DocketNumber： No. 71430-4
Judges： Madsen, Smith
Filed Date： 1/23/2003
Status： Precedential
Modified Date： 11/16/2024
—Appellant Pierce County seeks direct review of a Thurston County Superior Court judgment in favor of Respondent HJS Development, Inc., overturning a decision
QUESTIONS PRESENTED
The questions presented in this case are (1) whether the Pierce County hearing examiner had the authority to revoke a preliminary plat approval under former Pierce County Code 18.50.970 and 18.50.975; (2) whether state laws, chapter 58.17 RCW—establishing procedures for approving subdivision plats—preempt local ordinances which permit a hearing examiner to revoke a preliminary plat approval; (3) whether revocation powers under the Pierce County Code conflict with RCW 58.17.140, which provides that a final plat meeting all requirements shall be submitted for approval within five years of preliminary plat approval; and (4) whether the decision by the Pierce County hearing examiner was clearly erroneous because he did not consider less harsh sanctions in enforcing conditions of the preliminary plat approval.
STATEMENT OF FACTS
On December 30, 1994 Respondent Fox Ridge Investments
At the time the plat application was filed on December 30, 1994 and prior to the effective date of the County’s Comprehensive Plan, the local zoning laws, Rural-Residential Environment,
In the review process for the proposal, Respondent was required to submit a geotechnical report to the Develop
On December 3, 1997 the Pierce County environmental official, Charles F. Kleeberg, issued a mitigated determination of nonsignificance (MDNS).
Condition (1) stated in párt:
The [Oregon White Oak Preservation] plan shall cause the preservation of not less than 80% of the Oregon White Oaks . . . .[19 ]
Condition (6)(a) stated:
The proposal shall comply with all recommendations contained with the June 1997 geotechnical report prepared for the development with the following modification:
a. Clearing within the building setback area shall be limited to removal of dead and dangerous trees and reasonable topping, clearing, and limbing for the purposes of creating view areas. Clearing below the top of the steep slope located on Lots 3 through 29 shall be prohibited, except that the applicant may selectively top, limb, or remove trees within this area to enhance view. Prior to the removal of any vegetation within this area, the applicant shall submit a clearing plan for the area to the Resource Management Development Engineering Sections of the Pierce County Planning and Land Services Department for review and approval. The purpose of the review shall be to ensure that vegetation removal in this area is strictly limited to only that reasonably necessary to provide for view areas within the lots and the removal of hazardous trees. Vegetation removal beyond this shall be prohibited. [20 ]
The edge of the Oregon White Oak Preservation Area shall be clearly staked and flagged prior to and through the completion of site development and construction. Prior to final plat approval, signage denoting the Oak Preservation Area shall be erected along the boundary of the area. The type of spacing of the signage shall be determined by the Pierce County Planning and Land Services Department. [21 ]
Condition (8) stated:
The steep slope and building setback area shall be clearly shown and labeled on the face of the preliminary and final plat as “Slope Protection Area Easement.”[22 ]
Condition (9) stated:
The following shall be placed on the face of the final plat:
“The Slope Protection Area Easement appearing on this plat shall remain in its natural state. The intent of this area is to protect slope stability and prevent erosion. There shall be no clearing, grading, filling, or construction of any kind within this area, except as shown on plans or documents approved by the Director of Pierce County Planning and Land Services, and contained in the official files for this project. Removal of dead or dangerous trees may be permitted upon receiving written approval from the Pierce County Planning and Land Services Department.” [23 ]
Condition (11) stated in part:
In order to minimize erosion, changes in surface water runoff characteristics, and minimize impacts to aesthetics and the rural character of the site, vegetation removal from the site during site development phase of the proposal, shall be limited to those areas necessary for the construction of roads and utilities, creation of building pads, and view shed creation approved by the Pierce County Planning and Land Services Department. Except for the clearing discussed above, all lots*462 shall remain in their natural, vegetated state until the time of building permit issuance. ____[24 ]
The Peninsula Advisory Commission (PAC) considered the proposed preliminary plat and heard public testimony at its January 14, 1998 meeting.
On February 5, 1998 a public hearing was held before Hearing Examiner Stephen K. Causseaux, Jr.
On September 2, 1998 the hearing examiner issued a report and decision approving the preliminary plat, subject to specified conditions, including those recommended by the PAC and Planning Staff and all those required by the MDNS.
