Friends Of North Kelsey v. City Of Monroe

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
FRIENDS OF NORTH KELSEY, NO. 68463-9-1
-- -4 c:
Appellant, DIVISION ONE
v.
o
CITY OF MONROE, a municipal **• ^?''
corporation,
Respondent,
WAL-MART STORES, INC., UNPUBLISHED OPINION
Intervenor-Respondent. FILED: May 20, 2013
Lau, J. —Wal-Mart Stores, Inc. proposes to build a new Wal-Mart Supercenter in
Monroe's North Kelsey planning area. Friends of North Kelsey (FONK) opposes Wal-
Mart's proposal, claiming that (1) it violates the North Kelsey Development Plan's (plan)
goals and objectives, (2) it fails to comply with the Development Plan's Design
Guidelines (guidelines), and (3) it fails to qualify as a "planned action" under the State
Environmental Policy Act of 1971 (SEPA). FONK appeals the city council's decision to
approve the proposal under the Land Use Petition Act (LUPA), chapter 36.70C RCW.
FONK (1) fails to demonstrate that the city council misinterpreted the plan or guidelines,
(2) waives its challenge to most of the city council's findings and substantial evidence
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nevertheless supports the findings, and (3) with one narrow exception, demonstrates no
clear error in the city council's application of the law to the facts. Because the record
shows no evidence and no findings to support the city council's approval decision on the
lighting and linear seating guidelines, we remand for further proceedings consistent with
this opinion and otherwise affirm the decision in all respects.
FACTS
The North Kelsey planning area, zoned "general commercial," consists of
approximately 100 acres of land in the city of Monroe ("City"). In 2003, the City adopted
the plan, which contains development standards applicable in the North Kelsey planning
area. The plan governs 55 acres of land within the North Kelsey planning area,
including the "North Kelsey north area" (north of North Kelsey Street) and the "North
Kelsey south area" (south of North Kelsey Street). The two areas combined constitute
the North Kelsey planned development area. The City adopted a planned action final
supplemental environmental impact statement (FSEIS) for the North Kelsey area in
2004 and amended the plan in 2007. The amended plan's goals and objectives include
a "pedestrian-friendly center that serves as a community focus, provides public open
space and amenities, and accommodates a broad range of commercial and civic
activities." The plan also contains the guidelines, which address site configuration, site
planning, circulation, architectural design, landscaping, signage, and lighting.
In 2010, the Monroe City Council agreed to sell 24 acres in the North Kelsey
planned development area to North Kelsey LLC. The purchase and sale agreement
required North Kelsey LLC to submit to the city council "a conceptual site plan for a
retail shopping center or individual building ... in accordance with the North Kelsey
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Area Development Plan and North Kelsey Development Plan Supplemental
Development Agreement Provisions adopted by the Monroe City Council Resolution
2005/009."
In January 2011, PACLAND, on behalf of North Kelsey LLC and Wal-Mart Stores
Inc., applied for a binding site plan and grading permit to develop the property. The
applications specified that the development would be a Wal-Mart Supercenter. Wal-
Mart proposed to develop approximately 17 acres on the northern part of the North
Kelsey planned development area. The proposal included a 151,000 square foot Wal-
Mart store with an additional 13,000 square foot outdoor home and garden center.
Around the same time, the City and North Kelsey LLC negotiated a development
agreement under RCW 36.70B.170 to establish development terms and site vesting.1
PACLAND also submitted a conceptual site plan and conceptual building elevations.
These documents were presented to the city council for a public hearing and final
decision.
Prior to the city council hearing, the City's community development director and
SEPA-responsible official prepared a detailed City staff report analyzing Wal-Mart's
development proposal under the plan and guidelines. The report concluded that the
project satisfied all applicable development standards and recommended that the city
council approve Wal-Mart's proposal. The City's SEPA-responsible official also
1 RCW 36.70B. 170(1) allows a local governmentto enter into a development
agreement with a person having ownership or control of real property within its
jurisdiction. A development agreement "*must set forth the development standards and
other provisions that shall apply to and govern and vest the development, use, and
mitigation of the development of the real property for the duration specified in the
agreement."
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determined that the project constituted a "planned action" under WAC 197-11-172 and
city of Monroe Ordinance No. 0003/2004. This action resulted in a determination that
Wal-Mart's proposal satisfied applicable FSEIS conditions and mitigation measures and
adequately addressed the project's probable significant environmental impacts.
In mid-March 2011, the city council held a public hearing on the development
agreement and consolidated applications. City staff and Wal-Mart presented opening
statements, and citizens commented on the proposal. The city council continued the
hearing until late March and agreed to consider additional written comments.
Wal-Mart voluntarily proposed "revisions to the conceptual site plan and an
alternative project design that respond to some of the public comment related to design
and compatibility with the North Kelsey Development Plan." While Wal-Mart claimed its
original site plan fully complied with the plan and guidelines, it proposed changes to
include adding a second sidewalk and gathering space with benches near the North
Kelsey Street entrance; installing more landscaping along the south perimeter of the
storm pond; changing the entry vestibule roofs to gables; changing the building
materials to include brick veneer, cultured stone, and metal panel; and adding raised
landscape planters.
Wal-Mart responded to the public comments and proposed alternative designs
for enhanced landscaping, pedestrian features, and building features. City staff also
responded to the citizen testimony and submitted additional documents supporting its
recommendation. The city council approved the development agreement, conceptual
site plan, binding site plan, and grading permit. The city council's approval included
several additional conditions requiring additional pedestrian features and landscaping.
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The city council later adopted resolution 2011/009 formally approving Wal-Mart's
conceptual site plan, development agreement, binding site plan, and grading permit.
