William E. Buchan, Inc., App/cross-resp v. The City Of Sammamish, Resps/cross-apps

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
)
WILLIAM E. BUCHAN, INC., a ) No. 75467-0-1
Washington corporation, )
) DIVISION ONE
Appellant/Cross- )
Respondent, )
)
v. )
)
THE CITY OF SAMMAMISH, a ) UNPUBLISHED
Washington municipal corporation; )
CHESTNUT ESTATES NEIGHBORS: ) FILED: December 26, 2017
TOM and CHRISTIE MALCHOW,a )
marital community; BRENT and RHEA )
ASLIN, a marital community; SUNIL and )
MINA MISTRY, a marital community; )
AJAY and USHA KISHINCHANDANI, a )
marital community; THOMAS and )
GEETHA PETERSON, a marital )
community; VIJAY GAJJALA and )
DARSHIN1JOIS, a marital community; )
JERAME and KATIE THURIK, a marital )
community; WALTER T. PEREYRA, an )
individual; and FRIENDS OF PINE )
LAKE, a Washington nonprofit )
corporation, )
)
Respondents/Cross- )
Appellants, )
)
Cox, J. — At issue in this Land Use Petition Act("LUPA") appeal is
whether the hearing examiner's decision is either "an erroneous interpretation of
the law" or a "clearly erroneous application of the law to the facts."' The hearing
RCW 36.70C.130.
No. 75467-0-1/2
examiner for the City of Sammamish denied the application of William E. Buchan
Inc.("Buchan") to alter the recorded Plat of Chestnut Estates. The denial was
based on provisions of the City's Development Code. The superior court
reversed this part of the hearing examiner's decision and affirmed the rest.
Because we conclude that the hearing examiner's denial of the application to
alter the recorded Plat of Chestnut Estates was correct, we reverse the court's
order to this extent. Because the remaining parts of the hearing examiner's
decision are moot, we vacate the remaining parts of the superior court's order.
In 1997, Buchan and a partner proposed a subdivision on the Sammamish
Plateau that was approved as Chestnut Estates ("CE"). Ebright Creek runs
through a ravine along the western side of this platted subdivision. The creek is
home to various anadromous salmonid species.
Adjacent to the west side of the ravine lies "Tract K," which is designated
as "open space" in the recorded Plat of CE. The face of this plat further
describes this open space, stating that "TRACT K IS AN OPEN SPACE TRACT
AND IS HEREBY RETAINED BY WILLIAM BUCHAN HOMES INC., A
WASHINGTON CORPORATION ALONG WITH ALL MAINTENACE
RESPONSIBILITIES."2 It is undisputed that Track K was so designated because
of clustering of CE lots.
In 2011, Buchan met with City staff to discuss a proposed development,
Chestnut Estates West("CEW"). CEW was to be built on a broad finger ridge
along the western edge of the Sammamish Plateau. Its eastern edge would drop
2 Clerk's Papers at 4640.
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No. 75467-0-1/3
steeply into Ebright Creek ravine, west of CE. The area is zoned R-1, which
entails certain requirements that we discuss later in this opinion.
Buchan filed a preliminary plat application for this proposed subdivision on
December 9, 2011. Because the proposed CEW plat would be landlocked,
Buchan proposed moving the location of Tract K of the recorded Plat of CE and
enlarging the open space. Doing so would provide access over a proposed
bridge to be constructed across the Ebright Creek ravine. In short, approval of
the preliminary plat of CEW could not proceed without moving the location of
Track K by amending the recorded Plat of CE.
City staff issued a report, recommending approval of the preliminary plat
for CEW,subject to conditions. An extensive public comment period followed.
Throughout the preliminary review process, interested parties, including two
tribes, the Kokanee Salmon Work Group, and the state Department of Fish and
Wildlife expressed concerns about potential impacts on Ebright and Pine Lake
creeks, and associated wildlife there.
The staff also recommended approval, subject to conditions, of the
alteration of Tract K of the CE plat.
There were various administrative appeals filed over the City's approvals.
The appellants included Chestnut Estates Neighbors ("Neighbors"), Friends of
Pine Lake ("Friends"), Walter T. Pereyra, and Buchan.
