Grandview North, Llc, Appellant/cross-respondent v. City Of Burlington, Respondent/cross-appellant ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
GRANDVIEW NORTH, LLC, a No. 69639-4-
Washington limited liability company,
DIVISION ONE
Appellant/
Cross Respondent,
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CITY OF BURLINGTON, a municipal UNPUBLISHED rn
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corporation, o
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FILED: February 18,2014 co
Respondent/ 35" wmLJ
Cross Appellant.
2:<:
Cox, J. — Grandview North LLC appeals the superior court's order
affirming the City of Burlington's decision to deny Grandview's land use
application. Grandview contends that the denial was not supported by
substantial evidence, was an erroneous interpretation of the law, was an
erroneous application of the law to the facts, and violated its constitutional right to
equal protection. The City cross-appeals the superior court's order denying its
motion to dismiss.
Because Grandview fails in its burden to show it is entitled to relief under
LUPA, we affirm. Since it is unnecessary to reach the City's arguments, we do
not.
In February 2007, Grandview submitted a proposal to develop a site
located on Burlington Boulevard near the Costco Drive intersection. Grandview
sought to build an oil change facility called "Oil Can Henry's."
No. 69639-4-1/2
Gibson Traffic Consultants prepared two traffic impact analyses for
Grandview. The City retained Garry Struthers Associates ("GSA") to conduct
peer reviews of these reports. GSA identified errors in Gibson's analysis and
problems with Grandview's proposal. It recommended that the City deny the
proposal.
Upon receiving the permit application, the City conducted an
environmental review. The City determined that the project may have a
significant environmental impact. It issued a "Determination of Significance and
Request for Comments on the Scope of an Environmental Impact Statement."
In July 2008, Grandview brought a LUPA petition and complaint for
damages challenging the issuance of the determination of significance. The City
argued that the petition was premature because it had to be consolidated with
the land use decision, which had not yet been made. The superior court
dismissed the petition in March 2009.
In April 2009, the City issued a "Draft Environmental Impact Statement." It
identified adverse impacts on traffic operations and safety issues. It also noted
that the problem at this location is "seriously exacerbated" by the fact that there is
an existing business that is "directly affected" by Grandview's proposal.
Specifically, it noted that Grandview proposed to use a corner of the adjacent
property to the south where there is a bicycle shop business. This property is
owned by Burlington Boulevard LLC ("B.B. LLC").
No. 69639-4-1/3
Grandview redesigned the project in September 2010 so that it was limited
to encroaching on an easement Grandview shared with B.B. LLC between their
respective properties ("revised design"). This design was also problematic. But
Grandview did not submit any further revisions to the project.
Several months later, the City issued its "Final Environmental Impact
Statement." This identified potential safety and traffic impacts of the proposal,
and it proposed alternatives, such as relocating neighboring businesses or
redesigning the intersection.
In February 2011, the Planning Commission considered Grandview's
proposal. At the meeting, the Planning Director expressed concerns over both
the original design and the revised design. The Planning Commission denied
Grandview's proposal and made its findings of fact and conclusions of law.
Grandview appealed the Planning Commission's decision to the
Burlington City Council. By its written decision dated May 12, 2011, the City
Council affirmed the Planning Commission's denial. It made its findings of fact
and conclusions of law.
Grandview brought this LUPA action in April 2011, claiming errors related
to the City's decision to issue a determination of significance, and the City's
decision to deny the development application. Grandview also alleged that the
City's actions violated 42 U.S.C. § 1983.
In superior court, the City moved to dismiss for failure to serve B.B. LLC
as an indispensable party. The superior court denied this motion.
No. 69639-4-1/4
After a hearing, the superior court entered its own findings of fact and
conclusions of law and an order affirming the decision of the City Council.
Grandview appeals. The City cross-appeals.