Respondent applied for a site development permit for clearing in preparation for road construction in Division I on March 24, 1999.
On April 18, 2000, Ray Clark, a county inspector, conducted an unscheduled site inspection.
The DNR inspected the site and ultimately concluded that a forest practices permit was required for the west slope, but not for the other areas outside of this slope. Based upon this, the DNR issued a stop-work order on May 8, 2000.
On May 17, 2000 PALS notified Respondent it would take action to revoke the preliminary plat because of the violations of site development regulations and the preliminary plat conditions.
On November 13, 2000 the hearing examiner revoked the site plan and preliminary plat approvals and denied the request to rescind the moratorium.
[t]he clearing of the 50-foot landslide and erosion hazard area buffer and the removal of numerous significant trees on the steep slopes below the top of the bank constitute intentional and flagrant violations of conditions of approval and mitigating measures set forth in the Mitigated Determination of Nonsignificance issued pursuant to SEPA [State Environmental Policy Act of 1971, chapter 43.21C RCW] review .... These violations are especially egregious because the most significant issues associated with site plan and preliminary plat approval were concerned with protection of the steep slopes, the proper handling of storm water runoff, and the protection of homes below the slopes near the shoreline. The environmental official also imposed a number of mitigating measures addressing the preservation of vegetation on the slope and establishing an Oregon White Oak Preservation Area, all of which were agreed to by the applicant to avoid issuance of a Determination of*466 Significance and preparation of an Environmental Impact Statement,[49 ]
(Emphasis added.)
Respondent filed a timely request for reconsideration on November 22, 2000.
On January 24, 2001 Respondent filed an appeal in the Thurston County Superior Court under the Land Use Petition Act (LUPA), chapter 36.70C RCW, challenging the revocation and the moratorium.
The Thurston County Superior Court, the Honorable Daniel J. Berschauer, granted the LUPA petition and presided over the bench trial on June 7, 2001.
Appellant filed a notice of direct appeal with this court on August 7, 2001.
DISCUSSION
Standard of Review
Judicial review of a land use decision proceeds under the LUPA.
(a) The body or officer that made the land use decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless;
(c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court;
*468 (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.[64 ]
“When reviewing a superior court’s decision on a land use petition, the appellate court stands in the shoes of the superior court.”
State and Local Platting and Subdivision Processes
Development of real property in this state implicates both state statutes and local ordinances that impose subdivision and platting controls. The state statute, chapter 58.17 RCW, provides a general statutory scheme for regulating subdivision of land to ensure the orderly development of new areas for which new streets, sewers, drainage, and utilities will be needed.
Upon receipt of the recommendation, the legislative body conducts a public hearing on the plat application. In Pierce County the legislative body by ordinance has delegated to the hearing examiner the authority to review and decide plat applications.
Authority to Revoke Granted by Local Ordinances
Respondent contends the dispositive issue in this case is whether the hearing examiner possessed the power to revoke the preliminary plat.
Although the distinction between site plan approval and preliminary plat approval has been blurred with at least one Court of Appeals decision using the two terms interchangeably,
Former PCC 18.50.960 read in part: “Plats are exempt from all procedural requirements of the site plan review process-, however, a plat when being reviewed during the preliminary plat review and approval process, shall be reviewed for consistency with the Gig Harbor Development Plan .... A plat is exempt from [the] site plan approval process . . . .”
An administrative tribunal, such as the hearing examiner in this case, has only the authority granted it by statute or ordinance.
Interpretation of local ordinances is governed by the same rules of construction as state statutes.
Former PCC 18.50.975 provided for revocation of any permit, use or activity granted under the Pierce County Zoning Code. However, it did not expressly include preliminary plats as one of the three revocable categories. Respondent distinguishes preliminary plats from the three categories by reference to the definitions and derived meanings contained in former chapter 18.50 PCC.
In interpreting the three categories (permit, use or activity) listed in former PCC 18.50.975, this court examines the definitions and meanings of those terms contained in the regulations.
Former chapter 18.50 PCC defined “use” as follows:
“Use” of property is the purpose or activity for which the land, or building thereon, is designed, arranged or intended, or for which it is occupied or maintained and shall include any manner of performance of such activity with respect to the performance standards of this Regulation. The word “use” also means the word “development.”[93 ]
Under the first definition, a broad reading of “use” includes the definition of a preliminary plat. Construed broadly, “use” can be read to mean “the purpose ... for which the land, ... is designed, arranged, or intended . . . .”
