Aho Construction I, Inc. v. City Of Moxee ( 2018 )


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  •                                                             FILED
    DECEMBER 6, 2018
    In the Office of the Clerk of Court
    WA State Court of Appeals, Division III
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION THREE
    AHO CONSTRUCTION I, INC.,                     )
    )         No. 35558-6-III
    Appellant,               )
    )
    v.                                     )
    )
    CITY OF MOXEE, a political subdivision        )         PUBLISHED OPINION
    of the State of Washington,                   )
    )
    Respondent.              )
    FEARING, J. —
    In order for an issue to be properly raised before an administrative
    agency, there must be more than simply a hint or a slight reference to the
    issue in the record. King County v. Washington State Boundary Review
    Board, 
    122 Wn.2d 648
    , 670, 
    860 P.2d 1024
     (1993) (emphasis added).
    Aho Construction I, Inc. (Aho) appeals from the trial court’s dismissal of its Land
    Use Petition Act, chapter 36.70C RCW (LUPA), action on the ground of failure to
    exhaust remedies before the Moxee City Council. We must decide how loud, listing,
    learned, legally lucid, and longwinded a party’s presentation of an issue or legal
    argument must be before an administrative agency in order to exhaust remedies. We hold
    that Aho sufficiently exhausted its remedies. We reverse the dismissal of Aho’s LUPA
    No. 35558-6-III
    Aho Construction v. City of Moxee
    action.
    FACTS
    Aho Construction submitted applications to the city of Moxee to rezone and
    subdivide a twenty-two-acre tract of property that Aho purchased on contract. Aho
    submitted a rezone application to Moxee because the development, to be named Rose’s
    Place, contemplated ninety-one residences inside the city, which number exceeded the
    density allowed by the property’s R-1 single-family zone. Aho sought rezoning to an R-2
    single family zone. Aho also submitted to Moxee a preliminary plat for approval.
    Pursuant to State Environmental Policy Act of 1971, chapter 43.21C RCW (SEPA)
    requirements, Aho additionally filed an environmental checklist with the city.
    The Rose’s Place subdivision application plat map did not extend an existing city
    street, Chelan Avenue, through the subdivision. The proposed plat instead depicted
    Chelan Avenue terminating one-half block inside the subdivision and near the westerly
    border of the subdivision and recommencing in an easterly direction one-half block
    before Chelan Avenue would exit the subdivision.
    The city of Moxee provided public notice of Aho Construction’s applications for a
    rezone and subdivision approval. Numerous city officials and other government entities
    responded to the applications and environmental checklist. Moxee Police Chief Mike
    Kisner responded with concerns about the break in Chelan Avenue’s continuity. Kisner
    wrote to Moxee’s SEPA official:
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    No. 35558-6-III
    Aho Construction v. City of Moxee
    It appears from a logical stand-point that it [Chelan Avenue] should
    be extended through the plat from Faucher Road [west side of the
    subdivision] to the proposed stub-out on the east side of the plat.
    ....
    Chelan Avenue is an important local access connection through this
    side of the city. It starts at Centennial Street and connects to the west side
    of Faucher Road. This proposal makes the obvious connection on the east
    side of Faucher Road but does provide a continuous connection to the east.
    This discontinuance of street connection will reduce our response time to
    this area and therefore does not promote the public health, safety and
    welfare of the citizens of Moxee.
    Clerk’s Papers (CP) at 126. Police Chief Kisner requested that Moxee condition any
    approval of the subdivision plat on the extension of Chelan Avenue through the entire
    subdivision.
    Trevor Lenseigne, operations chief of East Valley Fire Department, the city of
    Moxee’s fire service organization, also expressed concern over Chelan Avenue’s
    discontinuance, and he requested the roadway be extended. Lenseigne wrote to Moxee’s
    SEPA official:
    In the proposed plat, it would be necessary for our large vehicles to
    make additional turning movements or drive around entire blocks to access
    certain locations if Chelan Avenue is not extended easterly. This could
    delay our response times in an emergency situation.
    We believe it would be in the public’s best interest if Chelan Avenue
    were extended through the plat, as it would provide us with better access to
    the proposed neighborhood and to future neighborhoods to the east.
    CP at 129.
    Benjamin Annen, Moxee’s consulting engineer, reviewed the Rose’s Place SEPA
    environmental checklist. Annen wrote to the city SEPA official:
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    Aho Construction v. City of Moxee
    The preliminary plat layout should be revised to extend Chelan
    Avenue from Faucher Road, continuous through the length of the
    development to the east property line, with provisions for extending in the
    future. Continuity within the roadway network is important as it provides
    consistent roadway connectivity, a reliable block system for various modes
    of transportation, and improved access for emergency vehicles. Consistent
    with previous plats and continuity, typical block lengths should range from
    250 feet to 700 feet in length. Because the distance between Charron Road
    and Moxee Avenue is approximately 1,300 feet, it is our recommendation
    to extend Chelan Avenue through the development as an additional
    east/west roadway, greatly improving continuity.
    CP at 123.
    The city of Moxee conducted a review of the preliminary plat application under
    SEPA and issued a preliminary mitigated determination of nonsignificance (MDNS).
    The preliminary MDNS required that Aho implement various mitigation measures,
    including the extension of Chelan Avenue from its intersection with Faucher Road on the
    west side of the subdivision across the entirety of Rose’s Place to its eastern boundary.
    Moxee issued the preliminary MDNS for purposes of additional comments from the
    public, government entities, and Aho.
    John Manix, Aho Construction’s engineer, penned a report to Mel Aho, owner of
    Aho, which report Aho forwarded to the city of Moxee with a request for relief from the
    mitigation requirement of extending Chelan Avenue. Aho’s engineer disputed the need
    to extend Chelan Avenue, while writing that Rose’s Place would add minimal traffic to
    the vicinity. Manix also iterated that emergency vehicles would wish to enter Rose’s
    Place subdivision from arterials, such as Moxee Avenue, other than Chelan Avenue.