LAND USE PETITION ACT
Grandview argues that the superior court erred when it denied relief under
LUPA by affirming the City's denial of Grandview's land use application. We hold
that Grandview fails in its burden to show it was entitled to relief.
LUPA is the exclusive means of judicial review of land use decisions.1
RCW 36.70C.130 outlines the standards for the superior court to grant relief
requested by a LUPA petitioner.2 The court may grant relief only if the party
seeking relief has carried the burden of establishing that one of six standards has
been met.3
"An appellate court stands in the same shoes as the superior court and
reviews the administrative record."4 Alleged errors of law are reviewed de novo
and questions of fact are reviewed for substantial evidence.5 When reviewing a
decision under LUPA, an appellate court "'must give substantial deference to
1 RCW 36.700030(1).
2RCW36.70C.130(1).
3lcL
4 King County. Dep't of Dev. and Envtl. Servs. v. King County, 177Wn.2d
636, 643, 305 P.3d 240 (2013).
5 Id.No. 69639-4-1/5
both the legal and factual determinations of a hearing examiner as the local
authority with expertise in land use regulations.'"6
Grandview argues that the following four subsections of RCW
36.700130(1) warrant relief in this case:
(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;
(f) The land use decision violates the constitutional rights of the
party seeking relief.
Substantial Evidence
Grandview argues that the City's decision to deny the land use application
is not supported by substantial evidence when viewed in light of the whole
record. It argues instead that the evidence supports its proposal, because it
shows that the project would not have a significant impact on traffic and would
comply with "level of service" standards. We conclude that substantial evidence
supports the City's denial.
"Under the substantial evidence standard, there must be a sufficient
quantum of evidence in the record to persuade a reasonable person that the
6 Durland v. San Juan County, 174 Wn. App. 1, 12, 298 P.3d 757 (2012)
(quoting Lanzce G. Douglass, Inc. v. City of Spokane Valley, 154Wn. App. 408,
415-16, 225 P.3d 448 (2010)).
No. 69639-4-1/6
declared premise is true."7 When reviewing a challenge to the sufficiency ofthe
evidence supporting a land use decision, a court views facts and inferences "in a
light most favorable to the party that prevailed in the highest forum exercising
fact-finding authority . . . ."8 Doing so "'necessarily entails accept[ing] the
factfinder's views regarding the credibility of witnesses and the weight to be given
reasonable but competing inferences.'"9
Here, the City has prevailed in all forums to date.
In its written decision denying Grandview's application, the City Council
made 19 findings of fact and 8 conclusions of law. Generally, the findings
discussed both the original and revised designs and the problems related to
each. In general, the City concluded that there were public safety issues, traffic
issues, and adverse environmental impacts. It concluded that the original design
encroached onto B.B. LLC's property and contained fatal design flaws. It
concluded that the revised design did not comply with fire code requirements.
Accordingly, the City Council concluded that neither design was acceptable.
When viewing the facts and inferences in a light most favorable to the
City, we agree that there is substantial evidence in the record to show that: (1)
both designs had safety issues; (2) both designs interfered with B.B. LLC's use of
7 Phoenix Dev.. Inc. v. City of Woodinville. 171 Wn.2d 820, 829, 256 P.3d
1150(2011).
8 Id, at 828-29.
9 Spokane County v. Eastern Wash. Growth Momt. Hearings Bd.. 176 Wn.
App. 555, 565, 309 P.3d 673 (2013) (alteration in original) (internal quotation
marks omitted) (quoting State ex rel. Lioe &Wm. B. Dickson Co. v. County of
Pierce, 65 Wn. App. 614, 618, 829 P.2d 217 (1992)).
No. 69639-4-1/7
its property; (3) both designs would have an adverse impact on traffic; and (4) the
revised design did not conform to fire code requirements. Thus, the permit denial
was proper.
First, there is substantial evidence in the record that both designs
submitted by Grandview had safety issues.
