CLEAN WATER ALLIANCE v. WHATCOM CTY., 45818-3-I (Wash.App. 6-4-2001)

No. 45818-3-I.The Court of Appeals of Washington, Division One.
Filed: June 4, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Skagit County, No. 99-2-00618-9, Hon. Susan K. Cook, November 18, 1999, Judgment or order under review.

Counsel for Appellant(s), Allena M. Kanne, 706 Dupont St, Bellingham, WA 98225-3626.

David B. Hunter, 706 Dupont, Bellingham, WA 98225.

Counsel for Petitioner(s), Allena M. Kanne, 706 Dupont St, Bellingham, WA 98225-3626.

David B. Hunter, 706 Dupont, Bellingham, WA 98225.

Counsel for Respondent(s), Karen Frakes, Deputy Prosecuting Attorney, Whatcom Co Pros Office, 311 Grand Avenue, Bellingham, WA 98225.

Heather Wolf, P.O. Box 1678, Bellingham, WA 98227-1678.

Amicus Curiae on behalf of 1000 Friends of Washington, Jeffrey M. Eustis, Law Offices of J. Richard Aramburu, 505 Madison St. #209, Seattle, WA 98104.

GROSSE, J.

Even under the relaxed standards in the area of land use decisions, a party seeking review of an issue must raise it in the course of the proceedings below in sufficient manner to place other parties on notice and to permit a record to be developed. Here, while the appellants Clean Water Alliance and Sherilyn Wells (collectively referred to as the Alliance) vigorously challenged the nature of respondent Chen’s vested rights as a result of his 1992 preliminary plat application, they did not raise the issue of whether that 1992 application was in fact complete until the proceeding in superior court. Thus, the record before the trial court demonstrated that Whatcom County considered the application sufficiently complete in 1992 to vest Chen’s rights as of that date and the trial court’s finding of fact in that regard is supported by substantial evidence. And, because we have been given no persuasive authority to the contrary, we hold that the Alliance is barred from raising the issue on appeal. Moreover, the Alliance has advanced no other arguments meriting reversal. We affirm.

FACTS
Chen owns a 40-acre parcel in Whatcom County for which he filed a subdivision application in May of 1992. The parcel is within the Lake Whatcom Watershed. In July of 1992, Whatcom County passed a temporary critical areas ordinance. In December of 1992, Whatcom County, the City of Bellingham, and Whatcom County Water District 10 (Water District) entered a joint resolution adopting goals for the Lake Whatcom Watershed. This agreement imposed additional restrictions on development in the watershed.

In September of 1993, the Water District enacted a moratorium on developer extension agreements for new subdivisions. Apparently this series of events delayed processing of Chen’s application and resulted in a dispute between Chen and the Water District.

In any event Chen and the Water District reached a settlement in 1995 wherein the Water District agreed to provide Chen’s proposed subdivision with water and sewer services. The Water District provided Whatcom County with verification of the agreement in 1997, and in 1998 the Whatcom County Health Department recommended approval of the preliminary plat subject to the Water District’s proof of water and sewer availability. Also after the settlement, Whatcom County reissued a SEPA[1] mitigated determination of non-significance in which it concluded that no significant adverse environmental impacts were expected.[2] In October of 1998, the Whatcom County Hearing Examiner conducted a multi-day hearing in which members of the public were allowed to speak and voice challenges to Chen’s application. The two major areas of public concern were the impacts the subdivision would have on traffic and Lake Whatcom, a water source that was already under pressure.

After the hearing, the Whatcom County Hearing Examiner approved the application. The hearing examiner found that Chen’s application was complete in 1992 and therefore vested under the laws in effect at that time. The hearing examiner held that because Chen’s application vested in May of 1992 the subdivision was not subject to the more stringent development regulations later imposed, particularly by the December 1992 joint resolution adopting goals for the Lake Whatcom Watershed.

The Alliance appealed the hearing examiner’s decision to the Whatcom County Council (Council). The Alliance argued that Chen’s vested right to have his application considered under the law in effect in May of 1992 had expired because Chen did not actively pursue his application. It did not argue that Chen’s application was incomplete. The Council affirmed the hearing examiner and adopted his findings of fact and conclusions of law as the Council’s own.