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    No. 35558-6-III
    Aho Construction v. City of Moxee
    Manix posited that use of Chelan Avenue would increase emergency vehicles’ response
    time.
    Steven Madsen, Aho Construction’s general counsel, also wrote Moxee officials
    and complained about the lack of justification for extending Chelan Avenue across the
    plat. We repeat below a portion of the lengthy argument presented by Madsen in the
    letter. The file given to each Moxee city council member, when the city council later
    reviewed Aho’s challenge to the Chelan Avenue extension requirement, included the
    letter:
    Chelan Avenue Extension:
    Washington law is very clear that mitigation requirements imposed
    on land development by municipal jurisdictions must be roughly
    proportional to the environmental Impacts created by the development:
    Where government issues a land use permit on condition that
    the applicant dedicate land to public use, the government must show
    an ‘essential nexus’ between a ‘legitimate state interest,’ and the
    condition imposed. Nollan v. California Coastal Comm’n, 
    483 U.S. 825
    , 837, 107 S. Ct, 3141, 
    97 L. Ed. 2d 677
     (1987). Further, to
    satisfy the Fifth Amendment, the government must establish that its
    proposed condition is roughly proportional to the Impact the
    proposed development will have on the public problem. Dolan v.
    City of Tigard, 
    512 U.S. 374
    , 391, 114 S. Ct, 2309, 
    129 L. Ed. 2d 304
     (1994). And this requires ‘some sort of individualized
    determination that the required dedication is related both in nature
    and extent to the impact of the proposed development.’ Dolan, 
    512 U.S. at 391
    . We have identified four factors in these concepts: (1) a
    public problem; (2) a development that impacts the public problem;
    (3) governmental approval of the development based on a condition
    that tends to solve the problem; and (4) rough proportionality
    between the proposed solution and the development’s impact on the
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    No. 35558-6-III
    Aho Construction v. City of Moxee
    problem. Burton v. Clark County, 
    91 Wash. App. 505
    , 520-23, 
    958 P.2d 343
     (1998). Benchmark Land Company v. City of Battle
    Ground, 94 Wn. App, 537[,] 
    972 P.2d 944
     (1999).
    In this case, the mitigation measure completely fails the “Dolan
    test.” Primarily, there is no “public problem” which would require such
    an extraordinary mitigation measure. All arterial streets accessing the
    proposed development currently operate at a Level of Service (LOS) A.
    This is the highest level of service under currently accepted traffic
    management measurement systems. There is no evidence that the
    additional traffic created by the proposed development will reduce this LOS
    or otherwise exacerbate any existing traffic problem.
    Likewise, there is no evidence that fire and police services are
    inadequate to service the development. Nevertheless, the City’s “SEPA
    Responsible Official[,]” police and fire departments have all stated support
    for the mitigation measure. Nowhere is there any explanation for how the
    requirement of the extension of Chelan Avenue through the proposed
    development mitigates an existing problem despite an estimated additional
    cost of hundreds of thousands of dollars to Aho, increased street
    maintenance costs to the City, and the loss of property tax revenue for the
    eight houses sacrificed by the street dedication.
    ....
    The fire district letter claims that if Chelan Avenue is not extended,
    “[t]his could delay our response times in an emergency situation.” This is a
    bald assertion with no facts or evidence to support the kind of
    “Individualized determination” of the proportionality of the mitigation
    measure to the impact created. The fire district goes on to state, “We
    believe it would be in the public’s best interest if Chelan Avenue were
    extended through the plat, as it would provide us with better access to the
    proposed neighborhoods to the east.” Under Kramer v. Clark County, 
    135 Wn. App. 1005
     (2006), and Burton v. Clark County, 
    91 Wn. App. 505
    (1998), the City cannot impose road exactions based on theoretical future
    developments that are not part of any existing development plan. As the
    court said in Kramer,
    Burton made it clear that possible future development is not
    sufficient to show that an exacted road would alleviate a traffic
    problem. Burton, 91 Wn. App. at 528-29. In Burton, it was possible
    for the future road to connect to another public road, but there was
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    No. 35558-6-III
    Aho Construction v. City of Moxee
    no evidence in the record to indicate when it would do so. Burton,
    91 Wn. App. at 528. The court reasoned that in the absence of any
    evidence to indicate when such a road would be built, the exaction
    was not constitutional. Burton, 91 Wn. App. at 528-29. Applying
    this reasoning to the case before us, Kramer’s potential future
    development is not sufficient to require Commerce Park to build an
    access road for Kramer now.
    Unlimited v. Kitsap County, 
    50 Wn. App. 723
    , 727, 
    750 P.2d 651
    , review denied, 
    111 Wn.2d 1008
     (1988), controls this issue. In
    Unlimited v. Kitsap County conditioned a planned unit development
    on building a road to a landlocked commercial property. Unlimited,
    50 Wn. App, at 724. The court noted that there was no expectation
    that this landlocked parcel would be developed at the same time or
    “anytime soon.” Unlimited, 
    50 Wn. App. at 727
    . Even if it were,
    the court reasoned, the public has no interest in developing a private
    parcel or property and that it would be manifestly unreasonable for
    the county to exact access from a private developer. Unlimited, 
    50 Wn. App. at 727
    . Similarly, requiring Commerce Park to build
    Kramer an access road that would serve only his parcel is manifestly
    unreasonable.
    CP at 159-61 (emphasis added) (lack of case name italics in original).
    When the city of Moxee issued its final MDNS, Moxee retained the condition to
    the Rose’s Place subdivision plat approval that Aho extend Chelan Avenue across the
    entire plat. The city calculated a need for extending Chelan Avenue through the
    subdivision to mitigate the impact caused by dense housing in the subdivision. The city
    deemed the street extension necessary to afford ingress and egress of residential traffic
    and emergency vehicles.
    Under the city of Moxee’s municipal code, Aho Construction appealed the city’s
    final SEPA MDNS to a city hearing examiner. Also, under the city code, Aho appealed
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    No. 35558-6-III
    Aho Construction v. City of Moxee
    the conditioning of the grant of the rezone and the subdivision plat approval on extending
    Chelan Avenue to the hearing examiner.