This resolution set forth the city council's findings and conclusions and also
incorporated by reference comprehensive findings and conclusions in staff reports and
memorandums and the development agreement. The city council also determined that
Wal-Mart's proposal qualified as a planned action under North Kelsey's FSEIS. The city
council denied two reconsideration motions and issued a final notice of decision.
FONK filed a land use petition with the superior court under LUPA. Wal-Mart
intervened in the action.2 The trial court denied FONK's land use petition, ruling (1) the
city council properly interpreted and applied the plan and guidelines to Wal-Mart's
proposal, (2) substantial evidence supported the land use decision, (3) the land use
decision was not an erroneous interpretation of the law or a clearly erroneous
application of the law to the facts, and (4) the city council properly determined that the
project qualified as a planned action under SEPA. The court concluded, "[FONK] has
not satisfied its burden of demonstrating that the challenged land use decision meets
one or more of the standards for relief set forth at RCW 36.70C.130." FONK appeals.
ANALYSIS
Standard of Review
LUPA is the exclusive means of obtaining judicial review of land use decisions,
with certain exceptions not applicable here. Friends of Cedar Park Neighborhood v.
Citv of Seattle, 156 Wn. App. 633, 640, 234 P.3d 214 (2010). We review the decision of
2The respondents initially named in the petition were the City, North Kelsey LLC,
PACLAND, and several third party respondents. In this opinion, we refer to Wal-Mart
and the City collectively as "respondents."
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the "local jurisdiction's body or officer with the highest level of authority to make the
determination, including those with authority to hear appeals." RCW 36.70C.020(2).
Thus, when reviewing a LUPA decision, we stand in the shoes of the superior court,
reviewing the ruling below on the administrative record. HJS Dev.. Inc. v. Pierce County
ex rel. Dep't of Planning & Land Servs.. 148 Wn.2d 451, 468, 61 P.3d 1141 (2003).
Here, we review the city council's decision approving Wal-Mart's proposal. Under
LUPA, we "may affirm or reverse the land use decision under review or remand it for
modification or further proceedings." RCW 36.70C.140.
Under LUPA, a court may grant relief only if the party seeking relief has carried
the burden of establishing that one of the standards set forth in RCW 36.70C. 130(1) is
met. FONK cites four standards in its appellate brief:
"(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;
"(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...."
Appellant's Br. at 10 (quoting RCW 36.70C. 130(1)). "RCW 36.70C. 130(1) 'reflects a
clear legislative intention that this court give substantial deference to both legal and
factual determinations of local jurisdictions with expertise in land use regulation.'" Citv
of Medina v. T-Mobile USA. Inc.. 123 Wn. App. 19, 24, 95 P.3d 377 (2004).
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Subsections (a) and (b) are questions of law that we review de novo.3 Phoenix
Dev.. Inc. v. Citv of Woodinville. 171 Wn.2d 820, 828, 256 P.3d 1150 (2011). Under
subsection (b), however, "we accord deference to the City Council's expertise while
reviewing de novo claims that the City Council erred in interpreting its own ordinance."
Chinn v. Citv of Spokane. Wn. App. , 293 P.3d 401, 403-04 (2013). We thus
give deference to the city council's construction of local land use regulations based on
its specialized knowledge and expertise.4 Citv of Fed. Way v. Town &Country Real
Estate. LLC. 161 Wn. App. 17, 37, 252 P.3d 382 (2011).
"When reviewing a challenge to the sufficiency of the evidence under subsection
(c), we view facts and inferences in a light most favorable to the party that prevailed in
the highest forum exercising fact-finding authority"— in this case, the City and Wal-Mart.
Phoenix Dev., 171 Wn.2d at 828-29. This process "'necessarily entails acceptance of
the factfinder's views regarding the credibility of witnesses and the weight to be given
3FONK does not argue that the city council engaged in unlawful procedures or
failed to follow a prescribed process. Subsection (a) is thus not at issue in this appeal.
4 FONK argues, "The Court will accord deference to an agency's interpretation of
its own regulations only when the regulation is ambiguous." Appellant's Reply Br. at 7-
8. This rule is true for non-LUPA cases. See Green v. Dep't of Soc. & Health Servs.,
163 Wn. App. 494, 508, 260 P.3d 254 (2011) (addressing de novo standard under the
Administrative Procedures Act). But whether the same rule applies in LUPA cases is
subject to some debate. See McTavish v. Citv of Bellevue, 89 Wn. App. 561, 565, 949
P.2d 837 (1998) (declining to construe unambiguous language, but noting "we have
considered the expertise of the director and the hearing examiner" in deciding the issue
de novo); Town & Country, 161 Wn. App. at 37 (we review challenges under RCW
36.70C.130(1)(b) de novo but only after allowing for such deference as is due the
construction of a law by a local jurisdiction with expertise); Phoenix Dev., 171 Wn.2d at
837 (deferring to city's construction of its own comprehensive plan; no discussion of
ambiguity); Chinn, 293 P.3d at 404-07 (deferring to city's construction of city code even
after determining plain language of code supported city's interpretation). We need not
resolve this conflict given our discussion below.
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reasonable but competing inferences.'" Citv of Univ. Place v. McGuire, 144 Wn.2d 640,
652, 30 P.3d 453 (2001) (quoting State ex rel. Lige & Wm. B. Dickson Co. v. County of
Pierce, 65 Wn. App. 614, 618, 829 P.2d 217 (1992)). Under the substantial evidence
standard, there must be sufficient evidence to "persuade a reasonable person that the
declared premise is true." Phoenix Dev.. 171 Wn.2d at 829. We do not weigh the
evidence or substitute our judgment for the reviewing official's judgment. Phoenix Dev.,
171 Wn.2dat832.
Under subsection (d), the application of the law to the facts is clearly erroneous—
and thus reversible—only if we are left with a definite and firm conviction that a mistake
has been committed. Phoenix Dev., 171 Wn.2d at 829; Milestone Homes, Inc. v. Citv of
Bonnev Lake. 145 Wn. App. 118, 126, 186 P.3d 357 (2008).