GSA's peer review stated that the proposed site plan "offers no sidewalk
on the south side of the property forcing pedestrians to cross the driveway to
access the site sidewalk." It stated that this "will create unnecessary conflicts
between pedestrians and vehicles."
The City Engineer also expressed safety concerns about both designs.
He stated that the original design's plan for access to the bike shop is
"dangerous and unworkable." And he stated that the revised design is "unsafe"
because "the skew angle of the intersection becomes extremely problematic, not
in accordance with sound engineering design practices."
The final environmental impact statement stated that the proposal "will not
allow for a protected movement for southbound left-turns as may be needed for
safety." It indicated the original design was a "potentially dangerous design that
requires drivers to cross the lanes of traffic at the signal," and it noted that there
would "be an increased potential for traffic accidents."
The Assistant City Engineer also expressed concerns about safety with
the revised design. He stated: "I sure wouldn't want to be a pedestrian trying to
navigate around this skewed intersection. There are so many issues with this
design." He stated that "[t]he leftturn out is problematic, not safe." Additionally,
No. 69639-4-1/8
he identified several hazards of skewed intersections including: difficulty for older
drivers to turn their heads for an adequate line of sight; a decrease in drivers'
sight angle for observation of opposing traffic and pedestrian crossings; and
difficulty for drivers to align their vehicles in the correct lane.
In sum, there was substantial evidence that both designs had safety
issues.
Grandview argues that the record does not support the assertion that the
design of the intersection was unsafe. But, for the reasons explained above, this
appears to be nothing more than a disagreement over what the record shows.
Grandview also argues that a "glaring flaw" in this argument is that the
intersection "is in existence at the present time." But as the City points out,
Grandview does not propose to utilize the intersection in its current form.
Accordingly, these arguments are not persuasive.
Second, there is substantial evidence that both designs would interfere
with B.B. LLC's property. Grandview's original design would have encroached
on B.B. LLC's main property. Grandview's revised design would affect that
property as well as the access to a shared easement. In a letter to the City
Council, B.B. LLC emphasized that either proposal would have an adverse
impact.
The evidence showed not only that B.B. LLC's main property would be
affected under the original design, but that B.B. LLC's property within the
easement would also be affected under the revised design. The revised design,
which the City received in September 2010, showed that Grandview's project
8
No. 69639-4-1/9
would be constructed on B.B. LLC's real property but entirely within a mutual
access easement located along the boundary line. B.B. LLC asserts that its
north property line runs approximately through the center of the easement.
Grandview does not dispute that part of the easement is located upon B.B. LLC's
property. This was also acknowledged by Grandview's representative who
stated:
The majority of the driveway improvement remains on
[Grandview's] property, and a small southern portion of the
driveway does extend upon the adjacent bike shop property, but
not beyond the legal extent offered to [Grandview] by the existing
ingress, egress, and utility easement that is shared between
[Grandview's] property and [B.B. LLC's] property.'101
Moreover, the revised design affects B.B. LLC's access and use of the
easement. A representative for B.B. LLC stated the "biggest issue for [B.B. LLC]
is ingress/egress to their property" because the design would change the
configuration of getting in and out of the bike shop. B.B. LLC's representative
stated that if a street is constructed on the north boundary to replace the current
easement, it will "wall off [its] property from the north and make the property
virtually an island" leaving only a "small and inadequate" driveway.
In sum, there was substantial evidence that the proposal would affect B.B.
LLC's real property or interfere with its use of the easement.
Grandview argues that the proposal would not encroach upon B.B. LLC's
property, "but instead, would be confined to the easement that existed between
the two properties." This admission illustrates the problem. As the record
10
Clerk's Papers at 2530.
No. 69639-4-1/10
shows, this design also affects B.B. LLC's access and use of the easement, a
property right that Grandview cannot ignore. Thus, Grandview's argument is not
persuasive.
Third, there is substantial evidence that Grandview's proposal would have
adverse impacts on traffic.