    Section 16.15.160 of the Moxee Municipal Code (MMC) establishes procedures
    for integration of SEPA review into the city’s project permit review process. The code
    section includes provisions for appeals of SEPA determinations at MMC 16.15.160(4).
    In turn, MMC 16.15.160(4)(b) declares:
    All appeals shall be heard by the hearing examiner in an open record
    public hearing. The hearing examiner’s decision on the SEPA appeal may
    be appealed to the city council at a closed record appeal hearing.
    A hearing examiner conducts a consolidated open record hearing on the underlying
    project applications and the SEPA appeal.
    Aho attached, to its notices of appeal of the city of Moxee decisions, engineer
    John Manix’s report and Steven Madsen’s argumentative letter. The city of Moxee
    consolidated Aho’s appeal of the MDNS with the subdivision and rezone approvals’
    condition on extending Chelan Avenue.
    The city of Moxee hearing examiner Patrick Spurgin conducted a consolidated
    open record hearing on the preliminary plat and rezone applications and the SEPA
    appeal. During the hearing, both city staff and Aho representatives, including attorney
    Steven Madsen, noted that the principal dispute for both the SEPA appeal and
    preliminary plat application concerned the propriety of conditioning approval of the
    project on the extension of Chelan Avenue.
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    No. 35558-6-III
    Aho Construction v. City of Moxee
    The hearing examiner issued a written decision. The decision listed Steven
    Madsen’s letter as an exhibit before him. According to the hearing examiner, the letter:
    challenged the mitigation measure requiring improvements to the
    Faucher Road/Charron Road intersection to the extent it depended on third
    party approval as a condition of a project permit. He further contested the
    Chelan Avenue extension mitigation condition, asserting legal arguments
    regarding the constitutionality of the extension as an exaction that did not
    have a nexus to any public problem caused from impacts specific to the
    proposed subdivision. He also challenged any reliance on speculative
    future development on neighboring properties as the basis for imposing the
    mitigation condition requiring preservation of the prevailing grid system of
    local access streets, particularly in absence of a street plan, [HE p.100-102]
    CP at 204-05. The hearing examiner later, in his decision, noted that Aho repeated the
    arguments in the attorney’s letter during the open record hearing.
    In his decision, hearing examiner Patrick Spurgin reversed the city’s MDNS
    condition of extension of Chelan Avenue in that the avenue lacked an environmental
    impact. This ruling gained Aho Construction only a pyrrhic victory because the hearing
    examiner upheld the condition on other grounds when reviewing the rezone application
    approval and the preliminary plat application approval. The examiner noted that Rose’s
    Place subdivision would exacerbate the public problems referenced in the city’s MDNS.
    The hearing examiner ultimately determined that Chelan Avenue must be extended
    easterly to create a continuous corridor throughout the plat, because the city may base a
    rezone on reasonable mitigation conditions. Also, the city may base a preliminary plat
    approval on reasonable conditions as long as the condition contains proportionality to its
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    No. 35558-6-III
    Aho Construction v. City of Moxee
    need. In so ruling, the examiner concluded that he lacked authority to declare any city
    action to be unconstitutional.
    The Moxee Municipal Code distinguishes between the hearing examiner’s
    examination of the city’s SEPA MDNS and the hearing examiner’s review of the city’s
    conditional approval of a rezone application and preliminary plat application. The city
    code deems the examination of the SEPA MDNS as an appeal, and the hearing
    examiner’s decision to be final unless appealed further. MMC 16.15.060(1),
    16.15.160(4) and 16.15.190(2)(f). The code deems the consideration of the preliminary
    plat approval and rezone approval as a review, after which the hearing examiner presents
    a recommendation to the city council. MMC 16.15.190(2)(f). The city council
    automatically reviews the recommendation and issues a final decision after a closed
    record hearing. MMC 16.60.190 declares:
    The city council upon receipt of a recommendation on any
    preliminary plat shall at its next public meeting set the date for a closed
    record hearing to consider the matter in accordance with the procedures and
    standards of Chapter 16 MMC for conducting a closed record hearing.
    MMC 16.15.230 defines a “closed record appeal:”
    (1) A closed record appeal shall be the administrative appeal on the
    record to the city council following a previous open record hearing on the
    project permit application before the hearing examiner.
    (2) A closed record decision shall be a closed record public meeting
    held by city council prior to the issuance of a final decision, but follows a
    previous open record hearing on the project permit application before the
    hearing examiner. With the exception of variances, appeals of Level 1 or 2
    decisions, and appeals of SEPA decisions, the final decision on the project
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    No. 35558-6-III
    Aho Construction v. City of Moxee
    permit will be rendered by the city council.
    (3) Closed record appeal/decision hearing shall be on the record, and
    no new evidence may be presented.
    Aho Construction did not appeal the hearing examiner’s SEPA appeal decision,
    presumably because Aho prevailed. The city of Moxee did not appeal the SEPA
    determination either. Pursuant to MCC, the Moxee City Council then automatically
    conducted a closed record hearing, during one of its regular city council meetings, to
    consider the hearing examiner’s recommendations with regard to the conditions imposed
    on the rezone application and the preliminary plat application. Steven Madsen, Aho’s
    general counsel, appeared at the city council hearing on behalf of Aho.
    During the course of the Moxee City Council meeting, Moxee Mayor Gregory La
    Bree announced the hearing as follows:
    Item No. 2 on the agenda is a closed public hearing to consider the
    recommendation issued by the hearing examiner for the 91 Lot Long Plat
    known as the Plat of Rose’s Place, File No. SUBD 2016-01.
    At this time I’ll open the closed-record hearing to consider the
    recommendations of the hearing examiner for a 91 Lot Long Plat known as
    the Plat of Rose’s Place, File No. SUBD 2016-01. No new testimony will
    be heard.
    First we will hear the City staff, then we’ll hear the applicant, and
    then I will give the City staff a chance to respond to the applicant's
    comments.