Findings of Fact
As a preliminary matter, page 4 of FONK's opening brief contains one sentence
assigning error "to the findings and conclusions adopted by the Monroe City Council as
they are set forth in [Clerk's Papers] CP 725-737 and CP 2609-2611, including but not
limited to those findings and conclusions that are quoted in this brief in Section IV.C."
Appellant's Br. at 4. In Section IV.C, FONK mentions or quotes only some of the city
council's findings. See Appellant's Br. at 9-47. FONK explicitly challenges sufficiency
of the evidence for only one of the findings it mentions or quotes. See Appellant's Br. at
36 ("Further, the above finding that the supporting documents to the binding site and
conceptual site plan show a focal open space along North Kelsey Street is not
supported by substantial evidence."). For the remaining findings, FONK merely quotes
the finding and summarily argues that the city council's conclusion was clearly
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erroneous. FONK also argues that the lack of findings on certain issues makes the
conclusion clearly erroneous.
Respondents argue that FONK's inadequate factual challenges constitute verities
on appeal. See United Dev. Corp. v. Citv of Mill Creek, 106 Wn. App. 681, 688, 26 P.3d
943 (2001) (local land use decision maker's unchallenged findings of fact are verities on
appeal). We agree, except for the challenged finding quoted above.5 We decline to
address FONK's sufficiency of the evidence claims, except as noted on grounds
discussed above. "RAP 10.3 requires appellant to present argument to the reviewing
court as to why specific findings of fact are in error and to support those arguments with
citation to relevant portions of the record." In re Disciplinary Proceedings Against
Whitney, 155 Wn.2d 451, 466, 120 P.3d 550 (2005); see also RAP 10.3(g) ("A separate
assignment of error for each finding of fact a party contends was improperly made must
be included with reference to the finding by number."). When challenges to findings of
fact are insufficiently briefed, we decline to address those challenges and consider the
findings verities on appeal. Whitney, 155 Wn.2d at 467; United Dev., 106Wn. App. at
688. See also Valley View Indus. Park v. Citv of Redmond, 107 Wn.2d 621, 630, 733
P.2d 182 (1987) (city assigned error to 21 of the trial court's findings of fact, but its
opening brief mentioned only two of the findings to which it assigned error; court held,
5And even for that finding, FONK failed to specifically challenge it in an
assignment of error as discussed above. We question whether quoting the finding and
challenging sufficiency of the evidence for that finding in the analysis portion of the brief
is sufficient. RAP 10.3(g) indicates such argument is insufficient: "A separate
assignment of error for each finding of fact a party contends was improperly made must
be included with reference to the finding by number." (Emphasis added.)
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"Such discussion is inadequate for all except the two mentioned findings. A party
abandons assignments of error to findings of fact if it fails to argue them in its brief.")
(emphasis added); Seattle Sen. Dist. No. 1 of King County v. State. 90 Wn.2d 476, 488,
585 P.2d 71 (1978) ("Appellants have assigned error to 9 of 698 findings of fact. Except
for number 172 and 446 no other finding is again referred to in appellants' brief by
identifiable number or otherwise. Three other findings are mentioned without actual
argument in the reply brief. Since there is no further argument, discussion or reference
to these findings, we deem them abandoned."). (Emphasis added.)
We discuss below FONK's properly challenged finding for substantial evidence.
Citv Code Interpretation
FONK's main arguments claim that the city council misinterpreted its own city
code. Specifically, FONK claims that the guidelines' use of the term "should" means a
particular guideline is mandatory with only limited exceptions and that the city council
"erred repeatedly . . . when it interpreted 'should' throughout its decision as completely
discretionary despite the code language saying otherwise." Appellant's Br. at 15.
'"It is a well established rule of statutory construction that considerable judicial
deference should be given to the construction of an ordinance by those officials charged
with its enforcement.'" Citizens for a Safe Neighborhood v. Citv of Seattle. 67 Wn. App.
436, 440, 836 P.2d 235 (1992) (quoting Mall. Inc. v. Seattle, 108 Wn.2d 369, 377, 739
P.2d 668 (1987)); see also Gen. Motors Corp. v. Citv of Seattle, 107 Wn. App. 42, 57,
25 P.3d 1022 (2001). As noted above, "we accord deference to the City Council's
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expertise while reviewing de novo claims that the City Council erred in interpreting its
own ordinance." Chinn, 293 P.3d at 403-04.
To determine whether the city council misinterpreted its development regulations,
we follow general principles of statutory construction. Citv of Gig Harbor v. N. Pac.
Design. Inc.. 149 Wn. App. 159, 167,201 P.3d 1096(2009). "We look first to the plain
language of the provisions at issue; and we strive to read them harmoniously to give
effect to all, avoiding an incongruous reading potentially nullifying other provisions."
Chinn. 293 P.3d at 404. "Where one provision treats a subject in general terms and
another treats the same subject in a more detailed way, the specific prevails over the
general absent a contrary legislative intent." Chinn. 293 P.3d at 404.
The North Kelsey design guidelines state:
The application of these design guidelines will be a critical regulatory tool in
implementing the community's design-related goals and objectives for the North
Kelsey Planning Area and the North Kelsey Planned Development Area.