The Pierce County Code further clarifies the meaning of the word by providing a second definition of “use.”
A. Any activity, other than normal agricultural activity which materially affect [s] the existing condition of land or improvements, such as:
1. Clear cutting of trees .. .
2. Substantial excavation of deposits of earth ...
3. Construction, reconstruction or alteration of any improvement . . .
4. Dumping or parking of any objects . . .
5. Commencement of any primary or substantial use of land and every change in its type of intensity.
B. Any change in the legal relationship of persons to land which materially affects development, such as: the division of land into two or more parcels or units to facilitate separate transfer of title to each parcel unit.[97 ]
Under this definition, an activity materially affecting the condition of land is one that physically impacts it. Examples of “uses” listed in the definition—cutting, excavation, construction, dumping, and parking—represent physical actions occurring on the land. A preliminary plat, which is merely a drawing, does not physically impact the land in a similar manner as does a specific land use applied in this context.
This argument is somewhat shortsighted in that it assumes preliminary plat approval and final plat approval are separate and distinct processes. The initial and essential step in obtaining final plat approval is receiving preliminary plat approval.
This conclusion is consistent with the revocation ordinance. Former PCC 18.50.975 permits revocation of a use, but only when granted pursuant to the Pierce County Zoning Code or Underlying Zoning}
We conclude that a preliminary plat is within the definition of a “use” and that the revocation ordinance granted the hearing examiner authority to revoke a preliminary plat. The Pierce County hearing examiner had the authority to revoke Appellant’s preliminary plat.
Preemption
Our state constitution, article XI, section 11, allows a county, city or town to “make and enforce within its limits all such local police, sanitary and other regulations
Preemption arises when the legislature has expressed its intent to preempt the field or that intent is manifest from necessary implication.
In establishing the constitutional invalidity of an ordinance, a heavy burden rests upon the party challenging its constitutionality.
Similar uniformity language was discussed in City of Seattle v. Williams, a case challenging a local traffic law. Williams provides some guidance in interpreting the word “uniform” in the preemption context and applied the concept of uniformity to a given field.
The provisions of this title [Title 46 RCW Motor Vehicles] relating to vehicles shall be applicable and uniform throughout this state and in all incorporated cities and towns and all political subdivisions therein and no local authority shall enact or enforce any law, ordinance, rule or regulation in conflict with the provisions of this title except and unless expressly authorized by law to do so and any laws, ordinances, rules or regulations in conflict with the provisions of this title are hereby declared to be invalid and of no effect. Local authorities may, however, adopt additional vehicle and traffic regulations which are not in conflict with the provisions of this title.
(Emphasis added.)
The provisions of this title relating to the operation of vehicles shall be applicable and uniform upon all persons operating vehicles upon the public highways of this state, except as otherwise specifically provided.
(Emphasis added.)
Without a statutory definition of “uniform,” in interpreting the statutes we employed the dictionary definition of the word, defining it to mean “ ‘marked by lack of variation, diversity,’ ” and “ ‘marked by complete conformity to a rule or pattern or by similarity in salient detail or practice.’ ”
In Williams we concluded that the “uniform” language found in the statutes evidenced the legislature’s intent to create a statutory scheme with the same standards consistently applicable throughout the state. In this respect, the uniformity requirement preempted local legislative bodies from enacting ordinances inconsistent with the standards set out in state traffic laws. Because the challenged ordinance departed from the state DUI standard of .10 percent BAC, we concluded that the ordinance violated the statutory uniformity requirement, but we were “not saying that a municipality may never enact traffic laws for which there
Although Williams provides some guidance on the preemption issue in this case, it is, however, distinguishable. Unlike Williams, this case does not involve an ordinance that varied in detail from standards established by state laws. Relying on Williams, Respondent argues that state platting laws, specifically RCW 58.17.100, requiring only approval or disapproval of a preliminary plat,
Located in the purpose section and having no operative force, the “uniform” language in RCW 58.17.010 serves only as a guide to the intended effect of the operative sections.
