the record, but instead it accepted more briefing from the parties. Therefore, another appeal to the board would likely have been futile because it had previously denied the appellants' CUP. Cf. Orion, 103 Wn.2d at 458 ("While rare, futility can be demonstrated by the factual circumstances of a particular case."). In addition, only the superior court could determine if the examiner complied with its order. The superior court did not err in failing to dismiss the appellants' LUPA action.
II. What is the correct standard of review under RCW 36.70C.130?
The appellants argue that the examiner applied the wrong standard of review (substantial evidence). Specifically, they argue that: (1) the examiner incorrectly applied the law to the facts by affording community displeasure too much weight in reviewing the CUP (RCW 36.70C.130(d)); (2) the examiner failed to make required findings under the Clark County Code, and based his decision on an erroneous interpretation of the Clark County Code (RCW 36.70C.130(b)); and (3) if substantial evidence was the proper standard, the superior court failed to apply the less deferential version under LUPA (RCW 36.70C.130(c)). We address the appellants' third argument first.
The appellants argue that the superior court erred in granting deference to the examiner. They claim that the substantial evidence standard under LUPA is intentionally different from the deferential common law standard.
In the judgment affirming the examiner's decision, the superior court made several conclusions of law, including:
1. In reviewing Findings of Fact, the substantial evidence test is the applicable test. The Appellate Court does not substitute its judgment for that of the fact finder. This standard is a deferential standard. The evidence is viewed in the light most favorable to the party who prevailed at the highest administrative level.
2. The Petitioner bears a very high burden in proving error. The Court accepts the [Examiner's] assessment of credibility and looks to whether or not the law has been properly interpreted and applied. . . .
. . . .
4. It is very challenging to reverse a decision if the [Examiner] has evidence on both sides and chooses one side over the other. Substantial documentation was submitted both for and against the proposal.
Clerk's Papers at 607-08 (emphasis added).
In Isla Verde Int'l Holdings Inc. v. City of Camas, this court found that the substantial evidence test is a deferential standard: "Under the substantial evidence standard, we will not substitute our judgment for that of the fact finder. Instead, we accept the fact finder's views regarding the credibility of witnesses and the weight accorded to reasonable but competing inferences." Therefore, the superior court correctly accepted the examiner's determinations regarding the weight and credibility to be given to reasonable but competing inferences. Furthermore, as discussed below, the substantial evidence test (i.e., "a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the order") is satisfied here.
Isla Verde Int'l Holdings Inc. v. City of Camas, 99 Wn.2d 127, 133-34, 990 P.2d 429 (1999) (citation omitted), review granted, 141 Wn.2d 1011 (2000); accord Sunderland Family Treatment Serv's. v. City of Pasco, 127 Wn.2d 782, 788, 903 P.2d 986 (1995).
Callecod, 84 Wn. App. at 673.
III. Did the hearing examiner correctly decide the case under CCC 18.404?
Although the CCC contains no standards for guiding the denial of a CUP, it does require certain findings to support approval:
In order to grant any conditional use, the hearings examiner must find that the establishment, maintenance or operation of the use applied for will not, under the circumstances of the particular case, be significantly detrimental to the health, safety or general welfare of persons residing or working in the neighborhood of such proposed use or be detrimental or injurious to the property and improvements in the neighborhood or to the general welfare of the county.
CCC 18.404.060(A) (emphasis added).
The appellants argue that the examiner denied their CUP for reasons that are not "significantly detrimental" to the neighborhood (i.e., traffic concerns, noise, fumes, diminution of the value of surrounding property, and community displeasure). This argument is also without merit.
Traffic Issues
The vehicular access, sight distance, and traffic safety issues the examiner relied on, do not support a finding that the appellants' gas station would be "significantly detrimental." The appellants' proposed convenience store and retail store are permitted uses. Therefore, vehicles would enter the same piece of property for both the permitted stores and the proposed gas station. Traffic issues cannot be significantly detrimental to bar the gas station because those same issues exist for the permitted uses.