The hearing examiner concluded that the alteration of the recorded Plat of
CE could not be approved. This was based on his conclusion that the
Sammamish Municipal Code prohibited moving Tract K of the CE plat. The
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No. 75467-0-1/4
examiner further concluded that the preliminary plat of CEW could not be
approved because the alteration of the recorded Plat of CE could not be
approved.
Buchan timely commenced this LUPA proceeding in superior court, asking
the court to reverse the hearing examiner's denials of its two applications.
The superior court reversed the portion of the hearing examiner's decision
denying the application to alter the Plat of CE to allow movement of Tract K,
affirmed the remainder of the decision, and remanded for further proceedings.
Buchan appeals. Friends, Neighbors, Pereyra and the City cross appeal.
PLAT ALTERATION OF CE
Friends, Neighbors, Pereyra, and the City argue that the hearing examiner
correctly decided that alteration of the recorded Plat of CE that was intended to
move Tract K of that plat could not be approved under the Sammamish Municipal
Code. We agree.
We may grant relief under LUPA only if the party seeking relief establishes
that one of the standards under RCW 36.70C.130(1) has been met. The
standards at issue here are whether:
(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;
(d) The land use decision is a clearly erroneous application
of the law to the facts;
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No. 75467-0-1/5
We review the land use decision itself and the administrative record
underlying it, not the superior court decision.3
We interpret local ordinances under the same principles as we would
statutes.4 We interpret an unambiguous ordinance by its plain meaning.5 Our
task in interpreting an ordinance is to determine the legislative intent, based on
"the reasonable expectation and purpose... of the ordinary person who sits in
the municipal legislative body and enacts law for the welfare of the general
public."6 We accord deference to the hearing examiner's expertise, including in
the construction of local statutes that the hearing examiner is entrusted to apply.7
A developer is entitled to have its application processed under the law in
effect when filed.5 Thus, we rely on the law in effect at the time Buchan filed his
application.
The starting point for our analysis is RCW 58.17.215, which governs
alteration of subdivisions. That state statute provides:
When any person is interested in the alteration of any subdivision
or the altering of any portion thereof, except as provided in RCW
3 RCW 36.70C.130(1).
4 Sleasman v. City of Lacey, 159 Wash. 2d 639, 643, 151 P.3d 990 (2007).
5 Milestone Homes, Inc. v. City of Bonney Lake, 145 Wash. App. 118, 126,
186 P.3d 357(2008).
Id. at 126-27 (quoting 8 EUGENE MCQUILLIN,THE LAW OF MUNICIPAL
6
CORPORATIONS § 25.71 at 224).
7 Lanzce G. Douglass, Inc. v. City of Spokane Valley, 154 Wash. App. 408,
415,225 P.3d 448 (2010).
8 Erickson & Associates, Inc. v. McLerran, 123 Wash. 2d 864, 867-68, 872
P.2d 1090(1994).
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No. 75467-0-1/6
58.17.040(6), that person shall submit an application to request the
alteration to the legislative authority of the city, town, or county
where the subdivision is located.
The legislative body shall determine the public use and interest in
the proposed alteration and may deny or approve the application
for alteration.
[9]
Because Buchan has vested rights, its proposal to alter the CE plat must
be considered under this law, which was in effect in 2011. The plain words of
this state statute permit the City "to determine the public use and interest in the
proposed alteration" and decide whether to approve or deny the application. This
decision is permissive, as illustrated by the use of the word "may" in the statute.
Based on this authority, the City's statutes on alteration of final plats, SMC
19A.16.070(1) and (3) provide:
(1) Alterations shall be processed in accordance with
RCW 58.17.215 through 58.17.218 and shall comply with the
regulations in effect at the time the alteration application is
submitted. ...
(3) The application may be approved if the proposed
alteration is consistent with the required findings of
SMC 20.10.200 and 20.10.220.
SMC 20.10.200 provides:
When the examiner renders a decision or recommendation, he or
she shall make and enter findings of fact and conclusionsfrom
the record that support the decision, said findings and conclusions
shall set forth and demonstrate the manner in which the
decision or recommendation is consistent with, carries out, and
helps implement applicable state laws and regulations and the
9(Emphasis added.)