Respondent’s uniformity requirement argument is also undercut by the fact that local jurisdictions are solely responsible for preliminary plat and final plat approvals, and may adopt regulations or condition such approvals to mitigate problems caused by a development.
Conflict
We must decide whether there is a conflict between former PCC 18.50.975, allowing revocation of a preliminary plat, and RCW 58.17.140, providing that a final plat meeting all requirements of the chapter shall be submitted for approval within five years of the preliminary
Respondent interprets RCW 58.17.140 to unconditionally allow it five years following preliminary plat approval to comply with conditions and requirements. It asserts the legislature chose this policy to bring preliminary plats within the arena of vested rights to instill certainty of the rules governing land development. Its vested right, Respondent contends, may be extinguished only upon a finding that the final plat as submitted does not conform to preliminary plat conditions or operative development regulations, and that revocation of the preliminary plat before five years has expired violates its vested right.
Respondent misconstrues RCW 58.17.140. Its contention assumes that the provision grants it an unqualified right to develop its property without limitation for five years after preliminary plat approval. RCW 58.17.140 does not support such an assumption. The provision sets a time limit for preliminary plats.
Respondent also misunderstands the concept of vested rights in the preliminary plat review and approval context. Its argument assumes that the doctrine confers without limitations or conditions a right to develop the land for five years after preliminary plat approval. The vesting doctrine has generally been applied in the preliminary plat context merely to confer the right to have an application for preliminary plat considered under ordinances and laws in effect at the time a completed application is filed.
Subdivision of land is both a local and statewide concern. State platting laws expressly charge local governments with the duty to ensure that the public interest is best served by approval of preliminary plats and final plats.
Decision by Hearing Examiner
When reviewing a superior court’s decision on a land use petition, we review the record of the administrative tribu
Respondent contends the hearing examiner’s decision was erroneous because he did not consider whether Respondent could satisfy the requirements for final plat approval within the statutory time period of five years, and that less drastic remedial methods than revocation were available to enforce the violated or unfulfilled conditions. It argues that despite its removal of trees in the preservation area and on the steep slopes, the hearing examiner committed error by not determining whether removal of those trees jeopardized the public interest by negatively impacting the stability of the slope.
Respondent, however, cannot satisfy the requirements for final plat approval because it cannot meet the conditions of preliminary plat approval, which specifically prohibited removal of trees and vegetation in specified areas. The conditions imposed contemplated the public safety and welfare. It is clear from the record that Respondent knowingly and deliberately violated conditions of preliminary plat approval which cannot be remedied. Respondent can never comply with the specified conditions of the plat approval because, among other reasons, the removed white oak trees cannot be restored to their original state. Monetary fines and remediation methods cannot correct the violations committed by Respondent. Revocation was the only proper remedy.
At issue in this case is the revocation of a preliminary plat under former Pierce County Code (PCC) 18.50.970 and 18.50.975. Respondent contends the Pierce County hearing examiner exceeded his authority in revoking its preliminary plat because the local revocation ordinance, allowing revocation of any site plan permit or approval, permit, use, or activity, did not include preliminary plats.
Site plans, permits, and activities do not come within the definition of a preliminary plat (a drawing of the proposed subdivision showing the general layout of streets and alleys, lots, and blocks). The definition of use under the ordinance, however, includes subdivisions. Because preliminary plat approval initiates the subdivision process, approval of a preliminary plat for a subdivision is a “use.” The ordinance therefore granted the hearing examiner authority to revoke a preliminary plat.
Respondent contends that state platting laws, chapter 58.17 RCW, preempted enactment of any ordinance allowing revocation of preliminary plats. It erroneously relies on City of Seattle v. Williams, 128 Wn.2d 341, to support its argument that the language in RCW 58.17.010, calling for land to be divided in a uniform manner, evidences the intent of the legislature to preempt the field. Williams is distinguishable. Legislative intent is clear from the provisions at issue in that case, but not clear from the provision at issue in this case.