The guidelines also state:
The Citv retains full authority to determine whether or not a proposal meets these
guidelines. Within the guidelines, certain words are used to indicate the relative
importance and priority the City places upon the particular guideline. The words
"shall," "must," and "is/are required" mean that the development proposal must
comply with the guideline unless the Citv finds that:
• The guideline or requirement is not applicable or appropriate in the
particular instance, or
• The development proposal meets the intent of the guidelines in some
other manner.
The word "should" means that the development proposal will comply with the
guideline unless the Citv finds that:
• The guideline or requirement is not applicable or appropriate in the
particular instance,
• The development proposal meets the intent of the guidelines in some
other manner, or
• There is a compelling reason to the contrary.
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The project proponent may submit proposals that he/she feels meet the intent of
the guidelines but not necessarily the specifics of one or more guidelines. In this
case, the Citv will determine if the intent of the guideline has been met.
(Emphasis added.)
Here, one city council conclusion in resolution 2011/009 addressed construction
ofthe term "should" in the design guidelines. The city council's "blanket statement,"6
quoted below, concluded that Wal-Mart's proposal either met the plan's mandatory
guidelines or fell within an exception to the mandatory "should" language:
The City Council specifically notes that the North Kelsey Design Guidelines were
intended to be interpreted and applied with flexibility. Where the term "should" is
used in the Design Guidelines as a compliance standard with respect to
particular guidelines or requirements, the City Council concludes that [Wal-
Mart's] proposal satisfies these guidelines and requirements. The Citv Council
further concludes that even if [Wal-Mart'sl proposal did not satisfy these
guidelines and reguirements. application of these guidelines and reguirements is
either inapplicable or inappropriate in this instance or on this portion of the North
Kelsey Planning Area and/or that [Wal-Mart'sl proposal meets the intent of the
Design Guidelines in some other manner.
(Emphasis added.)
The guideline language at issue here is unambiguous. It expressly provides that
guidelines using the term "should" are mandatory unless the city council finds that one
of the enumerated exceptions applies. FONK reads the guidelines' disputed language
as absolutely mandatory rather than discretionary. It also mischaracterizes how the city
council addressed this issue. By providing exceptions to the mandatory provisions and
explicitly allowing applicants to submit proposals that meet the guidelines' intent but not
necessarily their specific directives, the guidelines on their face vest the city council with
discretion to find that a particular guideline need not be met. This discretionary
6 For accuracy, we use FONK's reference to the disputed resolution provision as
a "blanket statement." Appellant's Br. at 16 n.4.
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language clearly indicates the guidelines were intended to be flexible. FONK claims
that the city council "concluded that the word 'should' in a Design Guideline means that
the Design Guideline is entirely optional and can be disregarded by the City Council if it
so chooses" and erroneously "interpreted 'should' throughout its decision as completely
discretionary despite the code language saying otherwise." Appellant's Reply Br. at 6;
Appellant's Br. at 15. Nothing in the guidelines' plain text or the record supports this
claim. As quoted above, the city council concluded that Wal-Mart's proposal either (1)
met the mandatory guidelines or (2) fell within one or more exceptions to the mandatory
guidelines.
FONK essentially challenges resolution 2011/009's language underscored
above, which concluded that where Wal-Mart's proposal failed to meet specific
guidelines, the guidelines were inapplicable or Wal-Mart met the intent in some other
manner. It argues, "The [City] Council cannot simply make this blanket statement with
no indication of which specific guidelines they are referring to, and with no identification
of evidence in the record to support the conclusion. This is a blatant attempt to
disregard the requirements of the Plan without any analysis or evidence to support that
decision." Appellant's Br. at 16 n.4. On two narrow guideline categories only—lighting
fixture height and linear feet of seating—the record shows no evidence or finding to
support the city council's conclusion as discussed under the "Public Open Space"
heading.
FONK also suggests that additional administrative findings are necessary in
addition to a finding that one of the exceptions to the mandatory guidelines applies. For
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example, even if the city council clearly indicates that Wal-Mart met the intent of a
particular set of guidelines, FONK argues that it must further explain that finding. FONK
cites no authority for this argument. See State v. Logan. 102 Wn. App. 907, 911, 10
P.3d 504 (2000) ('"Where no authorities are cited in support of a proposition, the court is
not required to search out authorities, but may assume that counsel, after diligent
search, has found none.'") (quoting DeHeer v. Seattle Post-Intelligencer. 60 Wn.2d 122,
126, 372 P.2d 193 (1962)). Nothing in the guidelines requires the city council to enter
further findings supporting its alternative determination that an exception to the
guidelines exists. The only required findings were met where the city council clearly
indicated that Wal-Mart met the guidelines' intent (or another exception applied). See
Tugwell v. Kittitas County. 90 Wn. App. 1, 14-15,951 P.2d 272 (1997) (land use
decisions will not be remanded for more complete findings where "[njothing would be
accomplished, other than further delay;" court rejected claim that findings were "so
incomplete that they prevent meaningful judicial review" where board of county
commissioners' findings "impliedly but clearly resolved the issues involved"); Citizens
Alliance To Protect Our Wetlands v. Citv of Auburn, 126 Wn.2d 356, 369, 894 P.2d
1300 (1995) (rejecting challenge to hearing examiner's findings where examiner's ruling
contained "substantial analysis of every issue. Because a reviewing court can
determine the basis for her decision, the hearing examiner's findings are sufficient.").