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No. 75467-0-1/7
regulations, policies, objectives, and goals of the interim
comprehensive plan, the development code, and other official
laws, policies, and objectives of the City of Sammamish, and that
the recommendation or decision will not be unreasonably
incompatible with or detrimental to affected properties and the
general public.[10]
These provisions make clear that an application for the proposed
alteration of a final plat may only be approved if the proposal is "consistent with"
the hearing examiner's required findings and conclusions. Importantly, the
hearing examiner must conclude whether the proposal is consistent with "the
[City's] development code," Title 21A.
That development code, specifically SMC 21A.25.030(A)(13), provides:
All subdivisions and short subdivisions in the R-1 zone shall be
required to be clustered away from critical areas or the axis of
designated corridors such as urban separators or the wildlife
habitat network to the extent possible and a permanent open
space tract that includes at least 50 percent of the site shall be
created. Open space tracts shall meet the provisions of
SMC 21A.30.030.1111
SMC 21A.30.030(1), within the portion of the development code just
referenced, states:
Any open space resulting from lot clustering should be located
where existing stands of native vegetation exist and shall not be
altered or disturbed except as specified on recorded
documents creating the open space. Such open spaces may be
retained under ownership by the subdivider, conveyed to residents
of the development, or conveyed to a third party. When access to
the open space is provided, the access shall be located in a
separate tract.
10(Emphasis added.)
11 (Emphasis added.)
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No. 75467-0-1/8
The issue is whether these provisions of the development code permit the
approval of the proposed plat alteration, including the proposal to move and
expand Tract K. We conclude that they do not.
It is undisputed that Tract K is designated an open space on the face of
the recorded Plat of CE. Likewise, it is undisputed that this open space
designation was required as a result of the clustering of lots in that plat.
Significantly, nothing on the face of that recorded plat refers to any use of Tract
K, either then or in the future, other than open space.
SMC 21A.25.030(A)(13) imposes two specific conditions on open space
tracts. First, such tracts shall be "permanent." Second, they "shall meet the
provisions of SMC 21A.30.30."
There can be no reasonable debate over the meaning of the word
"permanent" when applied to Tract K. The proposal is to move and expand this
open space. That is directly at odds with the plain words of this statute.
Whether the proposal complies with the provisions of SMC 21A.30.30 is
the other question. We conclude that it does not.
The question is whether this "open space" would be either "altered or
disturbed" by the proposal. That the open space would be "disturbed" by the
proposal is beyond question. Accordingly, we believe that the hearing examiner
was correct, although we reach that conclusion on different grounds than his.
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No. 75467-0-1/9
We may affirm on any basis supported by the record whether or not the
argument was made below.12
The SMC does not define the word "disturbed." So, we look to a
dictionary to determine a meaning to apply under the circumstances of this case.
The American Heritage Dictionary defines disturb as "[t]o break up or destroy the
tranquillity [sic] or settled state of" a thing.13 Moving Tract K would destroy its
settled state as an open tract at its current size and location.
The remaining question is whether this proposed disturbance of the open
space falls into the exception stated in the statute. Specifically, does anything
"specified on[the face of the Plat of CE]creating the open space" permit this
disturbance.14 Plainly, nothing does. Accordingly, the Sammamish Municipal
Code does not permit the alteration of the recorded Plat of CE that Buchan
proposed.
Buchan makes a number of arguments why the hearing examiner's
decision is incorrect. We are not persuaded by any of them.
Buchan argues that the Sammamish Municipal Code cannot restrict the
broad permission of RCW 58.17.215 that authorizes alteration of plats so long as
12 First Bank of Lincoln v. Tuschoff, 193 Wash. App. 413, 422, 375 P.3d 687
(2016).
13 THE AMERICAN HERITAGE DICTIONARY 542 (3rd ed. 1992).
14 SMC 21A.30.030(1)(emphasis added).
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No. 75467-0-1/10
the alteration is in the public interest. It relies on City of Seattle v. Crispin15 for
this argument. That reliance is misplaced.
There, the supreme court held that the reconfiguration of boundaries of a
tax lot did not result in any new lots.16 Thus, the tax lot at issue in that case was
exempt from municipal assessments under a state statute, regardless of
boundary changes of the lot---whether minor or substantial---under city law. This
ruling involved the exemption from the subdivision statutes of RCW
58.17.040(6).17 An earlier appellate decision had held that this exemption did not
apply to changes that resulted in increased development.