Respondent’s uniformity requirement argument is also undercut by the fact that local jurisdictions are solely responsible for preliminary plat and final plat approvals, and may adopt regulations or conditions for those approvals. This court in Isla Verde International Holdings, Inc. v. City of Camas, 146 Wn.2d 740, and the Court of Appeals in Norco Construction, Inc. v. King County, 29 Wn. App. 179, have acknowledged the authority of local governments to supplement state platting laws for the public health, safety, and welfare. Under this authority the revocation ordinance,
Respondent claims there is a conflict between the revocation ordinance and RCW 58.17.140, which provides that a final plat meeting all requirements of the chapter shall be submitted for approval within five years of preliminary plat approval. Respondent misinterprets this provision as granting it an unqualified right to develop its property without limitation for five years after preliminary plat approval. The provision does nothing more than set a time limit for preliminary plats. No direct conflict exists because RCW 58.17.140 is silent on revocation.
The hearing examiner correctly decided revocation was the only remedy in this case because Respondent can never satisfy the conditions for final plat approval and conditions of preliminary plat approval. Respondent knowingly and deliberately violated conditions of preliminary plat approval which cannot be remedied. This particularly involved violation of prohibitions against removal of irreplaceable trees and vegetation in specified areas. Monetary fines and remediation methods cannot correct the violations committed by Respondent because the trees removed from the Oregon White Oak Preservation Area can never be restored to their original state.
We determine that the Pierce County hearing examiner had authority to revoke Respondent’s preliminary plat under former PCC 18.50.975; that state platting laws do not preempt Pierce County from enacting the challenged revocation ordinance; that the revocation ordinance did not conflict with state platting laws; and that the hearing examiner correctly decided revocation was the only remedy.
Alexander, C.J., Ireland, Chambers, and Owens, JJ., and Becker, J. Pro Tem., concur.
Justice Charles Z. Smith is serving as a justice pro tempore of the Supreme Court pursuant to Const, art. IV, § 2(a).
Fox Ridge Investments filed the preliminary plat and site plan application. Respondent HJS Development, Inc., is the property owner. Both entities are the same party Respondent on this appeal.
Under RCW 58.17.033(2), “[t]he requirements for a folly completed application shall be defined by local ordinance.” Appellant acknowledges Respondent filed a complete application for plat approval.
Clerk’s Papers at 37. The Gig Harbor Peninsula Development Regulations, which regulated development of all property on the Gig Harbor Peninsula in unincorporated Pierce County, former chapter 18.50 of the Pierce County Code, required proposed plats to be processed with a site plan in the Rural-Residential Environment.
Id.
Id. at 181.
In 1989 the Pierce County Council amended the comprehensive plan and the Gig Harbor Peninsula Development Regulations and adopted the Rural-Residential Environment of the Gig Harbor Peninsula Comprehensive Plan which included essentially all of Fox Island.
The Pierce County Comprehensive Plan became effective on January 1, 1995.
Clerk’s Papers at 37.
Id. at 249-50 (emphasis added).
Id. at 140, 198. Former PCC 21.14.030(c)(2), “Geologically Hazardous Areas” Ordinance states: “The development proposal may be approved, approved with conditions or denied based [upon] the Department’s evaluation of the ability of the proposed mitigation measures to reduce risks associated with the erosion and landslide hazard area.”
Id. (citing Admin. R. at 819).
Id.
Id. (citing Admin. R. at 822-23).
Id. (citing Admin. R. at 826-28). Appellant’s brief cites the report in stating “Selective clearing is considered to be acceptable with the 50 foot BSBL [building setback and buffer line] for the purpose of creating lawns and landscaped areas. Selective clearing is defined herein to mean the removal of small trees, bushes and other low-lying vegetation and the removal of dead, diseased or dangerous trees. No trees greater than 36 inches in diameter at breast height (dbh) occurring within the BSBL or upon adjacent steep slopes shall be removed with the exception of dead, diseased or dangerous trees.”
Id. at 198.
See id. (noting former PCC 21.14.030(c)(2) “Geologically Hazardous Areas” and former PCC 21.20.080.D “Critical Areas and Natural Resource Land Authority and Purpose”).
Id.
Id. at 201.
Id.
Id. at 202 (emphasis added).
Id.
Id.
Id. at 203-04.
Id. at 204.
Id. at 175.
Id. at 175-76.
Id. at 174-95.
Verbatim Report of Proceedings (VRP) of Recorded Hearing Before Hearing Examiner Stephen K. Causseaux, Jr. (Feb. 5, 1998) at 3-8.
VRP at 5.
Id.
Id. at 9-18.
Id.
Clerk’s Papers at 174-95. The hearing examiner’s decision adopted all of the MDNS mitigated measures as conditions of approval.
