Snohomish County Improvement Alliance v. Snohomish County , 61 Wash. App. 64 ( 1991 )

Scholfield, J.

Snohomish County Improvement Alliance (SCIA) appeals the trial court's dismissal on summary judgment of its declaratory judgment action challenging a decision of the Snohomish County Council regarding a rezone application. We affirm.

Facts

Phoenix Development, Inc., Tom Parmenter, and Donald Littrell (Phoenix) are the owners of a parcel of land in Snohomish County. Phoenix sought a rezone of the property from Residential 8,400 and Suburban Agriculture 1 Acre to Planned Residential Development 8,400 and Planned Residential Development 20,000. It also sought a Shoreline Substantial Development Permit and preliminary plat approval.

The hearing examiner determined that the State Environmental Policy Act of 1971 (SEPA), RCW 43.21C.030-(2)(c), required the preparation of an environmental impact statement (EIS), denied the rezone application, and determined that the plat application and the application for a shoreline development permit required modification.

Phoenix appealed the hearing examiner's decision to the Snohomish County Council. Public hearings were conducted on July 31 and September 20, 1989. At the close of the public testimony at the September 20 hearing, the Council passed a motion to remand the matter back to the hearing examiner. The oral motion was made as follows:

Bartholomew: Well, maybe I can get it started. I think there's certainly a quantity of issues that have been raised that justify a remand back to the Hearing Examiner. I think the issue of compatibility, the existing zoning versus previous zoning, wetland mitigation, the potential of a DNS, an expanded DNS checklist ... I think, I think all of those would be reason to remand it back to the Hearing Examiner and I certainly would welcome some comments. I'd make that in a motion if you so desire.

The motion was seconded. Questions were asked concerning exactly what the impact of the motion would be, and the Council's attorney, Gordon Sivley, was asked for clarification:

corcoran: My point is that to remand it based on, the appeal is based on . . . they're appealing the Determination of Significance, isn't that right?

So we have to say to remand it back we have to articulate that that is incorrect to require that Determination of Significance.

sivley: The Council motion would have to be basically as follows. If the Council finds that the Determination of Significance was in error . . .

. . . that there are not probable significant adverse impacts for the following reasons, and then detail what those reasons are.

mclaughlin: Is there no other way to remand it?

sivley: Well, if you're going to ask for a different environmental analysis, you need to do that. You need to either affirm or reject the environmental determination that's been made. If you are to reverse it, you have to enunciate your reasons why it was determined to be in error and how it's to be redone.

brubaker: Well, for what it's worth, I agree with the maker of the motion. I think that the reconcilable differences, or that they're not nonreconcilable. That the comp plan is a guide and zoning's a brush. I think the density issue's been already addressed in the development surrounding the proposal. I feel an EIS is out of the ordinary, and if you look at the, our own analysis says that the traffic mitigation has been addressed. . . .

brubaker: Well, I have a motion and a second before this body. Is there any further comment or questions?

Bartholomew: Call for the question.

The vote on the motion was then recorded.

A written decision on the Phoenix appeal was issued, reversing the decision of the hearing examiner, adopting findings 1 through 40 and conclusions 1, 2, 4, 5, 23, 24, and 25 of the hearing examiner, and adding findings 41, 42, and 43 and conclusions 26 through 33. The written decision was signed by Brubaker as chairman and attested by the assistant clerk of the Council. Official notice of the Council's decision was mailed to parties of record sometime between September 20 and 25.

Debbie Abrahamsen, president of SCIA, sent a letter to the Council dated October 2, 1989, contending that the decision was improper. The letter specified three problems with the decision:

1. It conflicts with all previous decisions on the same issue;

2. Two Councilmembers accepted large campaign contributions from sources who stand to profit from the Council action;[¹] and

3. Section 2.50.030 of the Snohomish County Ethics Code has been violated.

Chairman Brubaker responded to Abrahamsen's letter, denying her request for vacation of the decision on the basis that there was no provision for reconsideration except for a clerical error. However, the letter reminded Abraham-sen of her right to participate as a party of record in further proceedings before the hearing examiner or to appeal the decision to superior court.