The City's traffic consultant identified several problems. Initially, he noted
that the skewed intersection and conflicting left turns would require the existing
signal to operate in "split phase mode," which is "unacceptable in terms of
providing efficient traffic circulation." He stated that split phase operations have a
"deleterious impact on signal coordination in the corridor." Further, he noted a
"cut through" route would be created through Costco to avoid the intersection.
In his second peer review, he noted additional problems. One issue was
excessive "queuing." Specifically, he identified intersections where queue length
exceeds the storage capacity of the lane. He stated that the storage lanes "must
either be redesigned or the signal timings changed to eliminate the excessive
queuing."
Another issue was "channelization." He explained that the site access
roadway is "inadequate to accommodate the anticipated traffic demand."
Additionally, he noted that the proposed access "does not meet the minimum
arterial standard for intersection spacing."
He also identified issues with the "level of service" analysis conducted by
Gibson, Grandview's consultant. He examined Gibson's conclusions that the
10
No. 69639-4-1/11
level of service complied with the standards, and he pointed to conflicting data.
He also predicted drops in level of service.
Finally, he indicated that Gibson's analysis had deficiencies. This point
was supported by a letter submitted from Transportation Solutions Inc., on behalf
of Costco. That letter stated that the lack of queue data rendered Grandview's
traffic analysis "fundamentally flawed and inadequate."
In addition to the City's traffic consultant's analysis, a representative from
Costco also stated that there are operational issues associated with the
proposed intersection.
In sum, there is substantial evidence that there would be adverse traffic
impacts, including problems with circulation, queuing, channelization, intersection
spacing, and changes to the level of service.
Grandview argues that its data shows that there is no impermissible
decrease in level of service and that the City's assertion to the contrary is a
"misinterpretation of the data." But inferences are taken in the light most
favorable to the City, as it was the party that prevailed in the highest forum
exercising fact-finding authority.11 Thus, this argument is not persuasive.
Grandview also argues that the City's peer review failed to identify level of
service deficiencies. But the City's consultant identified data that conflicted with
Grandview's analysis. Additionally, he indicated that there would be specific
drops in level of service. Moreover, he identified flaws in Grandview's analysis
and conclusions.
11 See Phoenix Dev.. Inc.. 171 Wn.2d at 828-29.
11
No. 69639-4-1/12
Further, as previously discussed, the City's consultant identified several
other problems related to traffic, including queuing, channelization and circulation
issues. Grandview fails to address any of these issues or explain why these
concerns are immaterial. Thus, Grandview's argument about level of service is
unpersuasive.
Fourth, there is substantial evidence that the revised design did not
conform to fire code requirements. The City's Fire Chief stated that the fire
apparatus access in the revised design is "insufficient throughout the site and
does not conform to Fire Code requirements." The City Council concluded that
this design "does not allow fire department access to the site, in violation of BMC
Section 12.28.100 et. seq., and Art. 503.1 of the International Fire Code." This
was also not addressed by Grandview.
Overall, the City's decision to deny Grandview's application was supported
by substantial evidence.
Grandview makes several general arguments that the evidence was not
sufficient to deny the application, but none of its arguments are persuasive.
First, Grandview "takes exception" to six findings of fact. But Grandview
does not specifically challenge the sufficiency of these findings, nor does it make
any argument related to them.12 Grandview also does not specifically argue
against any of the City's conclusions of law. Rather, Grandview argues
generally, that the land use decision is not supported by substantial evidence.
12 See Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828
P.2d 549 (1992) (declining review of issues unsupported by argument).
12
No. 69639-4-1/13
But this general argument fails given the reasons previously discussed in this
opinion.
Second, Grandview compares the evidence in this case to that presented
in The Benchmark Land Co. v. City of Battle Ground.13 But that case is
distinguishable.