VRP (Oct. 4, 2000) at 6.
Id.; Clerk’s Papers at 208.
Clerk’s Papers at 208.
VRP (Oct. 4, 2000) at 6.
Id. at 128.
Id. at 18, App. C.
Clerk’s Papers at 208.
Id.
See Title 18(h) PCC and ch. 76.09 RCW.
Clerk’s Papers at 208. Two Fox Island residents also filed a petition for revocation of the preliminary plat.
See VRP (Oct. 4, 2000).
Clerk’s Papers at 209.
Id.
Id. at 212.
Id. at 231.
id.
Id. at 64.
PCC 1.22.130 authorizes the examiner to “take such further action as is deemed proper”; Rule 1.11 of the Rules of Procedure for Hearings authorizes reopening of a hearing “for good cause shown” or in the “interest of justice.”
Clerk’s Papers at 70.
Id. at 4.
Id. at 79-124.
VRP (June 7, 2001).
The court did not address the moratorium issue. VRP (June 7, 2001) at 25-28.
VRP (June 7, 2001) at 104-06.
Id. at 106.
Id. at 109.
Notice of Appeal to Washington State Supreme Court, No. 71430-4 (Aug. 7, 2001).
Order Granting Review (July 1, 2002).
See ROW 36.70C.030 which provides specific exceptions; Chelan County v. Nykreim, 146 Wn.2d 904, 916-17, 52 P.3d 1 (2002).
See Citizens to Preserve Pioneer Park v. City of Mercer Island, 106 Wn. App. 461, 470, 24 P.3d 1079 (2001); RCW 36.700.130(1), .020(1).
RCW 36.700.130(1).
Citizens, 106 Wn. App. at 470.
King County v. Wash. State Boundary Review Bd., 122 Wn.2d 648, 672, 860 P.2d 1024 (1993) (quoting Sherman v. Moloney, 106 Wn.2d 873, 881, 725 P.2d 966 (1986); Farm Supply Distribs., Inc. v. Wash. Utils. & Transp. Comm’n, 83 Wn.2d 446, 448, 518 P.2d 1237 (1974); Schmitt v. Cape George Sewer Dist. No. 1, 61 Wn. App. 1, 4, 809 P.2d 217 (1991)).
See City of Univ. Place v. McGuire, 144 Wn.2d 640, 647, 30 P.3d 453 (2001); Girton v. City of Seattle, 97 Wn. App. 360, 363, 983 P.2d 1135 (1999) (citing Boundary Review Bd., 122 Wn.2d at 672; Hilltop Terrace Homeowner’s Ass’n v. Island County, 126 Wn.2d 22, 29, 891 P.2d 29 (1995)).
See RCW 58.17.010; Norco Constr., Inc. v. King County, 29 Wn. App. 179, 180, 627 P.2d 988 (1981).
See RCW 58.17.030, .070.
RCW 58.17.020(4).
RCW 58.17.100; Norco Constr., Inc., 29 Wn. App. at 180-81.
See RCW 58.17.100; PCC 16.08.020.
PCC 16.08.020.
Norco Constr., Inc., 29 Wn. App. at 181.
It is well established that if a case can be decided on nonconstitutional grounds, an appellate court should decline to consider the constitutional issues. See Isla Verde Int’l Holdings, Inc. v. City of Camas, 146 Wn.2d 740, 752, 49 P.3d 867 (2002); State v. Speaks, 119 Wn.2d 204, 207, 829 P.2d 1096 (1992).
Former PCC 18.50.970 and 18.50.975 (emphasis added). Standards for revocation established in the ordinance, former PCC 18.50.995, stated in part:
Such revocation or modification shall be made on any one or more of the following grounds:
D. That the permit or variance granted is being, or recently has been, exercised contrary to the terms or conditions of such approval, or in violation of any Statute, Resolution, Code, Law or Regulation;
E. That the use for which the approval was granted was so exercised as to be detrimental to the public health or safety, or so as to constitute a nuisance.
See Burley Lagoon Improvement Ass’n v. Pierce County, 38 Wn. App. 534, 540, 686 P.2d 503 (1984). In the city of Seattle, site plan permits are master use permits (MUPs) employed to streamline the regulatory review process. MUPs include a number of regulatory components such as environmental impact review, comprehensive plan review, and other use inquiries. See, e.g., Erickson & Assocs. v. McLerran, 123 Wn.2d 864, 872 P.2d 1090 (1994). In the revocation hearing, the Pierce County Planning and Land Services Department requested the hearing examiner to consider revocation of the site plan for violations of the plat’s conditions of approval. Clerk’s Papers at 36.