Furthermore, in the context of land use permits, where traffic regulation "is necessary in the interest of the safety, convenience and welfare of the general public, that should be regulated which has a direct effect upon such general welfare. This can be, and is, done generally by traffic police, signs and other reasonable regulations[.]" Noise and fumes (from the gas station itself, not from vehicles entering and leaving it), however, might contribute to a finding that the appellants' proposed gas station would be a "significant detriment." The noise and fumes associated with the proposed gas station is potentially greater than what would result from the approved convenience store alone. But there is not substantial evidence in the record supporting a "noise and fumes" argument.
State ex rel. Wenatchee Congregation of Johovah's Witnesses v. City of Wenatchee, 50 Wn.2d 378, 385-86, 312 P.2d 195 (1957) (quoting Bd. of Zoning Appeals of Decatur v. Decatur, Ind. Co. of Jehovah's Witnesses, 233 Ind. 83, 117 N.E.2d 115 (Ind. 1954)).
Property Values
The examiner concluded that the appellants' proposed gas station would diminish neighbors' property values and that this impact would be significantly detrimental. The examiner based his conclusion on several letters from real estate agents who stated that the proposed stores and gas station would diminish the neighbors' property values. The appellants argue that these letters do not constitute substantial evidence because each discusses the combined impact of the proposed gas station and the permitted stores — not the gas station alone. This argument fails. If "X" is the impact that the stores and gas station would have on the neighbors' property values, then it is plausible that the stores (without the gas station) will have an impact that is something less than "X".
In Sunderland, the Supreme Court observed that "real estate expert opinion" is "more objective evidence" of the effect of a conditional use on property values than the fears of residents. Sunderland, 127 Wn.2d at 794.
Therefore, it is the additional impact that the gas station would have on the property values that contributes toward a "detriment," not the impact of the permitted stores. This meets the second test under the CCC ("detrimental or injurious to the property and improvements in the neighborhood"). CCC 18.404.060(A). Community Displeasure
The appellants argue that the examiner placed too much weight on community displeasure. While community opposition "may be given substantial weight, it cannot alone justify a local land use decision." Sunderland, 127 Wn.2d at 797. But the testimony of neighboring landowners may be weighed in reaching a land use decision when such testimony is substantiated by other evidence. The appellants claim that there is no evidence to substantiate the community's fears regarding noise, traffic, glare, fumes, criminal activity, and diminished property values. But as discussed above, evidence supports the fears relating to diminished property values. The examiner did not place too much weight on community displeasure; the decision was not "clearly erroneous." RCW 36.70C.130(1)(d).
On remand, the superior court ordered that the examiner 'consider 'community displeasure' as only one of many applicable factors, and shall afford only that weight to the testimony of neighboring landowners as is consistent with applicable case law.' Clerk's Papers at 470.
See Indian Trail Prop. Owner's Ass'n v. City of Spokane, 76 Wn. App. 430, 439, 886 P.2d 209 (1994) ("[A] zoning decision must relate to legal requirements. While community sentiment can be instrumental in the development of those legal requirements through the planning process, it alone cannot form the basis of a zoning decision."); see also Dep't of Corr. v. City of Kennewick, 86 Wn. App. 521, 533-34, 937 P.2d 1119 (1997) ("neighborhood fears that are not substantiated are not relevant"), review denied, 134 Wn.2d 1002 (1998).
A. The impacts of the proposed use are greater than the impacts of the permitted uses.
The proposed gas station would be located on land zoned CR-2 ("Rural Commercial"). Uses permitted in this zone, without any special or conditional permits, include: (1) retail food markets with up to 25,000-square-feet of gross floor area; (2) general retail stores (under 25,000-square-feet gross floor area); and (3) a restaurant, "with associated drinking places, alcoholic beverages." CCC 18.313.020.