    CP at 269. Thereafter, Bill Hordan, Moxee’s planning consultant, spoke at length as to
    the history behind the dispute between Aho and the city of Moxee and to the justification
    of the condition to extend Chelan Avenue. Hordan noted:
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    No. 35558-6-III
    Aho Construction v. City of Moxee
    So the second comment period produced a letter from the
    proponent’s [Aho’s] engineer with reasons why he didn’t believe Chelan
    Avenue should be constructed to and through the plat.
    And speaking of generalities, before they’ll have an opportunity to
    talk, they mainly indicated that—the engineering—that it did not affect the
    level of service of these three agencies in the area.
    The second comment period also produced a letter from the
    proponent’s attorney. And he’s indicated that the proponents felt the
    requested mitigation was a taking of the properties and not warranted. The
    proponent’s attorney also stated in his letter that the proponent has concerns
    about the development of the intersection of Charron Road and Faucher
    Road and how that was to be accomplished.
    CP at 270. Hordan added that Aho appealed to the hearing examiner and the notice of
    appeal attached the engineer’s and attorney’s letters.
    After Bill Hordan presented city staff’s position in favor of adopting the hearing
    examiner’s recommendation, Moxee Mayor Gregory La Bree asked if anyone had
    comments. Aho Construction attorney Steven Madsen responded:
    MR. MADSEN: My name is Steve Madsen. I am general counsel
    for AHO Construction, the so-called attorney that’s referenced in the
    documents. I understand Mr. Noe [Moxee counsel] is on the phone?
    MR. NOE: Yes.
    MR. MADSEN: I guess my—I discovered a query, my
    understanding is—I just drove here from Vancouver, Washington, literally
    into the parking lot as the meeting started so I apologize if I’m a little short-
    winded.
    My understanding is that this is closed-record hearing, how is it that
    we’re having testimony here tonight?
    MR. NOE: Who are you addressing your question to?
    MR. MADSEN: Mr. Noe, yes, I’m sorry, you, Mr. Noe.
    MR. NOE: There wasn’t any testimony. That was just a presentation
    to city council of the project itself. Everything that was talked about was
    previously talked about with the hearing examiner.
    MR. MADSEN: Well, I guess I would object to substantial
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    No. 35558-6-III
    Aho Construction v. City of Moxee
    characterizations of the hearing examiner’s opinion. They’re in writing and
    they speak for themselves anyway, I’ll continue with my comments, then.
    First of all, generally the reiteration of the facts here are correct,
    couple of exceptions I take. One is the decision of the SEPA was final,
    that’s not a recommendation. This body has no jurisdiction over that
    decision. The City had the ability to appeal, the appeal period has passed,
    that was done.
    I would object to the characterization that the hearing examiner ruled
    that this is not a taking. To the contrary, the hearings examiner was very
    clear that in oral comments stating his opinion, he did not have jurisdiction
    to rule on the face of this claim, that—and as I interpret the finding No. 5,
    that merely found it was within the City’s general plan to make that
    requirement of the throughway of Chelan Avenue, that doesn’t mean the
    City doesn’t have to pay for it. In this case, the bill’s over $500,000 and we
    have that uncontroverted here in the record and that’s what the bill is going
    to be in a land use petition act claim.
    So it’s our position that, guess what, the City could require it under
    its own power of eminent domain, it’s going to have to do that to take
    Chelan Avenue from this subdivision, that’s really our only comment here.
    We believe that the hearing examiner was not ambiguous in his
    findings, he simply didn’t rule on the issue of whether or not this
    constituted an unconstitutional taking, that is in conversion of private
    properties for public use without just compensation, and that remains our
    position here tonight. Thank you.
    CP at 272.
    The Moxee City Council unanimously voted to approve the hearing examiner’s
    recommendation to require the extension of Chelan Avenue as part of the rezone
    application approval and the preliminary plat application approval.
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    Aho Construction v. City of Moxee
    PROCEDURE
    Aho Construction filed suit against the city of Moxee in superior court. The suit
    combined an RCW 36.70C LUPA claim with a complaint for damages under RCW 64.40
    and a suit for damages for an unlawful taking under Washington State Constitution article
    I, section XVI. As part of its LUPA claim, Aho contended that the city of Moxee
    adopted a land use decision outside its authority by imposing a condition of approval
    requiring Aho to extend Chelan Avenue. Moxee also violated its city code by demanding
    the extension. According to Aho, Moxee breached the takings clause of the state
    constitution and the language of RCW 82.02.020 by demanding the extension without
    demonstrating that the exaction was reasonably necessary as a direct result of the
    proposed development or plat or demonstrating that the exaction was roughly
    proportional to the alleged impacts of the proposed development. Finally, Aho alleged in
    its LUPA petition that Moxee’s land use decision breached United States Supreme Court
    decisions demanding an essential nexus between a legitimate state interest and the
    exaction imposed.
    The city of Moxee filed a motion to dismiss and argued that Aho Construction
    failed to exhaust its administrative remedies in failing to raise its arguments before the
    Moxee City Council. In response, Aho contended that it raised its issues already during
    the open record hearing before the hearing examiner and was not required to reiterate
    those contentions during a closed record review with the Moxee City Council. The
    14
    No. 35558-6-III
    Aho Construction v. City of Moxee
    superior court granted the motion to dismiss. The court dismissed all three causes of
    action.
    LAW AND ANALYSIS
    We first identify the substantive causes of action pending before us and the
    questions for us to decide. Aho Construction assigns error to the trial court’s dismissal of
    its LUPA petition for failure to exhaust its administrative remedies. Aho assigns no error
    to the dismissal of its claim under RCW 64.40 or its state inverse condemnation cause of
    action. We note that a property owner may combine a claim for compensation with a
    LUPA petition and that the procedures and standards applied to a LUPA petition do not
    extend to the claim for damages. RCW 36.70C.030. RCW 64.40.020(1) attaches
    exhaustion of remedies requirements to an RCW 64.40 claim, but Aho’s inverse
    condemnation action may not have faced any exhaustion requirement. Nevertheless, we
    deem unchallenged the dismissal of the RCW 64.40 and inverse condemnation causes of
    action, and we only address whether Aho failed to exhaust its remedies under LUPA.