There, the city required Benchmark to improve an off-site road as a
condition to approving its development application.14 The city argued that the
improvements were required by ordinance.15 At issue in that case was the code
provision requiring certain improvements as a condition for approval.
The supreme court held that the condition for approval was not supported
by substantial evidence and that the condition was invalid.17 Its analysis
centered on the facts that (1) the road did not meet standards even before
developmentwas proposed; (2) the improvements were not directly related to the
development but rather would relieve a preexisting deficiency; and (3) traffic
studies found that the development would have little to no impact on safety and
operations on that section of the road.18
13146 Wn.2d 685, 49 P.3d 860 (2002).
14 ]d at 688-89.
15 ]d at 689.
16JcL
17 ]g\ at 688.
18 See id. at 695.
13
No. 69639-4-1/14
Here, in contrast, this City did not condition Grandview's proposal on a
specific improvement. Rather, the City proposed several alternatives when it
recognized that Grandview's proposal was problematic. Additionally, the
alternatives proposed by the City were related to concerns about the
development, not about a preexisting deficiency. Moreover, evidence showed
that Grandview's proposal would directly impact the safety, operations, and traffic
at that particular intersection, and thus, the proposed alternatives were not
related to an unaffected section of road. Accordingly, Grandview's reliance on
Benchmark is not persuasive.
Third, Grandview argues that the City's approval of another project ("the
Copeland project") also demonstrates that the denial of Grandview's project is
not supported by substantial evidence. Specifically, it argues that the two
projects involved the same intersection but that the approach taken by the City in
the two projects was "vastly different." But comparing the City's approach in
these two cases is not relevant to the analysis of whether there was substantial
evidence to support the denial of Grandview's application. Rather, this argument
is more appropriate for Grandview's constitutional argument, which we discuss
later in this opinion.
Finally, Grandview argues that the City relied upon facts that are contrary
to the record and that contradict each other. Grandview compares Finding of
Fact No. 12, which acknowledges that the proposal was redesigned to not
encroach on B.B. LLC's property, with Finding of Fact No. 16, which states that
the project "proposes to take part of the property to the south without agreement
14
No. 69639-4-1/15
from the owner." But Grandview's argument misstates the City's findings. In
finding No. 12, the City indicated that it was referring to the revised plan, and in
finding No. 16, the City explicitly states that it is referring to "the earlier proposal,
dated April 15, 2008." Accordingly, these findings do not contradict each other
because they are referring to different designs. Additionally, both findings are
supported by the record. Thus, Grandview's argument is not persuasive.
Erroneous Interpretation of the Law
Grandview argues that the City erroneously interpreted the law when it
"chose to ignore the mandates of [the Growth Management Act ("GMA")] and its
duly adopted comprehensive plan and development regulations." But such an
argument is relevant to an analysis of whether the City erroneously applied the
law, which is discussed later in this opinion. For this standard, Grandview
appears to be arguing that the correct interpretation of the GMA and the
comprehensive plan is one that requires approval of a project showing
compliance with level of service standards. We disagree.
Whether an administrative decision reflects an erroneous interpretation of
the law under LUPA is a question of law that this court reviews de novo.19 As
previously noted, RCW 36.700130(1 )(b) provides that the superior court may
grant relief if "[t]he 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."
19 Dep't of Ecology v. City of Spokane Valley. 167 Wn. App. 952, 961, 275
P.3d 367, review denied. 175 Wn.2d 1015 (2012).
15
No. 69639-4-1/16
The GMA requires local jurisdictions to "adopt and enforce ordinances
which prohibit development approval if the development causes the level of
service ... to decline below the standards adopted in the transportation element
of the comprehensive plan, unless transportation improvements or strategies to
accommodate the impacts of development are made concurrent with the
development."20
Here, the City's comprehensive plan states:
2. The planned Level of Service is not to exceed Level of
Service C except for the Burlington Boulevard corridor which is not
to exceed Level of Service D. [. . .]