In Hansen v. Chelan County, Division Three found that: "The effect of a proposed use on its neighbors will not support a denial of a special permit unless the effect is greater than that of uses permitted in the district without special permit." The court reasoned that "there was . . . no finding, or any evidence, that the effects of the proposed [use] were any greater than would occur if the Hansens used the property for uses permitted outright." Hansen, 81 Wn. App. at 139.
Hansen v. Chelan County, 81 Wn. App. 133, 139, 913 P.2d 409 (1996) (quoting 3 Robert M. Anderson, American Law of Zoning sec. 21.14, at 692 (3d ed. 1986)).
The appellants argue that any one of the permitted uses would have impacts (noise, traffic, etc.) that are as great or greater than their proposed gas station. Accordingly, they claim that the effect of the gas station on the neighbors will not support denial of their CUP. Clark County answers that Hansen is distinguishable and does not properly consider Sunderland, 127 Wn.2d 782. Under the appellants' reading of Hansen, it is irrelevant whether the property could accommodate a permitted use. But in Hansen, the permitted use would have allowed the Hansens to build single family or duplex dwellings on a 38.9 acre parcel — the property would obviously have accommodated the permitted use. Hansen, 81 Wn. App. at 134.
According to the appellants' traffic study, a 25,000-square-foot grocery store would generate more traffic than their proposed retail, convenience store, and gas station combined.
Clark County argues that under Hansen, community displeasure supported by other evidence (where opponents failed to show impacts greater than those of permitted uses) would not support denial. As such, Hansen would not support denial of a CUP under circumstances where under Sunderland, denial would be authorized. Clark County further argues that more recent land use decisions have not followed Hansen.
In Sunderland, the court held that '[w]hile the opposition of the community may be given substantial weight, it cannot alone justify a local land use decision.' Sunderland, 127 Wn.2d at 797. In Hansen, the court held that "[t]he effect of a proposed use on its neighbors will not support a denial of a special permit unless the effect is greater than that of uses permitted in the district without special permit." (quoting 3 robert m. anderson, american law of zoning sec. 21.14, at 692 (3d. ed. 1986)). Hansen, 81 Wn. App. at 139. Hansen and Sunderland are compatible. As the appellants point out, a proposed use may create community opposition without having an impact on the surrounding community.
There is no evidence in the record to support the appellants' assertion that they could construct a 25,000-square-foot store on their 1.82-acre parcel, while still complying with building codes. In fact, the examiner questioned whether the appellants' parcel could accommodate a building of such size.
Furthermore, the record contains evidence that the effects of the gas station (i.e., diminished property values) are greater than would occur if the appellants used their property for a permitted use. Thus, the examiner properly considered Hansen v. Chelan County.
B. Is a decision not based on CCC criteria outside the examiner's authority under LUPA?
In Clark County, an examiner may approve a conditional use only if he or she finds that the proposed use will not be (1) "significantly detrimental to the health, safety, or general welfare" of those in the neighborhood; or (2) "detrimental or injurious to the property and improvements" in the neighborhood or "to the general welfare of the county." CCC 18.404.060(A) (emphasis added). In his remanded final order, the examiner did not state that the appellants' conditional use would be "significantly detrimental." The appellants argue that the examiner failed to make the "significantly detrimental" finding required by CCC 18.404.060(A) and erroneously interpreted the applicable law.
The appellants cite Kennewick, 86 Wn. App. 521, for the proposition that "reduction in property values and disruption of quiet enjoyment are not [significantly] detrimental to the surrounding property owners." Br. of Appellant at 34. But the rule from Kennewick is that neighbors' "fears" must "be substantiated before the zoning authority may use them as a basis for its decision." Kennewick, 86 Wn. App. at 532.
In Kennewick, the neighbors' fears (that the proposed penal institution would increase crime in the area and decrease their properties' value) were unsubstantiated. The Department of Corrections presented a number of studies that penal institutions had no negative impacts on property values or public safety. Kennewick, 86 Wn. App. at 526. Here, the neighbors presented evidence that a gas station and convenience store would have a negative impact on their property values. The appellants presented no evidence to the contrary.