    Our determination to limit our review to Aho Construction’s LUPA claim does not
    negate Aho’s ability to assert, within the context of its LUPA suit, that the city of
    Moxee’s conditional approval of the rezone and preliminary plat constitutes an
    unconstitutional taking. Under RCW 36.70C.130(1), the superior court grants relief in a
    LUPA action if:
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    No. 35558-6-III
    Aho Construction v. City of Moxee
    (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.
    (Emphasis added.)
    LUPA, chapter 36.70C RCW, governs judicial review of land use decisions.
    RCW 36.70C.030. RCW 36.70C.060 addresses standing under LUPA and incorporates
    an exhaustion of remedies requirement for standing. The statute declares:
    Standing to bring a land use petition under this chapter is limited to
    the following persons:
    ....
    (d) The petitioner has exhausted his or her administrative remedies
    to the extent required by law.
    The statute states nothing of the degree of participation or the specificity with which
    issues must be raised before an administrative agency or municipality to seek judicial
    review. Citizens for Mount Vernon v. City of Mount Vernon, 
    133 Wn.2d 861
    , 868, 
    947 P.2d 1208
     (1997). The superior court lacks jurisdiction over a LUPA petition if the
    petitioner failed to exhaust remedies. Knight v. City of Yelm, 
    173 Wn.2d 325
    , 336-37,
    
    267 P.3d 973
     (2011).
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    No. 35558-6-III
    Aho Construction v. City of Moxee
    The exhaustion of remedies prerequisite furthers LUPA’s policy of efficient and
    timely review of land use actions. Durland v. San Juan County, 
    182 Wn.2d 55
    , 68, 
    340 P.3d 191
     (2014). In all settings, the doctrine of exhaustion: (1) insures against premature
    interruption of the administrative process, (2) allows the agency to develop the necessary
    factual background on which to base a decision, (3) allows exercise of agency expertise
    in its area, (4) provides a more efficient process, and (5) protects the administrative
    agency’s autonomy by allowing it to correct its own errors and insuring that individuals
    do not ignore its procedures by resorting to the courts. South Hollywood Hills Citizens
    Association for the Preservation of Neighborhood Safety and the Environment v. King
    County, 
    101 Wn.2d 68
    , 73-74, 
    677 P.2d 114
     (1984). Reversal of an agency on grounds
    not raised before the agency could create a demoralizing effect on administrative
    conduct. Knowing that even decisions made with the utmost care might be reversed on
    heretofore undisclosed grounds, administrative agencies could become careless in their
    decision-making. King County v. Washington State Boundary Review Board, 
    122 Wn.2d at 669
     (1993).
    RCW 34.05.554(1), a provision of the Washington Administrative Procedure Act,
    chapter 34.05 RCW, requires exhaustion of remedies before challenging agency action in
    superior court. Washington decisions apply the same exhaustion principles regardless of
    whether the exhaustion requirement arises from the Administrative Procedure Act,
    LUPA, or some other source.
    17
    No. 35558-6-III
    Aho Construction v. City of Moxee
    In order for a litigant to establish exhaustion of administrative remedies, the
    litigant must first raise the appropriate issues before the agency. King County v.
    Washington State Boundary Review Board, 
    122 Wn.2d at 668
     (1993). We must decide if
    Aho Construction apprised the Moxee City Council of the issues Aho seeks to litigate in
    its LUPA action. In its LUPA claim, Aho contends Moxee adopted erroneous
    interpretations of the law and violated Aho’s constitutional right against the taking of its
    property without just compensation. Aho argues that the requirement of extending
    Chelan Avenue across Rose’s Place constitutes an unreasonable exaction that lacks
    proportionality to the impact of proposed Rose’s Place and that fails an essential nexus
    between a legitimate state interest and the exaction imposed.
    We next juxtapose competing Washington Supreme Court decisions advanced by
    the city of Moxee and Aho Construction. The city forwards King County v. Washington
    State Boundary Review Board, 
    122 Wn.2d 648
     (1993), to demonstrate Aho’s efforts were
    inadequate. Aho cites Citizens for Mount Vernon v. City of Mount Vernon 
    133 Wn.2d 861
     (1997), for its contention that it adequately exhausted remedies.
    In Washington State Boundary Review Board, the Supreme Court addressed the
    King County Boundary Review Board’s (Board) approval of two proposed annexations
    of property into the city of Black Diamond. King County, an annexation opponent,
    contended, before the superior court, that the Board’s approval of the annexation violated
    King County Ordinance 9849. The superior court agreed. Nevertheless, King County
    18
    No. 35558-6-III
    Aho Construction v. City of Moxee
    never cited the ordinance to the Boundary Review Board or suggested to the Board that
    approval of the annexation would violate the ordinance. Extensive testimony of county
    officials and numerous letters from the county, before the Board, omitted any reference to
    the county ordinance. Therefore, the Supreme Court refused to entertain, on appeal, the
    county’s use of the ordinance. Oddly, the city of Black Diamond included a copy of the
    ordinance along with a memorandum arguing against preclusive effect of the ordinance in
    its submittal to the Boundary Review Board. The Supreme Court still held that King
    County’s efforts failed to constitute “more than simply a hint or slight reference to the
    issue in the record.” King County v. Washington State Boundary Review Board, 
    122 Wn.2d at 670
    .
    In Citizens for Mount Vernon v. City of Mount Vernon, 
    133 Wn.2d 861
     (1997), the
    Supreme Court considered the exhaustion doctrine in the context of a LUPA petition that
    followed public hearings before a city council. Citizens successfully challenged, before
    the city council, the city staff’s approval of a commercial planned unit development. On
    appeal to the Supreme Court, the development’s proponents argued that the citizens
    lacked standing to challenge the city’s approval because the citizens failed to exhaust
    administrative remedies before the city council. The Supreme Court disagreed. Before
    the superior court, the citizens challenged the compatibility of the planned unit
    development with the underlying zoning. The citizens had not employed the term
    “compatibility” before the city council. Still the citizens had challenged the development
    19
    No. 35558-6-III
    Aho Construction v. City of Moxee
    as inconsistent with the city’s comprehensive plan. The Supreme Court ruled that LUPA
    petitioners did not need to employ precise or technical legal terms in their arguments in
    order to exhaust remedies.
