Opinion
No. 35592-2-II.
March 25, 2008.
Appeal from a judgment of the Superior Court for Clark County, No. 06-2-00346-6, Barbara D. Johnson, J., entered October 20, 2006.
Reversed and remanded by unpublished opinion per Bridgewater, J., concurred in by Van Deren, A.C.J., and Penoyar, J.
Charles and Billye Lawrence appeal from the Camas City Council's approval of Private Capital, L.L.C.'s application to build the Hancock Springs subdivision. We hold that the city council did not comply with its ordinance to make every reasonable effort to preserve existing significant trees because the design of the subdivision was uppermost in its consideration, not trees. We reverse and remand to the city council to hold a hearing wherein it will determine whether Private Capital's subdivision design reasonably preserves the trees that are in good or moderate condition, in compliance with Camas Municipal Code.
FACTS
On February 9, 2005, Private Capital applied to the city of Camas (City) for approval to build the Hancock Springs subdivision. Private Capital proposed to develop a 16-lot subdivision on approximately eight acres of land located in the Prune Hill area of Camas. Private Capital's application qualified as a Type III permit application under Camas Municipal Code (CMC). See former CMC 18.55.030 (2004).
The city of Camas amended chapter 18.55 CMC in May 2006, after the city council proceedings took place in this case. See Camas, WA, Ordinances 2443 § 3 (Ex. A (part)) (May 2006).
The City advised Private Capital of its incomplete application status on March 8, 2005. But by the following June, the City deemed the application complete. Then on August 26, 2005, the City issued a Mitigated Determination of Non-Significance (MDNS).
Charles and Billye Gaye Lawrence, who own property adjacent to the proposed subdivision, objected to Private Capital's application. On September 9, 2005, they filed a State Environmental Policy Act (SEPA) appeal under former CMC 18.55.165 (2004).
On October 18, 2005, the planning commission conducted a hearing, consolidating both the Lawrences' SEPA appeal and the hearing on Private Capital's subdivision application. Following a full hearing and extensive debate, the planning commission recommended approval of the subdivision with a number of conditions. It also recommended denial of the SEPA appeal. Thereafter, the Lawrences and Private Capital submitted written argument to the city council. Through their attorney, the Lawrences requested that the city counsel either deny the application or remand it to the planning commission for further consideration of issues related to tree removal, wetlands, and hydrogeological implications of the proposed subdivision. At the beginning of the meeting on November 21, 2005, the city council unanimously voted to remand the application to the planning commission for additional testimony on wetlands and habitat.
Following the remand, the planning commission held a second hearing on December 20, 2005. The purpose of this hearing was to take additional testimony from all parties regarding the contested issues of wetlands and habitat. Private Capital proposed to reduce the number of lots from 16 to 14 to further address the wetland mitigation concerns. Following a discussion, the planning commission recommended approval of a 14-lot subdivision, with conditions. In addition, the planning commission again recommended denial of the Lawrence's SEPA appeal.
On January 17, 2006, the city council conducted a closed record hearing, wherein it approved the revised 14-lot subdivision application. The following day, the city council issued a first notice of final decision consistent with its oral decision during the January 17 proceeding. The city council later withdrew this notice of decision and, on March 6, 2006, it approved Resolution No. 1044 and adopted findings for Hancock Springs subdivision.
The Lawrences appealed to the Clark County Superior Court against Private Capital and the city of Camas. The superior court affirmed the city council's decision to approve the application. The Lawrences timely appealed.
The original record for this appeal did not include the transcript from the January 17, 2006 city council hearing. Nor did it include the geotechnical engineering analysis from Ash Creek Associates, Inc., which supported the city council's conclusion that Private Capital met the geotechnical requirements sufficient to meet SEPA mitigation requirements and approve the subdivision under the Camas Municipal Code. After we requested that the parties submit these missing materials and our court clerk sent a letter compelling them to submit the missing materials within 15 days, the parties complied.