The examiner did, however, find that impacts from the proposed use would "not promote the residential qualities and residential property values of the neighbors." Clerk's Papers at 498. In addition, the examiner quoted this part of the code in the remanded final order. And in both of the examiner's decisions, he specifically discussed the requirements of CCC 18.404.060. Furthermore, failure to use the precise language of the ordinance should not undo an otherwise valid decision; as Clark County points out, such a result would place form over substance. Thus, under CCC 18.404.060 there was substantial evidence supporting the examiner's decision. Upon this basis alone, the appellants' CUP fails.
IV. What is the meaning of the terms "need" and "necessary" in CCC 18.313.090?
The appellants bore the burden of proof and had to submit "detailed information" to permit the examiner to find that:
1. The proposed use will support the natural resource activities and/or the needs of the rural community;
. . .
3. The proposed use is primarily for convenience and service needs necessary to support natural resource activities and/or the rural community and will not cause adverse impacts on surrounding natural resource activities.
CCC 18.313.090 (emphasis added).
The terms "needs" and "necessary" are undefined. But the Supreme Court has relied on the dictionary definition of the term "necessary" to mean: "something 'that cannot be done without: that must be done or had:
absolutely required : essential, indispensable[.]' Dev. Serv's. of Am., Inc. v. City of Seattle, 138 Wn.2d 107, 118, 979 P.2d 387 (1999) (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1511 (3d ed. 1986)). Furthermore, a panel of this court found that "necessary" means "Absolutely required: INDISPENSABLE' and 'Needed to bring about a certain effect or result." Thurston County v. Cooper Point Ass'n, 108 Wn. App. 429, 440, 31 P.3d 28 (2001) (quoting WEBSTER'S II NEW COLLEGE DICTIONARY 731 (1999)).
The appellants argue that we should not use this definition here. They argue that "need" should not be understood to mean "essential" but rather as a basic requirement of modern life. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1510-11 (3d ed. 1986). They conclude that the focus should be on whether the proposed use is necessary for society in general. Clark County answers that the examiner's definition of the undefined terms gives effect to the additional requirements (in CCC 18.313.090) for conditional uses in a rural commercial zone.
They claim that society is so dependent on automobiles and gasoline, that gas stations are needed in locations that are convenient to the community.
They conclude that since the proposed gas station would be located along a heavily traveled road, it is needed. If this construction is accepted, any party seeking a conditional use permit for a gas station could satisfy the "need" requirement by placing the station along any busy road.
The examiner concluded that the people who live in the area of the proposed gas station do not need it because there are others in the surrounding community. The examiner also reasoned that the appellants could place a station elsewhere. The appellants claim that this is unreasonable on its face.
The appellants cite Save Our Rural Env't v. Snohomish County, 99 Wn.2d 363, 371, 662 P.2d 816 (1983), for the proposition that the denial of a CUP cannot be based on the fact that there are alternative locations at which the proposed use could be located. There, the court found that although alternatives must be in an "environmental impact statement" to "require disapproval of the [proposed location] if alternatives existed goes beyond the scope of" the State Environmental Policy Act of 1971, RCW 43.21C. SORE, 99 Wn.2d at 371.
Here, the examiner relied on a dictionary definition of the term "necessary." Such practice is accepted in Washington courts. It is true that almost any conditional use could be defeated simply by showing that the neighboring community does not need the proposed use because another such use is within a few miles. But, this does not require reversal of the examiner's decision. There was substantial evidence of the availability of other gas stations and the appellant did not submit any studies that showed the necessity of additional gas stations. See RCW 36.70C.130(1) ("The court may grant relief only if the party seeking relief has carried the burden establishing one of the standards[.]"). Thus, as with CCC 18.404, there was substantial evidence supporting the examiner's decision and the appellants did not meet their burden. On this basis alone, the examiner's decision is sustainable.