    The city of Moxee emphasizes differentiating facts in Citizens for Mount Vernon.
    The Supreme Court, in Citizens for Mount Vernon, highlighted the nature of the
    administrative proceeding as informal and involving members of the public,
    unrepresented by legal counsel, voicing their concern. Moxee observes that lawyers
    represented both the city and Aho in a formal adversarial procedure before the city
    hearing examiner and the city council.
    We note that the teaching of Citizens for Mount Vernon conflicts with the
    principle that holds pro se litigants, although lacking in technical expertise, to the
    standards of a lawyer. State v. Bebb, 
    108 Wn.2d 515
    , 524, 
    740 P.2d 829
     (1987);
    Edwards v. Le Duc, 
    157 Wn. App. 455
    , 460, 
    238 P.3d 1187
     (2010); State Farm Mutual
    Automobile Insurance Co. v. Avery, 
    114 Wn. App. 299
    , 310, 
    57 P.3d 300
     (2002); State v.
    Vermillion, 
    112 Wn. App. 844
    , 857-58, 
    51 P.3d 188
     (2002). Regardless, we conclude
    that Aho complied with a standard for exhaustion of remedies even consistent with a
    higher standard that might be applied to represented parties.
    We return to King County v. Washington State Boundary Review Board, 
    122 Wn.2d 648
     (1993). One might conclude that the decision stands more for the proposition
    that one does not exhaust remedies when only the opponent notifies the administrative
    20
    No. 35558-6-III
    Aho Construction v. City of Moxee
    agency of a pertinent issue or applicable law rather than standing for the proposition that,
    to exhaust remedies, one must present “more than simply a hint or slight reference to the
    issue in the record.” King County v. Washington State Boundary Review Board, 
    122 Wn.2d at 670
    . This court recently, in Office of Attorney General v. Washington Utilities
    and Transportation Commission, 4 Wn. App. 2d 657, 
    423 P.3d 861
     (2018), abandoned
    the rule that another party’s raising of an issue does not fulfill the requirement of
    exhaustion of remedies. We instead adopted the federal rule that excuses exhaustion
    requirements when the administrative agency has the opportunity to consider the identical
    issue as a result of the posturing of another party. Natural Resources Defense Council,
    Inc. v. United States Environmental Protection Agency, 
    263 U.S. App. D.C. 166
    , 
    824 F.2d 1146
    , 1151 (1987); Local 512, Warehouse and Office Workers’ Union v. National
    Labor Relations Board, 
    795 F.2d 705
    , 714 (9th Cir. 1986), abrogated on other grounds
    by Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 
    535 U.S. 137
    ,
    
    122 S. Ct. 1275
    , 
    152 L. Ed. 2d 271
     (2002); Buckeye Cablevision, Inc. v. United States,
    
    438 F.2d 948
    , 951 (6th Cir. 1971).
    We now review other Washington decisions on exhaustion of remedies to help
    address the parameters we employ in determining whether Aho Construction exhausted
    remedies. In Wells v. Western Washington Growth Management Hearings Board, 
    100 Wn. App. 657
    , 683, 
    997 P.2d 405
     (2000), a party challenged the growth management
    hearings board’s failure to suspend single-family residences in a watershed. This court
    21
    No. 35558-6-III
    Aho Construction v. City of Moxee
    refused to entertain the challenge because the party failed to sufficiently give notice to the
    board of its contention. This court wrote:
    In her opening brief to the Board, Wells included a paragraph that
    she alleges set forth her argument that the RCW 36.70A.302(3)(b)(i)
    exemption was inappropriate for Lake Whatcom:
    The lake’s public health and safety role, plus the above
    interpretation of the SMA’s policies (ergo of GMA) makes the
    exemption provided by RCW 36.70A.302[3](b)(i) inappropriate for
    Lake Whatcom. I request that the Board specifically deny the County
    the use of this exemption in the Lake Whatcom watershed.
    This paragraph, which incorrectly cites the relevant portion of the
    statute, is embedded in a section of the brief entitled “Lake Whatcom
    Watershed.” The brief then refers to various water quality regulations and
    statutes, and reported water quality problems in the Lake Whatcom
    watershed. The superior court rejected Wells’ argument that this paragraph
    adequately raised the issue on appeal.
    We affirm the Skagit County Superior Court order dismissing the
    case. The paragraph cited above is insufficient to show that Wells raised
    the issue of single-family residence permits before the Board. It is merely
    “a hint or a slight reference” to Wells’ argument. Not only did she
    incorrectly cite the statute she intended to refer to, but she never mentioned
    permits for construction of single-family residences. In addition, the
    quoted paragraph, while in bold print, is buried in a lengthy, single-spaced
    brief and is not set out as a separate heading or issue.
    Wells v. Western Washington Growth Management Hearings Board, 100 Wn. App. at
    683-84 (footnote omitted).
    In Kitsap Alliance of Property Owners v. Central Puget Sound Growth
    Management Hearings Board, 
    160 Wn. App. 250
    , 272, 
    255 P.3d 696
     (2011), this court
    refused to address the property owners’ claim that the board’s decision violated its rights
    under RCW 82.02.020. The property owners, in its prehearing brief, mentioned that due
    22
    No. 35558-6-III
    Aho Construction v. City of Moxee
    process principles were codified in RCW 80.02.020, but did nothing further to discuss the
    statute’s application to the case. The court, nonetheless, agreed to hear the property
    owners’ due process challenge to a critical areas regulation because the board lacked
    jurisdiction to resolve constitutional challenges.