ANALYSIS I. Standard of Review
The Lawrences challenge the city council's decision under the Land Use Petition Act (LUPA), chapter 36.70C RCW. LUPA provides a statutory standard of review for land use petitions. HJS Dev., Inc. v. Pierce County ex rel. Dep't of Planning Land Servs., 148 Wn.2d 451, 467, 61 P.3d 1141 (2003) (citing Chelan County v. Nykreim, 146 Wn.2d 904, 916-17, 52 P.3d 1 (2002)).
Under RCW 36.70C.130(1), a reviewing court may grant relief from a land use decision if the Lawrences carry their burden in establishing one of the six standards of relief:
(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.
Standards (a), (b), (e), and (f) present questions of law that an appellate court reviews de novo. Cingular Wireless, LLC v. Thurston County, 131 Wn. App. 756, 768, 129 P.3d 300 (2006) (citing HJS Dev., 148 Wn.2d at 468). Standard (c) concerns a factual determination that an appellate court reviews for substantial evidence. Cingular Wireless, 131 Wn. App. at 768. And finally, the clearly erroneous test under (d) involves applying the law to facts. Cingular Wireless, 131 Wn. App. at 768 (citing Citizens to Pres. Pioneer Park, LLC v. City of Mercer Island, 106 Wn. App. 461, 24 P.3d 1079 (2001)).
To grant relief under this chapter, we need not find that the city council engaged in arbitrary and capricious conduct. RCW 36.70C.130(2). In addition, we base our review on the record created before the hearing examiner. RCW 36.70C.120.
II. Evidence Submitted to the City Council
The Lawrences contend that the city council twice accepted new evidence not previously presented to the planning commission, in violation of the CMC. This argument is not well taken.
The Lawrences' argue that the city council also violated the line of cases under Maranatha Mining, Inc. v. Pierce County, 59 Wn. App. 795, 801 P.2d 985 (1990), by accepting illegal evidence and, thereafter, approving Private Capital's permit. But Maranatha Mining is inapposite. There, the county council denied a permit, even though the applicant demonstrated a willingness and ability to mitigate each and every adverse impact the opponents raised and the hearing examiner found the proposed use complied with all zoning impacts and posed no adverse affect. We held the county "[c]ouncil based its decision on community displeasure and not on reasons backed by policies and standards as the law requires." Maranatha Mining, 59 Wn. App. at 805. The decision was arbitrary and capricious. But here, the city council affirmed the planning commission's recommendation based on an extensive report including factual findings and the administrative record. Thus, Maranatha Mining is distinguishable and does not guide our analysis in deciding this issue. See Cingular Wireless, 131 Wn. App. at 784-85.
Review of this issue compels us to determine whether the city council "engaged in unlawful procedure or failed to follow a prescribed process." RCW 36.70C.130(1)(a). This is a question of law, reviewed de novo. Cingular Wireless, 131 Wn. App. at 768.
The Camas Municipal Code sets forth the hearing procedures to process Type III permit applications. First, the planning commission conducts a public hearing, after which it makes a recommendation to the city council. Former CMC 18.55.180(D) (2004). The planning commission's recommendation is based on the record, including a staff report, and advises the city council to approve, approve with conditions, or deny an application. Former CMC 18.55.180(C), (D). The city council holds a closed record meeting to consider the planning commission recommendation and then makes the final decision on the matter. Former CMC 18.55.180(F). In rendering that decision, "[t]he City Council may approve, approve with conditions, deny, or remand the matter for further specific consideration." Former CMC 18.55.180(F) (emphasis added).
Parties may not appeal the planning commission's recommendations but may submit written arguments to refute the recommendation. Former CMC 18.55.200(C) (2004). The arguments must be submitted at least seven days before the city council meeting addressing the application. Former CMC 18.55.200(C). Based on the record before us, the city council complied with their procedural requirements during the November 21, 2005 city council meeting and the January 17, 2006 city council meeting.
A. November 21, 2005 City Council Meeting
The Lawrences assert that the city council improperly accepted new evidence into the record before remanding the matter back to the city council for further consideration on specific issues. Under former CMC 18.55.180(F), the city council may remand a matter "for further specific consideration." This is precisely what the city council did on November 21, 2005.