See Am. Legion Post No. 32 v. City of Walla Walla, 116 Wn.2d 1, 8, 802 P.2d 784 (1991) ("In the absence of a legislative definition, courts may resort to the applicable dictionary definition to determine a word's plain and ordinary meaning unless a contrary intent within the statute appears.").
V. Is CCC 18.313.090 void for vagueness?
The appellants argue that CCC 18.313.090 is unconstitutionally vague because it contains several undefined terms (i.e., "rural community," "limited in size," "support natural resources," and "convenience and service needs"). But the appellants failed to raise this issue below.
Therefore, we refuse to review this issue. Nevertheless, the code section 'does not appear 'substantially incomprehensible' or 'so vague and indefinite as really to be no rule or standard at all."
See RAP 2.5(a)(3) (discretion to reach constitutional issues raised for the first time on appeal); see also Cobb v. Snohomish County, 86 Wn. App. 223, 235, 935 P.2d 1384 (1997) ("Constitutional issues not presented to the trial court in civil cases are generally not considered on appeal unless they involve the trial court's jurisdiction."), review denied, 134 Wn.2d 1003 (1998).
Postema v. Snohomish County, 83 Wn. App. 574, 587, 922 P.2d 176 (1996) (explaining the void for vagueness standard (quoting A.B. Small v. Am. Sugar Refining Co., 267 U.S. 233, 239, 45 S.Ct. 295, 69 L.Ed. 589 (1925); Exxon Corp. v. Busbee, 644 F.2d 1030 (5th Cir.), cert. denied, 454 U.S. 932 (1981)), review denied, 131 Wn.2d 1019 (1997); see also Gibson v. City of Auburn, 50 Wn. App. 661, 667, 748 P.2d 673 ("the vagueness test does not require a statute to meet impossible standards of specificity"), review denied, 110 Wn.2d 1028 (1988).
VI. Did the examiner engage in unlawful procedure or act in an arbitrary and capricious manner?
On remand, the superior court ordered the examiner to adhere to a number of requirements. The appellants claim that the examiner failed to conform his decision to these requirements. They argue that this amounts to unlawful procedure or arbitrary and capricious action, requiring reversal of the examiner's decision. Nevertheless, the trial court found no such deficiency and concluded that "[f]ollowing the second order of remand, the [e]xaminer responded to the [c]ourt's concerns point by point." Clerk's Papers at 608. The superior court is in the best possible position to determine whether the examiner complied with its instructions. There was no error.
We may reverse a hearing examiner's decision if he or she "engaged in unlawful procedure," "failed to follow a prescribed procedure," or issued a decision that is arbitrary and capricious. RCW 34.05.562(3)(c), (d).
See Gottileb v. Wiles, 11 F.3d 1004, 1013 (10th Cir. 1993) ("The district court is in the best position to determine whether its orders have been complied with, and we cannot hold that this determination was clearly erroneous.") aff'd, 11 F.3d 1004 (1993); see also Smith v. State, 698 So.2d 189, 208 (Ala.Crim.App. 1996) ("The trial court is in the best position to determine whether its discovery orders have been complied with, and we will not reverse its decision . . . unless an abuse of discretion has been shown."), aff'd, 698 So.2d 219 (Ala.), cert. denied, 522 U.S. 957 (1997); cf. Patterson by Patterson v. Coca-Cola Bottling Co. Cairo-Sikeston, Inc., 852 F.2d 280, 283 (7th Cir. 1988) ("This court will not set aside a trial court's discretionary order unless it is clear that no reasonable person could concur in the trial court's assessment of the issue under consideration.").
VII. Attorney fees on appeal
Clark County seeks its attorney fees on appeal, arguing that it prevailed before the examiner, the board, and the trial court. We may award fees to a county if it prevails in superior court and on appeal. RCW 4.84.370(2). The appellants answer that they substantially prevailed at superior court because the plan for the store was approved and the superior court remanded the examiner's first decision. We agree. As such, attorney fees are unwarranted. Affirmed.
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.
MORGAN, P.J. and QUINN-BRINTNALL, J.