    Washington courts’ most recent decision on exhaustion of remedies comes from
    this court in Office of Attorney General v. Washington Utilities and Transportation
    Commission, 4 Wn. App. 2d 657 (2018). In an investor owned utility ratemaking case,
    the Attorney General’s Office argued before the superior court that the Utilities and
    Transportation Commission improperly used an attrition adjustment when setting
    Avista’s electricity rates. The Commission responded that the Attorney General’s office
    waived this argument because it failed to raise the contention before the Commission.
    According to this reviewing court, the Attorney General’s office presented its argument
    in a:
    single-sentence conclusory paragraph and its brief did not discuss
    the issue further. . . . [The Attorney General’s Office] did not cite any law,
    argue that this made the adjustment legal, or explain the significance of the
    “used and useful” terminology. [The Attorney General’s Office’s]
    treatment of the issue before the [Washington Utilities and Transportation
    Commission] was one sentence in a fifty-nine-page brief, in an
    administrative record spanning thousands of pages.
    Office of Attorney General v. Washington Utilities and Transportation Commission, 4
    Wn. App. 2d at 678.
    23
    No. 35558-6-III
    Aho Construction v. City of Moxee
    This court, in Office of Attorney General, based its decision on the Administrative
    Procedure Act’s exhaustion statute, RCW 34.05.554(1), rather than the LUPA exhaustion
    requirement. Nevertheless, as already noted, the Washington Supreme Court applies the
    same standard under each act. This court characterized the Attorney General’s office
    treatment of the attrition adjustment issued before the Utilities and Transportation
    Commission as “exactly the type of ‘hint’ or ‘slight reference’ to the issue that is
    insufficient to preserve it on appeal.” Office of Attorney General v. Washington Utilities
    and Transportation Commission, 4 Wn. App. 2d at 678.
    If the Attorney General’s office had been the only one arguing an improper
    attrition adjustment, the Office of Attorney General court would have refused to entertain
    the argument. Nevertheless, another party had argued in its posthearing brief before the
    Utilities and Transportation Commission that Avista’s proposed attrition adjustment did
    not satisfy law. This court did not depict the extent to which the other party presented its
    argument before the agency, other than quoting portions of two sentences from the
    posthearing brief.
    The enduring principle arising from King County v. Washington State Boundary
    Review Board reads:
    In order for an issue to be properly raised before an administrative
    agency, there must be more than simply a hint or a slight reference to the
    issue in the record.
    
    122 Wn.2d at 670
    . Even though the principle might be dicta, we choose to follow this
    24
    No. 35558-6-III
    Aho Construction v. City of Moxee
    principle because subsequent Washington courts consistently recite the principle. Office
    of Attorney General v. Washington Utilities and Transportation Commission, 4 Wn. App.
    2d. at 678 (2018); Goding v. King County Civil Service Commission, 
    192 Wn. App. 270
    ,
    297, 
    366 P.3d 1
     (2015); ABC Holdings, Inc. v. Kittitas County, 
    187 Wn. App. 275
    , 282-
    83, 
    348 P.3d 1222
     (2015); Kitsap Alliance of Property Owners v. Central Puget Sound
    Growth Management Hearings Board, 160 Wn. App. at 272 (2011); Wells v. Western
    Washington Growth Management Hearings Board, 100 Wn. App. at 683 (2000); Mader
    v. Health Care Authority, 
    109 Wn. App. 904
    , 922 n.37, 
    37 P.3d 1244
     (2002) rev’d in
    part, 
    149 Wn.2d 458
    , 
    70 P.3d 921
     (2003). Office of Attorney General and Wells
    illuminate the “more than a hint” test by providing examples of insufficiency.
    We conclude that the Washington test for exhaustion of remedies imposes a
    minimal burden on the challenger of the administrative agency action. Law is not a
    mathematical exercise. Thus, we cannot measure what constitutes more than a hint or
    greater than a slight reference. Nevertheless, we assemble, from Washington cases,
    factors germane to determining sufficiency of exhaustion, which include: the number
    of sentences devoted to an issue in any written brief given to the administrative
    agency; the amount of language devoted to the argument compared to the amount of
    language devoted to other arguments; the clarity of the presentation before the
    administrative agency; citations to statutes and case law and the accuracy of the
    25
    No. 35558-6-III
    Aho Construction v. City of Moxee
    citations; if the party asserts numerous issues in a brief, whether the issue on appeal
    was separated in the brief or introduced with a heading; and whether the challenger’s
    presentation to the administrative agency applied facts to the law. We expect further
    cases will add to these factors.
    We glean from the record before the Moxee City Council that Aho Construction
    repeatedly asserted to the city that the city’s demand for an extension of Chelan Avenue
    lacked proportionality and a nexus to a public interest and constituted a taking of property
    without just compensation. John Manix, Aho’s engineer, penned a report that disputed
    the need to extend Chelan Avenue because the subdivision would add minimal traffic to
    the vicinity and increase emergency vehicle response time. Steven Madsen, Aho’s
    general counsel, wrote Moxee officials and complained about the lack of justification for
    extending Chelan Avenue across the plat. The letter argued that the condition of
    extending Chelan Avenue lacked a legitimate state interest and constituted a taking of
    property. The letter accurately cited United States Supreme Court and Washington
    Supreme Court decisions supporting Aho’s legal position and applied the law to the facts.
    Madsen not only cited the law but expounded on the law. The letter focused on the
    taking of property without just compensation, without the letter wandering into other
    topics. Madsen did not bury Aho’s lack of a nexus, lack of proportionality, and taking
    arguments in lengthy briefs containing other arguments. Madsen wrote more than a
    sentence and more than a paragraph in favor of Aho’s contentions.
    26
    No. 35558-6-III
    Aho Construction v. City of Moxee
    During the hearing before the city of Moxee hearing examiner, both city staff and
    Aho representatives, including attorney Steven Madsen, noted that the principal dispute
    for both the SEPA appeal and preliminary plat application concerned the propriety of
    conditioning approval of the project on the extension of Chelan Avenue. The hearing
    examiner’s written decision listed Madsen’s letter as an exhibit before him. The decision
    noted that Madsen’s letter presented constitutional arguments because the extension
    condition provided no solution to any public problem. The hearing examiner later, in his
    decision, noted that Aho repeated the arguments from Madsen’s letter during the open
    record hearing.