Contrary to the Lawrences' assertion, the city council did not accept or review any new evidence at the November 21 closed hearing. At the opening of the meeting, Mayor Paul Dennis stated that the matter should be remanded back to the planning commission to consider new information the parties submitted that he "deemed as adding to the record." CP at 309. The mayor immediately asked for a motion to remand. Although the city councilwoman making the motion included the phrase, "new information that has been introduced into the record," the information had not, in fact, been introduced at that juncture. CP at 309. Furthermore, the Mayor restated the motion for vote, correctly referring to the information as not being introduced to the record but as "additional information brought forward." CP at 309. The city council then voted unanimously to remand "for consideration of the additional information brought forward on the wetlands . . . [a]nd habitat." CP at 309.
This procedure complied with former CMC 18.55.180(F). It was not an unlawful procedure or a failure to follow prescribed process and does not warrant relief from the city council's LUPA decision to approve Private Capital's application. See RCW 36.70C.130(1)(a).
Even if the city council erroneously accepted new evidence, the doctrine of invited error precludes the Lawrences' complaint. Under that doctrine, a party's own action during trial creates the error that it may not thereafter complain of on appeal. Shanlian v. Faulk, 68 Wn. App. 320, 329, 843 P.2d 535 (1992) (finding that an appellant who introduced evidence outside scope of administrative record could not assign error to the trial court's reliance on other matters outside of the record).
Here, the Lawrences submitted additional comments on the planning commission's recommendation to approve Private Capital's application. In their comments, they requested that the city council "deny the project (or at least remand back to correct these errors)." AR at E. 7. The city council took both the Lawrences' additional comments and Private Capital's additional comments under consideration and, on the city attorney's recommendation, remanded the specific issues that "add[ed] to the record" back to the planning commission to conduct an open hearing. CP at 309.
In other words, the city council did exactly what the Lawrences asked it to do: it remanded the case to the planning commission to consider new evidence. Thus, under the doctrine of invited error, the Lawrences may not now complain that the city council's actions warrant reversal of their ultimate LUPA decision. Shanlian, 68 Wn. App. 329.
The Lawrences complain that the council only remanded to consider the specific issues of wetland and habitat and not other issues they raised in their comments. But as discussed above, it was within the council's authority under former CMC 18.55.180(F) to remand for consideration of specific issues.
B. January 17, 2006 City Council Meeting
The Lawrences also argue that during the January 17, 2006 closed city council meeting, Private Capital's geotech contradicted his report detailing the hydrogeological impacts of the proposed development and recommended mitigation measures. They contend that Private Capital did not meet SEPA requirements set forth in RCW 58.17.110 to sufficiently mitigate significant hydrogeological impacts of the project. This argument fails.
Under former CMC 18.55.200(C), the city council may address the parties' written arguments submitted seven days before a closed meeting if necessary but may not take additional evidence. This is precisely what occurred on January 17, 2006.
After hearing statements from both parties, the city council asked various questions to clarify the hydrogeological impacts of the project. In response to the city council's convoluted discussion as to whether Private Capital complied with hydrogeological standards sufficient to satisfy SEPA mitigation standards, Stuart Albright from Ash Creek Associates, Inc., addressed the panel. In a brief statement he said:
The council also asked several questions to clarify the preservation of existing significant trees.
There is nothing in the report that says this site can't be graded in wet weather. We said we strongly recommend it be done in dry weather and it specifically references the development costs are significantly higher in wet weather. It's possible that it can be done in wet weather. We recommend to our client that they not do so but I don't believe there's a necessity for this to be a mandatory dry weather project.
CP at 505.