3. Proposed projects that decrease the level of service below
the planned level, because of their traffic contribution, shall be
denied unless concurrent improvements are made to prevent a
decrease in level of service below the planned level for that
location. [. . . ][21]
But, as the City points out, the comprehensive plan is adopted by ordinance.22
The City cites to Burlington's Municipal Code § 12.28.010(D) for the relevant law:
The city of Burlington comprehensive transportation plan has
adopted level of service "C" for all streets except Burlington
Boulevard, for which a level of service "D" is adopted. If a traffic
study meeting the specifications of the city engineer is prepared
that demonstrates that the development causes the level of service
to decline below the adopted standards, then transportation
improvements or strategies to accommodate the impacts of
development are required to be made concurrent with the
20 RCW 36.70A.070(6)(b).
21 Brief of Appellant at 4-5 (quoting City of Burlington Comprehensive
Plan, Chapter 10).
22 Brief of Respondent/Cross-Appellant City of Burlington at 3, 35-36.
16
No. 69639-4-1/17
development, or the development permit application shall be
denied.[23]
Here, these provisions all stand for the same proposition. They all
mandate denial of a development application if the level of service would fall
below the adopted standards. But none of these provisions mandate the
inverse—approval of a development application if the level of service would
comply with the adopted standards. The plain language of these provisions does
not compel the City to approve Grandview's application based solely on
compliance with level of service standards. Grandview does not cite any other
provisions to support its argument to the contrary.
Grandview relies on City of Bellevue v. East Bellevue Community
Municipality Corp.. where this court held that the Growth Management Act
("GMA") does not allow a city to circumvent its own statutorily required
concurrency ordinance.24 Grandview argues that "is precisely what the City has
done in this case, although in reverse fashion."
There, the Bellevue City Code exempted certain types of projects from its
concurrency requirements, justifying the exemption on the grounds that these
projects would decrease traffic and provide necessary goods and services.25
The Board invalidated the exemption and this court upheld the Board's
23 id, (quoting Burlington Municipal Code 12.28.010(D)).
24 119 Wn. App. 405, 407, 81 P.3d 148 (2003).
25 ]d at 412-13.
17
No. 69639-4-1/18
decision.26 This court stated that "concurrency is not a goal, it is a
requirement."27
But, here, the City did not create an exception to the ordinance when it
denied Grandview's application. The holding in Bellevue should not be extended
to compel approval ofa proposal for compliance with one requirement.28
Grandview's reliance on that case is not helpful.
Erroneous Application of the Law
Grandview argues that the City erroneously applied the law to the facts.
Specifically, it argues that its project complied with level of service standards and
the City erred by failing to adhere to these standards. We disagree.
Under LUPA, a land use decision is a clearly erroneous application of the
law to the facts, if "the reviewing court is left with the definite and firm conviction
that a mistake has been committed."29
Here, we have no "definite and firm conviction" that the City erroneously
applied the law for two reasons.
First, the City's peer review identified deficiencies with Grandview's
analysis, disputed some of Grandview's conclusions, and pointed to specific
drops in level of service. This report could be interpreted to show that
26 Id at 413-15.
27 jd, at 414.
28 119 Wn. App. 405, 81 P.3d 148 (2003).
29 Citizens to Preserve Pioneer Park LLC v. City of Mercer Island. 106 Wn.
App. 461, 473, 24 P.3d 1079 (2001).
18
No. 69639-4-1/19
Grandview's plan does not comply with level of service standards. It could also
show that Grandview's study did not meet the specifications of the city engineer.
Second, as previously discussed, the relevant law does not require
approval of an application solely for compliance with level of service standards.
Thus, even if Grandview's plan complied with these standards, the City did not
erroneously apply the law when it denied Grandview's application for the reasons
it did.