In Mason v. King County, this court considered and rejected the same
argument that Buchan makes here.19 There, the county argued that the supreme
court in Crispin held that local land use restrictions may not be applied to
preclude approval of a boundary line adjustment that was exempt from the
requirements of RCW 58.17.19 This court rejected that argument, concluding that
neither that case nor any other authority cited to the court construed RCW 58.17
to require approval of a lot that failed to meet the requirements of local law.29
That principle applies with equal force here.
15 149 Wash. 2d 896, 71 P.3d 208 (2003).
16 Id. at 904-05.
17 Id. at 902.
18 134 Wash. App. 806, 811-12, 142 P.3d 637(2006).
19 Id.
29 Id. at 813.
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No. 75467-0-1/11
We also note that nothing in the language of ROW 58.17.215 that Buchan
has called to our attention bars application of the provisions of the Sammamish
Municipal Code that we previously discussed in this case. Accordingly, we
assume Buchan has not found any such language.
Buchan also cites SMC 19A.16.070 and contends that it does not restrict
what aspect of a recorded plat may be altered. This is true, as far as it goes. But
this argument misses the point. As we have already discussed, provisions of the
City's development code do restrict when and under what circumstances open
space in a recorded plat may be altered. Accepting Buchan's argument would
require that we turn a blind eye to the controlling provisions of the development
code. We decline to do so.
Buchan next argues that the Sammamish Municipal Code distinguishes
regulations that set forth procedures for plat alterations from regulations
restricting what it calls "physical land alterations." And he relatedly argues that
the hearing examiner mixed and matched these distinct regulations to reach his
decision. These arguments too are unpersuasive.
Buchan bases its argument on the definition of "alteration" in SMC
21A.15.056. It uses this definition to challenge the reading of SMC
21A.30.030(1) of the development code to bar movement of Tract K, open space
in the recorded Plat of CE. We need not decide whether this statute bars
movement of designated open space on the basis that it constitutes an
"alteration" under the SMC. That is because it plainly is a "disturbance" as that
word is commonly understood.
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No. 75467-0-1/12
Buchan also argues that affirmance of the hearing examiner's denial of the
alteration to the recorded Plat of CE "would prohibit a city or hearing examiner
from approving a plat alteration which would unquestionably enhance open
space... without any consideration whether the proposed 'alteration' results in a
net benefit to the public health, safety, and welfare."21 We are not persuaded by
this argument.
It fails to deal with the plain words of the statutes we discussed earlier in
this opinion. These statutes bar the request to move Tract K.
In any event, the City's choice to require the permanent dedication of open
space, subject to the restrictive conditions imposed here, is not illogical. That the
City chose to protect open space under these rigorous conditions based on the
underlying rationale for designation of Tract K is well within proper legislative
judgments that the City was entitled to make.
In sum, we conclude that the hearing examiner neither erroneously
interpreted the law nor clearly and erroneously applied the law to the facts.22
PRELIMINARY PLAT APPROVAL OF CEW
A question remains whether the preliminary plat of CEW should have
been approved. The hearing examiner decided that it could not be approved
because of the denial of the plat alteration of CE. We agree.
21 Clerk's Papers at 6507.
22 RCW 36.700.130.
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No. 75467-0-1/13
The briefing of the parties does not seriously dispute that approval of the
preliminary plat is necessarily dependent on the plat alteration of CE.
Accordingly, there is no need for us to discuss this further.
MOOT QUESTIONS
In his decision, the hearing examiner correctly decided that the CEW
preliminary plat could not be approved because the CE plat could not be altered
to move Tract K and that the remaining issues were moot.23 Nevertheless, he
chose to address many further issues about the proposed plat.
On LUPA review, the superior court affirmed this portion of the hearing
examiner's decision and remanded the matter.
Because the issues other than those we have decided in this opinion are
moot, we decline to reach them. Accordingly, we vacate that portion of the
superior court's order affirming the hearing examiner's decision in this respect.
We reverse the Order on Appeal of Land Use Petition to the extent that it
reverses the hearing examiner's denial of the alteration of the recorded Plat of
Chestnut Estates. We vacate, as moot, the remaining part of the superior court's
order.
WE CONCUR:
"c(1
23 Decision at 34.
,
13