Indeed, Albright's statements at the January 17, 2006 meeting did not contradict his report. He merely restated the Ash Creek report recommendation. The Ash Creek report states:
We have provided recommendations for dry weather construction as well as other geotechnical concerns and issues relative to the project site. Because of the moisture-sensitive, near-surface soils and the potential for encountering shallow perched groundwater during the wet months, Ash Creek Associates strongly recommends that the site grading and utility trenching be conducted during extended periods of relatively dry weather conditions. If wet weather construction is attempted, development costs could be significantly higher due in part to the increased cost of imported granular fill, maintenance of soft subgrade areas generated as a result of construction activities, and installation of a granular working blanket over construction trafficked portions of the site.
Supp. CP (12/21/07) Ash Creek Associates, Inc. Geotechnical Engineering Analysis at 8.
Thus, the record clearly shows that the city council did not take additional evidence during the January 17, 2006 meeting. Albright merely reiterated the recommendation set forth in his report. Accordingly, the Lawrences' assertion that the city council violated procedure by taking additional evidence has no merit.
Nonetheless, even if the city council did violate procedure by taking additional testimony from Albright regarding the hydrogeological determination, the error was harmless. Harmless error is one that is "not prejudicial to the substantial rights of the party assigning [error,]" and does not affect the outcome of the case. City of Bellevue v. Lorang, 140 Wn.2d 19, 32, 992 P.2d 496 (2000) (citations omitted).
The Lawrences argue that but for the Albright's statement on January 17, 2006, they could have "easily won on the hydrogeological issue." Br. of Appellant at 36. But the Lawrences ignore the plethora of evidence throughout the entire record relating to the hydrogeological issue. Thus, their argument lacks merit.
Notwithstanding Albright's comments during the January 17, 2006 city council meeting, there is substantial evidence supporting the city council's conclusion that Private Capital met SEPA requirements set forth in RCW 58.17.110, sufficient to mitigate significant hydrogeological impacts of the project.
RCW 58.17.110(2) provides in relevant part:
A proposed subdivision and dedication shall not be approved unless the city, town, or the county legislative body makes written findings that: (a) Appropriate provisions are made for the public health, safety and general welfare and for such open spaces, drainage ways, streets or roads, alleys, other public ways, transit stops, potable water supplies, sanitary wastes, parks and recreation, playgrounds, schools and schoolgrounds, and all other relevant facts, including sidewalks and other planning features that assure safe walking conditions for students who only walk to and from school; and (b) the public use and interests will be served by the platting of such subdivision and dedication.
The City's written finding regarding its hydrogeological determination states:
An MDNS was issued on August 26, [sic] 2005. The conditions of mitigation set forth in the MDNS related to erosion control, storm water runoff, noise, and emissions.
The city issued the MDNS on August 25, 2005.
AR at AB.
The Lawrences complain that the City did not adopt Redmond Associates recommended conditions to schedule site grading and foundation during the drier summer months and that Redmond Associates be retained to monitor construction. They further imply that Private Capital solicited the Ash Creek report only after the Redmond Report, its first geotech evaluation, recommended site excavation during the drier summer months. But the Lawrences misconstrue the facts.
Both parties and their experts extensively discussed the hydrogeological issues at the planning commission meetings. In addition, the planning commission considered three separate geotech reports in determining whether Private Capital's project complied with RCW 58.17.110. Furthermore, during the October 18, 2005 public planning commission hearing, Albright explained that Redmond Associates were no longer working in the community. He conveyed Private Capital's concern that the Redmond report was inadequate. Private Capital was concerned that Redmond Associates did not make a site visit or read other relevant geotechnical or geological reports. Therefore, Private Capital retained Ash Creek Associates to conduct a thorough geotechnical analysis of the site. Finally, Albright testified that he had no problems with the Redmond report but that his report merely supplanted the work Redmond Associates had provided.
Considering the record in its entirety, there is no evidence that the Lawrences were prejudiced by any comments made during the January 17, 2006 city council meeting. Additionally, there is substantial evidence supporting the city council's determination that Private Capital's application complied with SEPA mitigation requirements set forth in RCW 58.17.110. Therefore, there was no error in this regard.