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Development Plan Goals7
Chapter 1, section C of the development plan sets forth six goals. Each goal
includes a list of corresponding objectives. After considering each of the six goals, the
city council concluded, "The proposed binding site plan, supporting documents, and
conceptual site plan meet the Goals and Objectives of the North Kelsey Development
Plan." FONK argues that this conclusion was clearly erroneous. While FONK
acknowledges, "The use proposed by Wal-Mart was consistent with the [North Kelsey
Development] Plan," it argues that "the design and layout of the proposal were
inconsistent with the Plan." Appellant's Br. at 2. FONK specifically claims that Wal-
Mart's proposal is inconsistent with goals 2, 4, and 5.
Goal 2
Goal 2 is to "Create a focal point as a community gathering spot." Specific
objectives associated with goal 2 are:
Create a plaza open space to accommodate at least 1,000 people for special
community events; Design the plaza open space to be adoptable to a variety of
events and uses; Design the plaza open space to be safe and welcoming, casual
and comfortable; Include a modest water feature within the plaza open space.
The city council found with respect to goal 2:
Findings: The Development Plan indicates that the "Village Green" and "Focus
Plaza" areas will be located on the southern site of North Kelsey. As part of the
7We note that FONK cites no authority requiring the city council to make findings
or conclusions regarding the plan's goals. FONK also cites no authority requiring land
use proposals to comply with the goals and objectives or even to address them. The
plan's "Goals and Objectives" appear to be broad, general goals relating to
development of the North Kelsey planning area as a whole. In contrast, the plan's
guidelines—set forth in another section of the plan—impose specific requirements that
developers must address in their proposals. We address the guidelines in the relevant
section below. Nevertheless, we analyze the challenged goals and objectives here for
completeness.
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binding site plan, the project proponent intends to dedicate a corner pedestrian
feature to the city of Monroe for public use. (Exhibits 2a, 2b, 3, and 4a)
FONK acknowledges, and the city council concluded, that the plaza
contemplated in goal 2 will be located "on the southern site of North Kelsey." FONK
nevertheless contends that the Wal-Mart site (the northern parcel of the North Kelsey
planning area) "plays a key role in furthering [Goal 2]." Appellant's Br. at 18. FONK
argues that Wal-Mart's proposal to develop the northern parcel violates goal 2 because
it lacks sufficient connectivity with the southern site and does not foster a campus-like
character. Appellant's Br. at 18-20. In support of this claim, FONK cites to various
design guidelines as well as the plan's "Development Concept,"8 which is located in a
different chapter. But goal 2 mentions neither pedestrian connections nor a campus-like
character. FONK fails to cite any binding requirement imposed by goal 2 that Wal-
Mart's proposal violates. Goal 2 merely encourages a "plaza open space" to be located
on another site in the North Kelsey planning area. Even assuming FONK's unsupported
claim that "[t]he Goals and Objectives, the Development Concept, and the Design
Guidelines are all inextricably interconnected," FONK cites to provisions addressing
connectivity between the north and south parcels and development of the north parcel.
Appellant's Reply Br. at 17. Even if Wal-Mart's proposal violates those provisions,
8 The development concept is chapter 3 of the plan. It is intended to translate the
North Kelsey area's planning objectives into physical design principles. The
Development Concept contains several illustrations depicting the plan's objectives.
These figures are intended to provide examples, not binding requirements. See Clerk's
Papers (CP) at 314 ("Development concept"): CP at 315 ("Proposed cross-section of
the east/west connector road"); CP at 317 ("Hypothetical development plan") (emphasis
added).
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FONK fails to show that this failure would affect goal 2—which is merely to "Create a
focal point as a community gathering spot" on the south parcel.9
Goal 4
Goal 4 is to "Create a strong identity for the development." Specific objectives
associated with goal 4 are:
Encourage site and architectural design that is unique and appropriate for
Monroe; Encourage architectural design that combines traditional and modern
elements; Emphasize landscaping and greenery throughout the development to
create a park-like setting; Encourage architectural design that is understated and
subtle; Employ local artists, where possible, in the design of public spaces and
the streetscape.
Regarding goal 4, the city council found:
Findings: The conceptual elevations (Exhibit 4b) emphasize fagade modulation,
variation in materials, and variation in color, among other desirable architectural
design elements. The supporting documents to the binding site plan (Exhibit 2b)
and conceptual site plan (Exhibit 4a) include detailed landscape drawings that
show landscaping along the site's perimeter, throughout the parking area, and
around the stormwater detention area.
FONK contends, "The Wal-Mart will dominate the area's identity with a formulaic,
typical superstore Wal-Mart aesthetic." Appellant's Br. at 20-21. It claims the city
council "ignor[ed] the massing and orientation of the building" and also argues that
"[p]aint colors and vestibules on top of a massive Wal-Mart structure do not create a
9Regardless, the city council found Wal-Mart's proposal consistent with all ofthe
plan's goals based on "pedestrian connections throughout the site as well as
connections to the southern site," "a plaza area adjacent to the main entrance that will
include specialty paving, public seating, and landscaping," and the corner pedestrian
feature dedicated to public use. As discussed below in the design guidelines analysis,
those unchallenged findings are supported by substantial evidence. FONK's complaints
regarding the size, appearance, and orientation of the various features in Wal-Mart's
proposal go to weight of the evidence. As noted above, we do not weigh the evidence
or substitute our judgment for the reviewing official's judgment. Phoenix Dev., 171
Wn.2dat832.
