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

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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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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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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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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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 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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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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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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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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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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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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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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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
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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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(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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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.
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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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
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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
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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
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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
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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