Grandview argues that it is "nonsensical" to conclude that a City is
required to reject a proposal unless the standards are met, and at the same time
the City is free to reject a proposal that complies with the standards. But the law
expressly requires the City to reject a noncompliant proposal, and the law does
not require the City to accept a proposal that complies with one requirement.30
Thus, Grandview's argument is not persuasive.
Grandview compares its plan to the Copeland project, arguing that the
Copeland project did not comply with level of service standards, yet it was
approved. But even if this were true, this does not affect application of the law to
the facts in this case. This argument is not analytically relevant.
Equal Protection
Grandview argues that the denial of its application violates the equal
protection clauses of both the state and federal constitutions. Specifically,
Grandview argues that by denying its permit application and by approving the
Copeland project, the City intentionally treated Grandview differently from others
30 See RCW 36.70A.070(6)(b).
19
No. 69639-4-1/20
similarly situated, and there is no rational basis for the difference in treatment.
We disagree.
As an initial matter, the City moved to strike pursuant to RAP 17.4(d) and
asks this court to overturn the trial court's order allowing supplementation of the
record with documents related to the Copeland project. The City argues that the
documents do not meet any of the LUPA standards for supplementation and they
are not "newly discovered evidence." Grandview does not make any argument to
this point in its reply. Based on the law, we grant the City's motion and disregard
material that is not properly before us.
Generally, under LUPA, our review is limited to the record that was before
the Board.31 Supplementing the record in LUPA is limited by RCW
36.700120(2):
(2) For decisions described in subsection (1) of this section,
the record may be supplemented by additional evidence only if
the additional evidence relates to:
(a) Grounds for disqualification of a member of the body or
of the officer that made the land use decision, when such
grounds were unknown by the petitioner at the time the
record was created;
(b) Matters that were improperly excluded from the record
after being offered by a party to the quasi-judicial
proceeding; or
(c) Matters that were outside the jurisdiction of the body or
officer that made the land use decision.[32]
31 Kahuna Land Co. v. Spokane County. 94 Wn. App. 836, 841, 974 P.2d
1249(1999).
32 (Emphasis added.)
20
No. 69639-4-1/21
An appellate court will review the trial court's decision to introduce new
evidence for abuse of discretion.33
These documents do not fall within any of the three exceptions under the
LUPA statute. Accordingly, allowing the supplementation was not a proper
exercise of discretion.
We disregard the evidence not properly before us. Grandview fails to
point to any evidence outside of this supplemental record to support its claim that
its equal protection rights were violated under either the state or federal
constitutions. Accordingly, we reject this claim.
In sum, Grandview fails to demonstrate that it was entitled to relief under
LUPA. The trial court properly dismissed Grandview's claims for relief.
MOTION TO DISMISS
The City properly conceded at oral argument of this case that it is not
necessary to reach its cross-appeal regarding the denial of the motion to dismiss
if we deny Grandview's request for relief on appeal. Accordingly, we do not
reach the City's arguments on its cross-appeal.
ATTORNEY FEES
Both Grandview and the City ask for attorney fees pursuant to RCW
4.84.370. We grant the City's request.
RCW 4.84.370(1) provides that reasonable attorney fees and costs shall
be awarded to the prevailing party on appeal. Further, RCW 4.84.370(2)
provides that in an appeal of a land use decision "the county, city, or town whose
33 Exendine v. City of Sammamish, 127 Wn. App. 574, 586, 113 P.3d 494(2005).
21
No. 69639-4-1/22
decision is on appeal is considered a prevailing party if its decision is upheld at
superior court and on appeal."
Here, the City's decision was upheld at the superior court. Accordingly,
the City is the prevailing party and has the right to recover fees. We award such
fees, subject to its compliance with RAP 18.1.
We affirm the superior court's decision denying relief under LUPA and
affirming the decision of the City Council. We also grant the City's request for
attorney fees, subject to its compliance with RAP 18.1.
(JZJA^X
WE CONCUR:
^r_(2uWfl Q, -, C\ v" -A
22