On November 1, 1989, SCIA filed a petition for constitutional and statutory writs of review and a complaint for declaratory and injunctive relief in superior court. The lawsuit was dismissed on summary judgment in January 1990. In its order granting summary judgment, the trial court concluded that the petitions for the writs of review and the challenge to the SEPA determinations were barred by the 15-day statute of limitations; that SCIA had standing to commence the declaratory judgment action; that the Council did not violate RCW 42.30, the Open Public Meetings Act of 1971; that the Council did not violate the appearance of fairness doctrine when two members participated in the decision after receiving campaign contributions from interested parties; and, in addition, that this was not a conflict of interest as defined in Snohomish County Code (SCC) 2.02.070; and finally, that the lawsuit was not frivolous, so no attorney's fees would be awarded.

Statutes of Limitation

The Snohomish County Code provides for a limitation of 15 days within which to file an appeal by writ of certiorari from a County Council decision on an appeal from a decision of a hearing examiner. SCC 2.02.190. The complaint in this case was not filed until November 1, 1989, well beyond the 15 days. Appellant's brief makes the bare assertion that the trial court erred in holding the applications for writs of review were barred by the 15-day limitation. However, appellant cites no authority and makes no argument on the issue. Contentions not supported by argument or authority need not be considered on appeal. RAP 10.3(a)(5); Bremerton v. Shreeve, 55 Wn. App. 334, 338, 777 P.2d 568 (1989).

SCIA argues that the County Council decision was void and therefore could be attacked at any time. SCIA's complaint attacking the validity of the County Council decision was dismissed by the trial court on its substantive merits. The dismissal was not based on a statute of limitation. Accordingly, there is no statute of limitation issue before the court on this appeal.

Open Public Meetings Act of 1971 (OPMA) Pertinent provisions of OPMA read in pertinent part:

(1) No governing body of a public agency shall adopt any ordinance, resolution, rule, regulation, order, or directive, except in a meeting open to the public and then only at a meeting, the date of which is fixed by law or rule, or at a meeting of which notice has been given according to the provisions of this chapter. Any action taken at meetings failing to comply with the provisions of this subsection shall be null and void.

RCW 42.30.060(1). The chapter defines the term "action" as follows:

(3) "Action" means the transaction of the official business of a public agency by a governing body including but not limited to receipt of public testimony, deliberations, discussions, considerations, reviews, evaluations, and final actions. "Final action" means a collective positive or negative decision, or an actual vote by a majority of the members of a governing body when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance.

RCW 42.30.020(3). In addition, the Snohomish County Code also forbids private meetings of the Council:

All meetings of the council shall be open to the public, and all persons shall be permitted to attend such meetings, except that this section shall not apply to executive sessions as authorized by the laws of the state of Washington. The council shall not adopt any ordinance, resolution, rule, regulation, order or directive except at meetings open to the public and held according to the provisions of this chapter.

SCC 2.48.070.

SCIA contends the decision of the County Council reversing the ruling of the hearing examiner is null and void because in rendering that decision, OPMA was violated. SCIA's theory is that the written decision filed between September 20 and September 25 contains findings and conclusions which were not decided at the meeting of September 20, and contain substantive matters not included in Bartholomew's motion.

One of the purposes of OPMA is to give the public ready access to firsthand knowledge of the deliberations and decisions of public agencies where the executive session exception does not apply.

The record in this case discloses that the Phoenix application was discussed in public hearings on July 31 and September 20, 1989. Bartholomew's motion was made after the close of public testimony and makes specific, although admittedly cryptic, mention of (1) compatibility,² (2) wetland mitigation, and (3) the potential of a determination of nonsignificance. Chairman Brubaker, immediately before the vote was taken, summarized his views, specifically mentioning (1) reconcilable differences,³ (2) the density of population issue, (3) the issue of an EIS, and (4) traffic mitigation.

It is implicit from Bartholomew's motion and Brubaker's comments that the mentioned issues had been the subject of considerable prior discussion and/or testimony. Furthermore, it is clear from the comments of Gordon Sivley that the councilmembers knew they were reversing the hearing examiner's conclusion that SEPA required the preparation of an EIS.