Br. of Resp’t (citing former PCC 18.50.960) (emphasis added).
Clerk’s Papers at 231.
Brister v. Council of Tacoma, 27 Wn. App. 474, 476, 619 P.2d 982 (1980) (treating site plan and plat approval as separate processes). Although neither party defines “site plan,” it is unlikely to be confused with “binding site plan.” As defined by statute, a “binding site plan” is an alternative method in dividing land and exempted from the platting requirements of chapter 58.17 RCW. It is similar to a preliminary plat in that it requires a drawing to scale to subdivide land, but it is applicable in only three types of land uses: (1) commercially or industrially zoned property; (2) mobile home or travel trailer sites; and (3) condominium development. This case, involving single-family dwellings in a rural-residential zone, does not come within this definition.
Lejeune v. Clallam County, 64 Wn. App. 257, 270, 823 P.2d 1144 (1992).
See McTavish v. N. Woodridge Crest Ass’n, 89 Wn. App. 561, 565, 949 P.2d 837 (1998); Brister, 27 Wn. App. at 476.
World Wide Video, Inc. v. City of Tukwila, 117 Wn.2d 382, 392, 816 P.2d 18 (1991), cert. denied, 503 U.S. 986 (1992).
Heinsma v. City of Vancouver, 144 Wn.2d 556, 563, 29 P.3d 709 (2001).
State v. Villarreal, 97 Wn. App. 636, 641, 642, 984 P.2d 1064 (1999); McTavish, 89 Wn. App. at 565.
Burley Lagoon Improvement Ass’n, 38 Wn. App. at 536-37 (citing N. Pac. Coast Freight Bureau v. State, 12 Wn.2d 563, 122 P.2d 467 (1942)).
Burley Lagoon Improvement Ass’n, 38 Wn. App. at 537 (citing State ex rel. Spokane United Rys. v. Dep’t of Pub. Servs., 191 Wash. 595, 71 P.2d 661 (1937)).
Burley Lagoon Improvement Ass’n, 38 Wn. App. at 538.
Former PCC 18.50.145A.2.
Respondent contends “permits” under the code does not refer to or make mention of preliminary plats. Instead the code specifies “use permits” for “conditional use,” “unclassified use,” and “nonconforming use” of the property and “building permits” and “site development permits” for development of the property, citing former PCC 18.203.050, 18.10.221.010, 18.10.610(1), (N), .630(0, (D), .680(B), .700(A)(1), .145U.2; PCC 17A.10.070.
King County v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wn.2d 543, 554,14 P.3d 133 (2000) (“ ‘preventing interference with agricultural activities by nearby non-agrieultural land uses’ ”).
See former PCC 18.203.050, 18.10.221.010, 18.10.610(1), (N), .630(0, (D), .680(B), .700(A)(1), .145U.2; PCC 17A.10.070.
Former PCC 18.50.145U.1, .145D.3.
See id.
Id. Ordinarily, the word “or” does not mean “and” unless there is clear legislative intent to the contrary. See State v. Tiffany, 44 Wash. 602, 87 P. 932 (1906). Statutory phrases separated by the word “and” generally should be construed in the conjunctive. See 1A Norman J. Singer, Statutes and Statutory Construction § 21:14, at 179-81 (6th ed. 2002).
Former PCC 18.50.145D.3.
See id.
See, e.g., Cent. Puget Sound Growth Mgmt. Hearings Bd., 142 Wn.2d at 550; Citizens for Mount Vernon v. City of Mount Vernon, 133 Wn.2d 861, 947 P.2d 1208 (1997); Christianson v. Snohomish Health Dist., 133 Wn.2d 647, 946 P.2d 768 (1997).
Br. of Resp’t at 24.
See ROW 58.17.140, .150, .160, .170.
See ROW 58.17.170.
6 Wash. State Bar Ass’n, Real Property Deskbook § 89.5(2) (1996).
See Loveless v. Yantis, 82 Wn.2d 754, 763, 513 P.2d 1023 (1973) (a preliminary plat approval constitutes a major action significantly affecting the environment, necessitating an environmental impact statement).