The Alliance then brought a Land Use Petition Act (LUPA)[3] appeal in Skagit County Superior Court. There, for the first time, the Alliance challenged whether Chen’s application was complete in 1992. The court held that the Alliance’s challenge to the vesting date of Chen’s application had not been properly raised before the hearing examiner. It also held that the hearing examiner’s findings and conclusions were supported by substantial evidence. Accordingly, the superior court affirmed the hearing examiner and dismissed the petition. The Alliance filed this appeal.[4]

DISCUSSION
The Alliance’s appeal to this court involves four arguments: (1) Chen’s application was not complete in 1992 so his right to develop the property did not vest in 1992 with the result that the subdivision is subject to more stringent development regulations that were adopted after 1992; (2) even if Chen’s rights did vest in 1992, they expired due to his delay in obtaining final plat approval; (3) even if Chen’s rights did vest in 1992, protection of public health, safety, and welfare supersedes those vested rights; and (4) substantial evidence did not support the determinations of the hearing examiner or the Council. Chen and Whatcom County raise two counter-arguments: (1) the Alliance did not raise the issue of the vesting of Chen’s application to the hearing examiner or the Council and thus failed to exhaust administrative remedies on that issue; and (2) the Alliance lacks standing. Because the claims made by Chen and Whatcom County are threshold questions, we address them first. We apply the usual standard of review.[5]

Exhaustion of Remedies
Under LUPA, parties must exhaust their administrative remedies prior to judicial review of administrative actions.[6] And, in order to do so, a party must raise the appropriate issues before the agency.[7] An issue is properly raised to the administrative agency when there is more than `simply a hint or a slight reference to the issue in the record.’[8]
Here the Alliance did not provide either the hearing examiner or the Council with more than a hint or slight reference in the record that it sought to challenge the completeness of Chen’s application.[9] Indeed, the Alliance’s challenge to it was that it was not vested due to inaction, not that it was incomplete.

The Alliance now claims in retrospect that Paul States, a member of the public, raised the issue of application completeness in a letter he submitted to the hearing examiner dated October 20, 1998. In that letter States claimed Whatcom County failed to comply with requirements under the Washington Administrative Code. He referred to the vesting date, but only in passing.[10] That passing reference was not a challenge to the determination of the vesting date, nor was it sufficient to put the hearing examiner on notice that anyone was challenging the state of completeness of the application.

The Alliance made two arguments to the Council relative to the vesting of Chen’s development rights. First, the Alliance argued (as it does here) that Chen’s 1992 vesting date expired because he did not actively pursue his application. Second, the Alliance argued that despite `the alleged 1992 vesting’ because of new facts and analyses regarding the water quality of Lake Whatcom more stringent standards should nonetheless have been imposed on Chen’s application. Neither of these arguments touch on the question of whether the application was complete in 1992.

Because the Alliance failed to raise the issue of whether Chen’s application was complete before either the hearing examiner or the Council, we are unable to consider that challenge now. We evaluate the remaining claims according to the hearing examiner’s determination that the application was complete in 1992.[11] Public Health, Safety, and Welfare The hearing examiner concluded Chen’s application was fully complete on May 27, 1992. Thus, Chen’s right vested to have his application evaluated under the laws as they existed in 1992.[12] The Alliance argues that Chen’s vested right expired because he did not pursue his application in a timely manner. In its opening brief, the Alliance cites Clark County Public Utility District No. 1 v. Wilkinson[13]
for the proposition that `[t]he equitable doctrine of laches prevents a developer from using inexcusable delays to prejudice surrounding neighbors.’ The court in Wilkinson held no such thing. It explained the doctrine of laches which prevents inexcusable delay in asserting a legal claim.[14] But, Wilkinson involved a petition for writ of certiorari in a collective bargaining dispute and did not pertain to developer’s vested rights in any way whatsoever.

The Alliance then goes on to claim in its opening brief that under established Supreme Court case law in Erickson Associates, Inc. v. McLerran,[15] Chen lost his vested rights. Again, the Alliance’s use of authority is misplaced. The court in Erickson held that under a Seattle municipal ordinance, a developer does not receive vested rights in a master use permit until such time as the permit is approved. Thus, in Erickson vested rights did not expire, rather they never vested in the first place.