It must be kept in mind that the Council adopted the hearing examiner's findings 1 through 40 and added to its written decision findings 41, 42, and 43. Finding 41 related to the compatibility of actual development densities with the proposed zoning. Finding 42 related to the compatibility between the proposed zoning and the existing comprehensive plan which was adopted in 1973. Finding 43 referred to wetland mitigation by keeping disturbance to the land "outside the 100 foot stream corridor to the maximum extent possible."

It is thus apparent that the additional findings made in the Council's written decision all involve subjects which were discussed in the hearings and were mentioned in the motion or Brubaker's summary of the issues made immediately prior to the vote on the motion.

The conclusions made by the Council also relate to the same issues of reconciling the requested zoning to the comprehensive plan: comparing the density involved in the requested zoning with the existing development of surrounding areas and protecting existing wetlands.

As SCIA argues, it is true that the findings and conclusions and the Council's written decision are much more expansive and detailed than the councilmembers' discussions set forth in the limited transcript provided for us in this appeal.

The Snohomish County Code provides in part as follows:

(5) At the conclusion of the public hearing, the council shall enter its decision which shall set forth the findings and conclusions of the council in support of its decision. The council may adopt any or all of the findings or conclusions of the examiner which support the council's decision. The council may affirm the decision of the examiner, reverse the decision of the examiner either wholly or in part, or may remand the matter to the examiner for further proceedings in accordance with the council's findings and conclusions.

(6) The council's decision shall be reduced to writing and entered into the record of the proceedings within fifteen days of the conclusion of the hearing. Copies of the decision shall be mailed to all parties of record.

SCC 2.02.180(5), (6).

The Council complied with the requirements of SCC 2.02.180 in entering a written decision which resolved the issues discussed at the hearings. The subjects discussed in the hearings and those covered in the findings and conclusions of the ultimate decision were the same.

It is to be expected that the findings and conclusions which state in detail the basis and reasons for the Council's ultimate decision will be more expansive and detailed than the wording of the motion ultimately adopted. The important aspect is that the decision be consistent with the issues discussed in open hearing and the oral decision made at that time. That occurred here.

In Martel v. Vancouver, 35 Wn. App. 250, 666 P.2d 916 (1983), an action challenging a zoning variance granted to landowners, the Board of Adjustment filed its written findings and conclusions several weeks after the hearing in which the variance was granted. The appellants contended that the written findings included factual determinations that were not articulated by the Board at the conclusion of its deliberations at the hearing. Martel, at 258.

The Martel court disagreed, citing North St. Ass'n v. Olympia, 96 Wn.2d 359, 635 P.2d 721 (1981). The Martel court stated:

Written findings and conclusions entered by a public body adjudicating land use issues may serve to elucidate the scope of the body's immediate oral decision. . . . The findings accurately reflect the proceedings and the Board's deliberations. We find no error in the procedure followed here.

(Citation omitted.) Martel, at 258-59. The written decision of the Snohomish County Council accurately reflects the proceedings and deliberations involved in the Phoenix application. We agree with the trial court that there was no violation of OPMA.

Appearance of Fairness

SCIA contends that the campaign contributions received by councilmembers Bartholomew and Britton from interested persons during the pendency of Phoenix's appeal to the County Council constituted a prehearing contact prohibited by SCC 2.02.070 and also violated the appearance of fairness doctrine. Both Britton and Bartholomew voted in favor of the motion.

When hearing an appeal of a rezone application, the county council acts in a quasi-judicial capacity. RCW 42.36.010; Fleming v. Tacoma, 81 Wn.2d 292, 502 P.2d 327 (1972); Barrie v. Kitsap Cy., 84 Wn.2d 579, 586, 527 P.2d 1377 (1974). The appearance of fairness doctrine applies to quasi-judicial proceedings. RCW 42.36.010; Fleming v. Tacoma, supra.