    Presumably, the city of Moxee agrees that Aho took steps, before the hearing
    examiner, necessary to exhaust remedies and advance its position before the city council.
    Presumably, Moxee only contends Aho failed to exhaust administrative remedies before
    the city council. Nevertheless, exhaustion of remedies before the hearing examiner
    should extend to exhaustion of remedies before the city council since the city council
    merely reviewed the hearing examiner’s record and decision in a closed record meeting.
    The hearing examiner’s decision affirming the approval of the rezone and the
    preliminary plat conditioned on the extension of Chelan Avenue underwent automatic
    review by the Moxee City Council. The city council received the entire record from the
    hearing examiner, which record included the letter from Steven Madsen, the report
    prepared by John Manix, and the hearing examiner’s decision. All three documents
    27
    No. 35558-6-III
    Aho Construction v. City of Moxee
    mentioned Aho’s complaint about the extension of Chelan Avenue in part on taking
    grounds. During Moxee consultant Bill Hordan’s presentation before the city council,
    Hordan referenced the letters from Madsen and Manix.
    If city council members lacked notice of Aho’s claim of a taking, the council
    members failed to read the closed record before it and failed to listen to Steven Madsen.
    No city council member is on record stating that he or she did not comprehend Aho’s
    arguments because of an inchoate or unintelligible presentation. This court sometimes
    receives briefs with less definition and less explanation as to a party’s contentions.
    The city of Moxee faults Aho because Steven Madsen, during his short
    presentation to the Moxee City Council, failed to assert the underlying basis for the
    takings claim, that being a missing nexus between the public need and the extension of
    Chelan Avenue and the absence of proportionality between the cost of the extension and
    the public benefit. Aho thereby criticizes Madsen’s presentation to the city council as
    failing to provide an articulable reason to reverse the hearing examiner’s ruling. We
    recognize the stunted nature of Steven Madsen’s presentation to the Moxee City Council.
    Nevertheless, Moxee cites no law that an oral presentation must sufficiently identify the
    issues before the administrative agency when written pleadings or letters already identify
    the issues, particularly when the oral presentation occurs during a closed record review.
    When a party explains its position in writing, sometimes the best oral argument may be
    no oral argument. Nevertheless, when he spoke, Madsen emphasized Aho’s contention
    28
    No. 35558-6-III
    Aho Construction v. City of Moxee
    that the city requirement of Chelan Avenue constituted a taking. Madsen asserted that
    Aho’s position remained that the city engaged in “an unconstitutional taking that is in
    conversion of private properties for public use without just compensation.” CP at 272.
    The city of Moxee contends that Aho may not rely on papers and arguments
    presented to the hearing examiner and needed to repeat those arguments before the city
    council. Such an argument recycles the argument critical of Steven Madsen’s oral
    presentation. Moxee cites no law to support this additional position. The city council
    received the entire record before the hearing examiner and was tasked in a closed record
    hearing to either affirm or reverse the hearing examiner’s ruling. That mission should
    have included a thorough reading of the hearing examiner’s record. Perusal of the record
    would enlighten city council members of the issues presented by Aho that became issues
    before the superior court in the LUPA action. If the city council did not understand that it
    was reviewing Aho’s arguments of a missing nexus, a lack of proportionality, and a
    taking, one wonders what the city council believed itself to be reviewing. Notice to the
    city council of those issues by the hearing examiner’s record fulfills the purpose of the
    doctrine of exhaustion of remedies.
    The city of Moxee characterizes city council members as lay people, who lack
    expertise in land use law. This argument ignores the fact that city council members had
    available city staff and a consultant with expertise in land use, with the consultant
    outlining the issues before the city council. Moxee city council members also had legal
    29
    No. 35558-6-III
    Aho Construction v. City of Moxee
    counsel available and present by phone during the city council meeting. If council
    members lacked understanding, the city council could have postponed the meeting or
    recessed the meeting into a closed session to speak with legal counsel.
    The city of Moxee also faults Aho because Steven Madsen’s letter failed to cite
    RCW 82.02.020, a statute prohibiting a city from assessing payments for a property
    development not in proportion to public needs caused by the development. We note that
    none of the record before the Moxee City Council cites RCW 82.02.020. Based on
    Washington case law, we conclude that, if a party fails to cite a statute or ordinance
    before the administrative agency, the party may not rely on the statute or ordinance in the
    superior court suit challenging the agency action. Therefore, we rule, based on the
    exhaustion of remedies doctrine, that Aho may not rely on RCW 82.02.020 on remand as
    part of its LUPA petition claim. This ruling may assist Moxee none since Aho may still
    rely on the takings clause of the Washington Constitution and RCW 82.02.020 constitutes
    a statutory analog to the constitutional clause.
    The parties agree that Aho could not raise its constitutional arguments before the
    city of Moxee hearing examiner. We do not know if Aho could raise constitutional
    challenges before the Moxee City Council, but question Aho’s ability to do so when the
    city council merely reviewed the record before the hearing examiner. Assuming Aho
    could not raise its takings claim before the city council, an additional ground requires
    reversal on the basis of exhaustion of remedies at least as to the takings argument under
    30
    No. 35558-6-III
    Aho Construction v. City of Moxee
    the rubric ofLUPA. This court may review an issue not adequately raised before the
    administrative agency if the petitioner lacked an opportunity to raise the issue below.
    Kitsap Alliance of Property Owners v. Central Puget Sound Growth Management
    Hearings Board, 160 Wn. App. at 272 (2011 ).
    CONCLUSION
    Aho Construction delivered the Moxee City Council more than an intimation of
    the issue, more than an allusion to its argument, and more than a tipoff of a taking. We
    reverse the trial court's dismissal of Aho's LUPA petition and remand for proceedings
    consistent with this opinion.
    WE CONCUR:
    31