This court will not consider arguments that are not supported by relevant citations to authority or the record.[16] Because Erickson and Wilkinson were the only two cases the Alliance cited in support of this argument, the Alliance has failed to support the argument with any relevant authority. The Alliance also failed to put forth evidence that Chen abandoned his application. Moreover, there is evidence in the record that Chen did not abandon his application, but rather that it was delayed by the Water District’s refusal to provide him sewer and water service, which in turn deprived his subdivision application of the approval of the Whatcom County Department of Health. Chen’s right that vested in 1992 did not expire.

The Alliance claims the needs of public health, safety, and welfare supersede Chen’s vested right. The Alliance goes on to argue that in the interest of public health, safety, and welfare we should impose upon Chen the zoning restrictions that were enacted after his rights vested. Specifically, the Alliance argues that public health, safety, and welfare is threatened by the subdivision’s impacts on the watershed and water quality of Lake Whatcom.

The Alliance incorrectly states that RCW 58.17.110 supersedes vested rights. Rather, RCW 58.17.110 specifies one set of requirements that must be satisfied before a local government may approve a subdivision application. Under the vested rights doctrine at issue in this case, the right that vests is the right to have the application considered under the law in effect at the time a complete application was submitted. Moreover, Washington’s vested rights doctrine balances the public interest and the interests of developers.[17] RCW 58.17.110 requires that before county or municipal legislative bodies approve a subdivision they must determine whether the public interest will be served by the subdivision after considering whether appropriate provisions are made for public health, safety, and welfare, all with regard to a number of factors including open space, drainage, roads, potable water supplies, and sanitation.[18]

The subdivision shall not be approved unless the legislative body makes written findings that appropriate provisions are made for public health, safety, and welfare and that the public use will be served by the subdivision.[19] Whatcom County has satisfied the requirements of RCW 58.17.110. When the Council issued its decision affirming the decision of the hearing examiner, it adopted the findings of facts and conclusions of law of the hearing examiner. With regard to the concerns about the Lake Whatcom water quality, the hearing examiner entered detailed written findings of fact about the provisions that were made for factors relating to public health, safety, and welfare. The hearing examiner also entered findings that the proposal made `adequate provisions for the public health, safety, and general welfare, and other requirements as set forth in RCW 58.17.110.’[20] Thus, Whatcom County complied with the requirements of RCW 58.17.110.

The Alliance argues that contrary to the findings by the hearing examiner and the Council the subdivision poses a threat to public health, safety, and welfare and that the hearing examiner and the Council should have so found. However, while the Alliance may disagree with the Council’s findings, this court has no discretion to re-hear the factual arguments or to substitute the Alliance’s beliefs for the Council’ findings. We are obligated to uphold the Council’s findings so long as they are supported by substantial evidence. Here there was substantial evidence to support the Council’s findings. The record contained an October 1998 staff report by the Whatcom County Planning and Development Services that went though each of the factors listed under RCW 58.17.110
and explained why they were satisfied. The report also discussed the problems with the Lake Whatcom water quality and proposed conditions that should be imposed on the subdivision.

The hearing examiner adopted the conditions in its Findings of Fact, Conclusions of Law and Decision. The evidence in the record showed that more than one-third of the subdivision would remain undisturbed native forest. The subdivision would also employ state-of-the-art stormwater cleansing in detention ponds.

There was also extensive testimony about the filtration effect of the natural vegetation and set back areas to preserve this vegetation along streams. Substantial evidence supported the findings of the Council. Chen’s Legal Fees Chen seeks to recover his legal fees. The party that prevails on appeal may recover fees if that party also prevailed in all prior judicial proceedings and prevailed before the local government.[21]
So long as a party has satisfied the requirements of the statute, the award of fees is mandatory and does not leave this court any discretion.[22]
Chen has prevailed at every level and is entitled to his fees, although his recovery is limited to the fees he incurred in his appeal to this court.[23]

We affirm with a grant of fees to Chen.

WE CONCUR: FAYE C. KENNEDY, ANNE L. ELLINGTON.