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strong identity for this area." Appellant's Br. at 21. However, goal 4 mentions neither
orientation nor massing10 and, by its terms, provides only "encouragement" regarding
architectural design and landscaping, not binding regulatory standards. The City's staff
report and the city council concluded that Wal-Mart's original site plan proposal met
goal 4 by incorporating numerous architectural and landscaping features. Substantial
evidence supports the findings. The revised site plan, as modified and conditioned by
the city council, further enhances the project's consistency with goal 4. The building
design incorporates textures, elements, materials, and colors that correlate to the local
aesthetic and includes design elements such as gabled roofs, multiple paned windows,
awnings, canopies, brick and cultured stone veneers, timber-like elements, architectural
blocks, and pedestrian-scale lighting. The design also incorporates multiple pedestrian
connections; a plaza area with specialty paving, public seating, and landscaping; and
parking areas screened by landscaping. FONK's complaints regarding the size,
appearance, and orientation of the various features in Wal-Mart's proposal go to the
weight of the evidence. As noted above, we do not weigh the evidence or substitute our
judgment for the reviewing official's judgment. Phoenix Dev., 171 Wn.2d at 832. FONK
fails to show clear error in the city council's determination that Wal-Mart's proposal met
goal 4.
Goal 5
Goal 5 is to "[e]ncourage pedestrian-friendly development." Specific objectives
include:
10 Nothing in the plan prohibits large buildings. The plan specifically
contemplates and allows "big-box" retail uses that otherwise comply with the
development guidelines.
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Provide safe, efficient, and attractive pedestrian connections between uses
throughout the development area and to uses surrounding the site; Encourage
small-scale businesses such as cafes and specialty shops; Encourage building
design that orients to public open space, pathways, and streets; Develop streets
with pedestrian amenities such as wide sidewalks, awnings, street trees and
landscaping, and buildings with display windows; Provide separation of vehicles
and pedestrians, where possible, along arterials; Hide and screen parking areas;
Incorporate safe bicycle access to and throughout site; Encourage large-scale
retail uses to provide multiple entries and minimize blank walls; Provide
pedestrian-oriented plazas and open spaces throughout the development.
Regarding goal 5, the city council found:
Findings: The binding site plan includes pedestrian connections throughout the
site as well as connections to the southern site. Stamped and colored concrete,
common to the greater development, define entryways and connections to the
site. Perimeter landscaping screens the parking areas along Galaxy Way and
North Kelsey Street. The site will include paths, sidewalks, and bike racks to
accommodate pedestrian and bicycle access. The conceptual elevations include
two pedestrian entries into the development. (Exhibits 2a, 2b, 3, and 4a)
Findings: As noted in the findings to Goal 4, the proponent has included a
variety of design elements including multiple features along the front and right
elevation facades. The binding site plan and supporting documents include
informal open spaces between North Kelsey Street and Lot 1 of the proposed
development; a plaza area adjacent to the main entrance that will include
specialty paving, public seating, and landscaping; and a corner pedestrian
feature at Galaxy Way and North Kelsey Street for public use. (Exhibits 2a, 2b,
3, and 4a)
FONK contends, "Wal-Mart's proposal encourages driving to the site and parking
to get to the store." Appellant's Br. at 22. According to FONK, the city council's findings
"miss[] the point entirely with respect to Goal 5. The Council focuses on pathways that
are added as afterthoughts and that are secondary to the primary car-focused site
configuration. . . . The findings ignore that the central method of transportation that is
encouraged by this design is cars, not pedestrians." Appellant's Br. at 23. As noted
above, the city council found that Wal-Mart's proposal included landscaping, both
internally and at the site's perimeter, stamped and colored concrete entryways and
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connections, pedestrian paths and sidewalks, informal open spaces, a plaza area, and
other features consistent with goal 5. Substantial evidence supports these findings.
FONK offers no more than subjective disagreement with the city council's findings and
its own lay opinion that Wal-Mart's design encourages driving rather than walking.
Although FONK dismisses the proposal's pathways and other pedestrian features as
"afterthoughts," it does not—and cannot—deny their incorporation into the challenged
proposal. As noted above, we do not weigh the evidence or substitute our judgment for
the reviewing official's judgment. Phoenix Dev., 171 Wn.2d at 832. FONK fails to show
clear error in the city council's determination that Wal-Mart's proposal met goal 5.
Design Guidelines Compliance
FONK argues that Wal-Mart's proposal violates several of North Kelsey's design
guidelines. The guidelines are divided into several categories, including "Site
Configuration," "Site Planning," "Circulation," "Architectural/Building Design," and
"Landscape Design." The guidelines set forth several general intent statements
applying to all guidelines and specific intent statements within particular categories of
guidelines. The general intent statements applying to all guidelines are as follows:
These guidelines are directed to creating a development within the North Kelsey
planning area that:
• Provides a visible and accessible commercial and civic town focus for the City
of Monroe.
• Enhances downtown circulation for pedestrians and vehicles.
• Connects and integrates other downtown activities.
• Features a spectrum of public open spaces and amenities.
• Includes a mix of commercial, civic, recreational and residential activities.
• Retains opportunities north of North Kelsey Street for a larger activity in a
master-planned setting such as an educational or medical facility or a
corporate campus.
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• Accommodates retail development of various size and character as long as
the development's perceived scale is appropriate for Monroe's small town
character and the design quality is of the highest caliber.
• Enhances the town's identity as a regional attraction.
We address the specific intent statements below. FONK challenges Wal-Mart's
compliance with the guidelines in the "Site Configuration," "Site Planning," and
"Architectural/Building Design" categories. Appellant's Br. at 23, 31, 43.
Site Configuration
The site configuration guidelines require that binding site plans address five
principles. The guidelines specify that project proponents "must demonstrate that the
overall site layout and circulation system accomplishes these goals to the City's
satisfaction." Principles 1 and 2 require that development north of North Kelsey Street
"[c]onnects to [the remainder of the North Kelsey planning area] with an integrated
pedestrian network. . . . Gateway features and safe walking connections must be
provided at these points" and that "[u]ses North of North Kelsey Street should be
compatible and mutually supportive" of the retail, recreational, and civic uses at the core
of the south lot. FONK does not challenge the city council's conclusion that Wal-Mart
adequately addressed these two principles.