RCW 42.36.060 prohibits ex parte communication in quasi-judicial proceedings and provides as follows:

During the pendency of any quasi-judicial proceeding, no member of a decision-making body may engage in ex parte communications with opponents or proponents with respect to the proposal which is the subject of the proceeding unless that person:

(1) Places on the record the substance of any written or oral ex parte communications concerning the decision of action; and

(2) Provides that a public announcement of the content of the communication and of the parties' rights to rebut the substance of the communication shall be made at each hearing where action is considered or taken on the subject to which the communication related. This prohibition does not preclude a member of a decision-making body from seeking in a public hearing specific information or data from such parties relative to the decision if both the request and the results are a part of the record. Nor does such prohibition preclude correspondence between a citizen and his or her elected official if any such correspondence is made a part of the record when it pertains to the subject matter of a quasi-judicial proceeding.

RCW 42.36.050 speaks to the application of the doctrine to campaign contributions:

A candidate for public office who complies with all provisions of applicable public disclosure and ethics laws shall not be limited from accepting campaign contributions to finance the . campaign, including outstanding debts; nor shall it be a violation of the appearance of fairness doctrine to accept such campaign contributions.

RCW 42.36.050.

The Snohomish County Code addresses the question of the appearance of fairness doctrine in SCC 2.02.070:

No examiner shall conduct or participate in any hearing, decision or recommendation in which the examiner has a direct or indirect substantial financial or familial interest or concerning which the examiner has had substantial prehearing contacts with proponents or opponents. Nor, on appeal from an examiner decision, shall any member of the council who has such an interest or has had such contacts participate in consideration thereof.

The trial court resolved these issues against SCIA, stating in its order as follows:

It did not constitute a violation of the Appearance of Fairness Doctrine when two Councilmembers participated in this case after contemporaneously receiving campaign contributions from interested parties. RCW 42.36.050. Moreover, such participation by said Councilmembers was not a conflict of interest as defined in Section 2.02.070 of the Snohomish County Code. The mere receipt of campaign contributions by a council-member does not constitute a "direct or indirect substantial financial or familial interest," and does not constitute "substantial pre-hearing contacts with proponents or opponents."

There is no contention here that the campaign contributions were not duly reported as required by the public disclosure act, RCW 42.17. Phoenix so asserts in its brief, and SCIA does not contend otherwise.

RCW 42.36.060 prohibits ex parte communications with a member of the decision-making body. However, in this record there is no evidence of a communication with Bartholomew or Britton. While the term "communication" is not defined in the statute, in the context in which the word "communication" is used here, its commonly understood definition involving giving or exchanging ideas or information should be applied. Webster's Third New International Dictionary 460 (3d ed. 1969). Where we have a statute permitting campaign contributions if fully disclosed, it would run counter to legislative intent to hold that what is permitted in one statute can be said to violate another statute.

We agree with the trial court that the appearance of fairness doctrine was not violated here and that there was no ex parte communication between the councilmembers and the members of Phoenix. We also concur in the view of the trial court that campaign contributions made here did not create a conflict of interest in the recipient.

Cross Appeal

In its cross appeal, respondent Phoenix challenges the trial court finding that SCIA has standing to bring this action. Phoenix also contends that the trial court erred in not finding appellant's complaint was frivolous and awarding respondents reasonable attorney's fees.

Because of our disposition of the issues raised in this appeal, it is not necessary to address the question of whether SCIA had standing.

We agree with the trial court that appellant's complaint was not frivolous. The complaint raised debatable issues, both in respect to OPMA and the campaign contributions. Streater v. White, 26 Wn. App. 430, 434-35, 613 P.2d 187, review denied, 94 Wn.2d 1014 (1980).

Judgment affirmed.

Grosse, C.J., concurs.

1 Bartholomew accepted $1,000 from Sundquist Homes and $150 from Group Four, Inc. Britton accepted $500 in contributions from Larry Sundquist. Larry Sundquist is vice-president of Phoenix. Group Four, Inc., is the plat designer for Willow Glen Division 3, the Phoenix development at issue here.

2 The record makes it highly probable Bartholomew was speaking of the compatibility between the proposed zoning and existing development of nearby properties.

3 Here again, it is highly probable this reference is to the difference between the proposed zoning and the existing comprehensive plan.