III. Every Reasonable Effort to Preserve Existing Significant Trees
The Lawrences next assert that the city council erred "when it concluded a developer could `preserve existing significant trees' under CMC 17.19.030(A)(2) by cutting them down and replacing them with saplings." Br. of Appellant at 13. Private Capital responds that the city council properly found that Private Capital's Type III permit application complied with CMC 17.19.030.
The city of Camas has revised CMC 17.19.030 since these proceedings took place, but the City did not revise the specific provision at issue here, CMC 17.19.030(A)(2). Compare former CMC 17.19.030(A)(2) (2004) with CMC 17.19.030(A)(2) (2007).
Whether the city council properly found that Private Capital complied with CMC 17.19.030(A)(2) involves a two-part analysis, reviewing construction of the ordinance and the city council's application of the ordinance to the facts of this case. See West Hill, LLC v. City of Olympia, 115 Wn. App. 444, 448, 63 P.3d 160 (2003). Statutory construction is an issue of law, which we review de novo. West Hill, LLC, 115 Wn. App. at 448. But because the city council applied CMC 17.19.030(A)(2) to the facts of this case, we cannot overturn its decision unless it is clearly erroneous. West Hill, LLC, 115 Wn. App. at 448.
Municipal ordinances, such as CMC 17.19.030(A)(2), are local statutes that we construe according to the rules of statutory construction. McTavish v. City of Bellevue, 89 Wn. App. 561, 565, 949 P.2d 837 (1998). Where a statute is clear on its face, we give effect to that plain meaning as an expression of legislative intent. Dep't of Ecology v. Campbell Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). Plain meaning is discerned from viewing the words of a particular provision, together with related statutory provisions, and the statutory scheme as a whole. Campbell Gwinn, 146 Wn.2d at 11. If after this inquiry, the statutory provision remains susceptible to more than one reasonable meaning, then the statute is ambiguous and it is appropriate for a court to resort to aids of construction such as legislative history. Campbell Gwinn, 146 Wn.2d at 12.
Here, the plain meaning of the significant tree preservation requirement is apparent from the language of CMC 17.19.030(A)(2) and related ordinances. It states in pertinent part:
Vegetation. In addition to meeting the requirements of CMC Chapter 18.31, Tree Regulations, every reasonable effort shall be made to preserve existing significant trees and vegetation, and integrate them into the land use design.
(Emphasis added.)
The Camas Municipal Code defines "significant trees" and the term "shall," but does not define the other terms in the contested phrase. The Lawrences focus on the term "every," defining it to mean "each single one without exception." Br. of Appellant at 14. They also argue that the record does not establish that Private Capital made each single reasonable effort without exception to preserve existing significant trees.
"`Significant trees' means evergreen trees eight inches in diameter or greater, as measured four feet above existing grade, and deciduous trees, other than red alder or cottonwood, twelve inches in diameter, measured one foot above the root crown." CMC 18.31.040.
"Shall" means mandatory. CMC 1.04.010(G).
But in construing the statute, the Lawrences gloss over the term "reasonable." The common definition of "reasonable" is "being in agreement with right thinking or right judgment . . . not conflicting with reason; not absurd; not ridiculous." Webster's Third New International Dictionary 1892, (3d ed. 2002). In addition, the common definition of the word "preserve" is to keep safe from injury harm or destruction. Webster's Third New International Dictionary 1794, (3d ed. 2002).
Taking these terms together, on its face, CMC 17.19.030(A)(2) requires applicants to make reasonable effort, without exception, to keep significant existing trees safe from harm or destruction. In other words, the city council cannot require applicants to make unreasonable efforts to protect such trees. The city council's application of this provision to Private Capital's application should not be overturned in this case unless its application is clearly erroneous. West Hill, LLC, 115 Wn. App. at 448.