See RCW 58.17.170.
Former PCC 18.50.975.
Clerk’s Papers at 36; former PCC 18.50.180, .185.
Developments or uses permitted outright; (B) Development or uses permitted after administrative review and approval of a site plan by the Planning Department; and (C) Development or uses permitted after review and approval of a site plan by the Examiner after at least one public hearing.” Former PCC 18.50.185.
Former PCC 18.50.185(C)(1) stated in part:
1. Any use or activity which requires a public hearing or public meeting.... In the event any use or activity requires approval over and beyond the requirements of this Regulation and the Examiner has the authority to review the matter under the other Regulations or Code, the Examiner may consider the separate applications concurrently .... This Section shall be applicable, but not necessarily limited to, subdivisions ....
Const. art. XI, § 11.
See Rabon v. City of Seattle, 135 Wn.2d 278, 287, 957 P.2d 621 (1998); Brown v. City of Yakima, 116 Wn.2d 556, 559, 807 P.2d 353 (1991).
Lenci v. City of Seattle, 63 Wn.2d 664, 667-69, 388 P.2d 926 (1964) (citing In re Habeas Corpus of Iverson, 199 Cal. 582, 250 P. 681 (1926)).
Rabon, 135 Wn.2d at 289; Brown, 116 Wn.2d at 560.
Brown, 116 Wn.2d at 560; Lend, 63 Wn.2d at 669-70.
Lend, 63 Wn.2d at 667-68 (citing Letterman v. City of Tacoma, 53 Wn.2d 294, 333 P.2d 650 (1958)).
Id. at 668 (citing Winkenwerder v. City of Yakima, 52 Wn.2d 617, 328 P.2d 873 (1958)).
Former PCC 18.50.975.
See VRP (June 7, 2001) at 104.
RCW 58.17.010 (emphasis added).
City of Seattle v. Williams, 128 Wn.2d 341, 359-60, 908 P.2d 359 (1995).
Id. at 347-48.
Williams, 128 Wn.2d at 349-50 (quoting Webster’s Third New International Dictionary 2498 (3d ed. 1986)).
Id. at 363 (Talmadge, J., dissenting).
Id. at 353.
See RCW 58.17.100.
Br. of Resp’t at 27.
See Oliver v. Harborview Med. Ctr., 94 Wn.2d 559, 565, 618 P.2d 76 (1980).
Trimen Dev. Co. v. King County, 124 Wn.2d 261, 270, 877 P.2d 187 (1994); Rabon, 135 Wn.2d at 291.
See RCW 58.17.100, .110. See also Isla Verde Int'l Holdings, Inc. v. City of Camas, 146 Wn.2d 740, 763, 49 P.3d 867 (2002) (“[L]ocal governments have the authority to adopt regulations or to withhold plat approval if appropriate provisions have not been made ....”); Norco Constr., Inc. v. King County, 29 Wn. App. 179, 180, 627 P.2d 988 (1981).
Isla Verde Int'l Holdings, 146 Wn.2d 740; Norco Constr., Inc., 29 Wn. App. 179.
Former PCC 18.50.995.
See RCW 58.17.100, .110 (allowing enactment of regulations for the public health, safety, and general welfare).
Lend, 63 Wn.2d at 670.
Heinsma, 144 Wn.2d at 564 (quoting Brown, 116 Wn.2d at 561).
Id.
Rabon, 135 Wn.2d at 292 (citing Trimen Dev. Co., 124 Wn.2d at 269; City of Bellingham v. Schampera, 57 Wn.2d 106, 110-11, 356 P.2d 292 (1960)).
Br. of Resp’t at 31, 32.
See RCW 58.17.140.
id.
Friends of the Law v. King County, 123 Wn.2d 518, 522, 869 P.2d 1056 (1994); RCW 58.17.030.
See RCW 58.17.100, .110.
See RCW 58.17.110.
Boundary Review Bd., 122 Wn.2d at 672.
See McGuire, 144 Wn.2d at 647; Girton, 97 Wn. App. at 363 (citing Boundary Review Bd., 122 Wn.2d at 672; Hilltop Terrace Homeowner’s Ass’n, 126 Wn.2d at 29).
Clerk’s Papers at 212-13.