Principle 3 provides, "Uses north of North Kelsey Street should be configured
around a central open space or plaza to create a campus-like setting." The city
council's findings on this issue state:
Findings: The Development Plan indicates that the "Village Green" and "Focus
Plaza" areas will be located on the southern site of North Kelsey. The
suggestion of a campus-like setting on the northern portion of the property is a
discretionary and not mandatory element of the North Kelsey Design Guidelines
not applicable to this proposed use.
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Findings: The binding site plan, supporting documents, and conceptual site plan
include significant landscaping around the site's perimeter and adjacent to North
Kelsey Street, a plaza area adjacent to the main entrance to the retail store, and
a corner pedestrian feature. Pathways connect the internal features and public
sidewalks on North Kelsey Street and the Galaxy Way corner feature to the
future development.
Findings: The binding site plan, supporting documents, and conceptual site plan
illustrate that the northern site is organized around a large anchor retail store with
two smaller "out lots" that will provide compatible uses to the proposed anchor,
consistent with Chapter 3, Concept 8. The drawings also show that the main
entrance to the northern site aligns with the southern site to support automobile
and pedestrian access. Internally, the northern site includes pedestrian paths
and walkways to and from the retail store. (Exhibits 2a, 2b, 3, and 4a)
Principle 4 provides for "a public road to the south of the lot that, along with North
Kelsey Street and Chain Lake Road, creates a loop system around the south
parcel. . . . Parking for the facility should be accessed from this loop system and not
intrude into the center of the site [or] detract from the activities or qualities of the
development." The city council's findings on this issue state:
Findings: The binding site plan, supporting documents, and conceptual site plan
show pedestrian connections between the proposed development along Galaxy
Way to the west, North Kelsey Street to the south, and along the public sidewalk
to the east up to Chain Lake Road. The main entrance to the northern site aligns
with the southern site to support automobile and pedestrian access. Internally,
the northern site shows pedestrian paths and walkways to and from the retail
store. (Exhibits 2a, 2b, 3, and 4a)
Finally, principle 5 provides that developments should "[l]ocate[] and treat[] large
buildings to reduce their perceived scale to fit with neighboring structures and present
an inviting, human-scaled, pedestrian oriented character to the public." The city
council's findings on this issue state:
Findings: As noted in findings for Chapter 1, Goal 4 and Chapter 3, Goals 5
and 6, the conceptual drawings emphasize facade modulation, variation in
materials, and variation in color, among other architectural design elements. The
supporting documents to the binding site plan and conceptual site plan include
detailed landscape drawings that show landscaping along the site's perimeter,
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throughout the parking area, and around the stormwater detention area.
(Exhibits 2a, 2b, 3, and 4a)
The city council concluded after addressing all of the principles:
Conclusions: The proposed binding site plan, supporting documents, and
conceptual site plan meet the Site Configuration Principles of the North Kelsey
Development Guidelines by providing interconnectivitv. compatible land uses,
public open spaces, and desirable architectural features and site design
elements. Even where the proposal does not strictly satisfy the specifics of a
particular design guideline, the proposal as a whole complies with the North
Kelsey Design Guidelines when the totality of all proposed features are
considered.
Regarding principle 3, FONK argues that the Wal-Mart store "is not configured
around a central open space or plaza to create a campus-like setting." Appellant's Br.
at 24. FONK challenges the city council's determination that "[t]he suggestion of a
campus-like setting on the northern portion of the property is a discretionary and not
mandatory element of the North Kelsey Design Guidelines not applicable to this
proposed use." As discussed above, the guidelines are discretionary. The city council
may approve proposals that vary from the specific guidelines if it finds them inapplicable
or inappropriate or finds that the proposal meets the guidelines' overall intent. Here, the
city council found the "campus-like setting" guideline "not applicable" to Wal-Mart's
proposed use. FONK disputes this characterization.11 But even if the city council erred
11 FONK claims that the campus-like setting requirement clearly applies to the
north site (where Wal-Mart will be located). The respondents contend, "[T]he mere fact
that the guideline applies to the area where the Wal-Mart store is proposed to be
located does not mean that the City Council does not have the discretion to find that the
guideline is not applicable 'in a particular instance.'" Wal-Mart Br. at 28 (quoting North
Kelsey development plan design guidelines). The respondents' argument is more
convincing. The design guidelines allow the city council to approve deviations from a
guideline if it "is not applicable or appropriate in the particular instance." (Emphasis
added.) This gives the city council considerable discretion to conclude, as it did here,
that a proposal involving construction of a "big-box" retail facility would prevent the
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in stating that the guideline was "not applicable" to Wal-Mart's proposed use, it clearly
concluded that Wal-Mart's proposal met the site configuration guidelines' intent "when
the totality of all proposed features are considered," even if the proposal failed to satisfy
the specifics of particular guidelines. The site configuration guidelines expressly
acknowledge the city council's discretion to make this type of judgment: "The project
proponent must demonstrate that the overall site layout and circulation system
accomplishes these goals to the City's satisfaction." (Emphasis added.) Because the
city council clearly expressed its conclusion in this section, we need not remand for
further clarification on this issue. See Tugwell. 90 Wn. App. at 14-15 (land use
decisions will not be remanded for more complete findings where board of county
commissioners' findings "impliedly but clearly resolved the issues involved" and, thus,
"[n]othing would be accomplished [by remand], other than further delay"); Citizens
Alliance, 126 Wn.2d at 369 (rejecting challenge to hearing examiner's findings where
examiner's ruling contained "substantial analysis of every issue. Because a reviewing
court can determine the basis for her decision, the hearing examiner's findings are
sufficient.").