A decision is clearly erroneous when the reviewing court is "left with a definite and firm conviction that a mistake has been committed." Norway Hill Preservation and Prot. Ass'n v. King County Council, 87 Wn.2d 267, 274, 552 P.2d 674 (1976) (citation omitted); see also Cingular Wireless, 131 Wn. App at 768. The reviewing court must be deferential to factual determinations by the highest forum below that exercised fact-finding authority. Peste v. Mason County, 133 Wn. App. 456, 477, 136 P.3d 140 (2006) (citing Citizens to Preserve Pioneer Park, 106 Wn. App. at 474), review denied, 159 Wn.2d 1013 (2007). We review facts for substantial evidence. Peste, 133 Wn. App. at 477. Substantial evidence is evidence sufficient to convince an unprejudiced, rational person that a finding is true. Peste, 133 Wn. App. at 477.
The record is unclear as to whether the planning commission or the council was the highest fact finding authority in this case. Although Private Capital implies the council was exercising original jurisdiction, the Lawrences contend the council's jurisdiction is irrelevant to their appeal. In any event, the city council adopted the planning commissions' findings and, thus, we defer to the council's findings.
The city council's findings state, "[t]he applicant submitted a tree study that complies with code. The mitigation measures proposed by the applicant satisfy the preservation measures of CMC 17.19.030, and adverse impacts will be mitigated through replanting." AR at AB. Based strictly on the city council's findings, it appears that it applied CMC 17.19.030 erroneously because it states that Private Capital's mitigation measures, i.e. replanting, satisfy the preservation measures of CMC 17.19.030.
We hold that Private Capital failed to comply with CMC 17.19.030 and was clearly erroneous. The city council did not require Private Capital to propose alternate designs, such as smaller building envelopes, to avoid removal of existing significant trees. Furthermore, the tree report recommends preserving only those significant trees that do not conflict with the proposed development. It specifies that "[t]rees clearly conflicting with proposed design or with significant structural issues were assigned a poor suitability rating and were removed from the site plan graphic." AR at S (Tree Conservation Plan Report, Feb. 1, 2005, at 9). Finally, although the tree report recites possible reasons to remove existing significant trees, including (1) invasive species, (2) structural defect and health deterioration, and (3) ice damage, it provides no further analysis supporting its recommendations to save specific trees.
The language in the tree report coupled with the city council's failure to require proposed alternate designs aiming to preserve existing significant trees is dispostive; we are left with a firm and definite conviction that a mistake has been committed. We hold that the city council's decision that Private Capital complied with CMC 17.19.030 was clearly erroneous. See Peste, 133 Wn. App. at 477. The existing tree report emphasizes the design and made the trees secondary to the design. Upon remand, the city council must reverse the process, i.e., only approve Private Capital's subdivision application if its design conforms to the existing significant trees. Given our holding, we reverse the city council's decision and remand for a hearing consistent with this opinion. RCW 36.70C.140 ("[t]he court may affirm or reverse the land use decision under review or remand it modification or further proceedings.").
Because we remand the matter for a hearing on the applicant's reasonable efforts to preserve existing significant trees, we do not address Lawrences' argument regarding findings because the city council will generate findings and conclusions under its ordinance CMC 2.32.050.
IV. ATTORNEY FEES
Private Capital seeks attorney fees on appeal under RCW 4.84.370(1), which provides:
(1) [R]easonable attorneys' fees and costs shall be awarded to the prevailing party or substantially prevailing party on appeal before the court of appeals . . . of a decision by a county . . . to issue, condition, or deny a development permit involving a site-specific rezone, zoning, plat, conditional use, variance, shoreline permit, building permit, site plan, or similar land use approval or decision. The court shall award and determine the amount of reasonable attorneys' fees and costs under this section if:
(a) The prevailing party on appeal was the prevailing or substantially prevailing party before the county.
(b) The prevailing party on appeal was the prevailing party or substantially prevailing party in all prior judicial proceedings.
Here, the city council approved Private Capital's application, subject to conditions. The superior court affirmed the city council's decision, but we reverse. Therefore, Private Capital is not the prevailing party or substantially prevailing party on review. The Lawrences do not qualify under the statute; we do not award any attorney fees under RCW 4.84.370.
Reversed and remanded for a hearing consistent with the opinion.
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.
VAN DEREN, A.C.J., PENOYAR, J., concur.