Regarding principle 4, FONK argues, "It is plainly evident from looking at Wal-
Mart's site plan that the parking areas are intruding into the center of the site and they
detract from the pedestrian activities and qualities of the development." Appellant's Br.
simultaneous preservation of a large central open space on the site. As noted above,
the city council concluded that the proposal as a whole complied with the design
guidelines "when the totality of all proposed features are considered." The site
configuration guidelines expressly acknowledge the city council's discretion to make this
type of judgment: "The project proponent must demonstrate that the overall site layout
and circulation system accomplishes these goals to the City's satisfaction." (Emphasis
added.)
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at 28. FONK also claims the pedestrian crosswalk on North Kelsey Street is "poorly
located."12 Appellant's Br. at 28. We question whether principle 4 applies to the
northern part of the North Kelsey planning area. The language regarding a "loop
system" and requiring parking not to intrude into the center of the site refers to the
southern portion of the North Kelsey planning area. FONK claims that figure 5, which
corresponds to principle 4, "clearly shows that parking is planned to be outside of the
contemplated open space, campus-like area on the north site as well as on the south
site." Appellant's Reply Br. at 23. But figure 5 is titled "Vehicle access and parking
concept." and FONK cites no authority for its argument that such a diagram creates
binding requirements for applicants. (Emphasis added.) Beal for Martinez v. Citv of
Seattle. 134 Wn.2d 769, 777 n.2, 954 P.2d 237 (1998) ("The City cites no authority for
this proposition and, thus, it is not properly before us.") (citing RAP 10.3(a)(5); Schmidt
v. Cornerstone Invs.. Inc.. 115Wn.2d 148, 166, 795 P.2d 1143(1990)).
Even if principle 4 applies to the north site, the city council's findings indicate it
concluded that the proposal was consistent with or met the intent of the site
configuration guidelines. See CP at 174 (noting pedestrian features in response to
Principle 4's requirement that parking not intrude into the center of the site and
concluding, "Even where the proposal does not strictly satisfy the specifics of a
particular design guideline, the proposal as a whole complies with the North Kelsey
12 FONK cites to no language in principle 4 addressing pedestrian crosswalks, so
it is unclear how this argument relates to FONK's other challenges regarding parking.
Regardless, FONK cites to no evidence supporting its conclusory assertion regarding
the pedestrian crosswalk on North Kelsey Street. FONK relies solely on figure 5, which
provides only one "parking concept" as discussed above. (Emphasis added.) And the
city council specifically conditioned its approval of Wal-Mart's proposal on a realignment
of the North Kelsey Street crossing to improve pedestrian safety.
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Design Guidelines when the totality of all proposed features are considered."). The
guidelines clearly give the city council discretion to make this conclusion. FONK fails to
demonstrate clear error.
Regarding principle 5, FONK argues that the Wal-Mart proposal "does not locate
or treat large buildings to reduce their perceived scale .... Rather, the building is a
typical, formulaic Wal-Mart that will appear enormous and not present an inviting human
scaled, pedestrian oriented character to the public." Appellant's Br. at 29. FONK
essentially faults the city council for not parroting principle 5's language. In response
to principle 5's requirement that applicants "[l]ocate[] and treat[] large buildings to
reduce their perceived scale to fit with neighboring structures and present an inviting,
human scaled, pedestrian oriented character to the public," the city council found that
Wal-Mart's proposal includes facade modulation, variation in materials and color,
landscaping, and other architectural elements. FONK cites no authority for its argument
that "[t]he addition of awnings, canopies, and entry vestibules of lowered height do not
address the massing of the building. Nor do they address the orientation of the
building." Appellant's Br. at 30. FONK cites to no guidelines prohibiting the proposed
Wal-Mart store's size, location, or orientation.13 And FONK's factually unsupported
characterization of the proposed retail building as a "typical, formulaic Wal-Mart" is
insufficient to demonstrate clear error. Appellant's Br. at 29.
13 The North Kelsey development plan explicitly allows "big-box" retail uses in the
northern portion of the North Kelsey planning area "as long as they are sited and
designed to meet other plan objectives." To the extent FONK relies on figure 6 (which
corresponds to principle 5) to argue that the proposed Wal-Mart store's size, location,
and orientation are impermissible, that figure is titled "Ways of reducing the scale of
large buildings" and in no way establishes binding requirements. (Emphasis added.)
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FONK fails to demonstrate clear error in the city council's conclusions regarding
Wal-Mart's compliance with the plan's site configuration guidelines. We affirm the city
council's decision on these issues.
Site Planning
North Kelsey's site planning guidelines address public open space, building
orientation, land uses, parking areas, and street corners/highly visible locations.
FONK's arguments address the public open space, parking areas, and street
corners/highly visible locations categories.
Public Open Space
With respect to public open space, the intent is:
• To provide a variety of open spaces that attract people to the area;
• To provide a focal open space that functions as a community gathering
space;
• To provide a "park-like" character within the Planned Development Area of
the North Kelsey Planning Area;
• To provide an attractive pedestrian environment;
• To provide outdoor spaces for relaxing, eating, socializing, and recreating.
Under the public open space guidelines, FONK specifically challenges the city council's
conclusions regarding certain guidelines for "Pedestrian-Oriented Spaces" and the
"North Building Site."
FONK claims that Wal-Mart failed to meet the following pedestrian-oriented
spaces guidelines:
3. Lighting fixtures should be approximately 10-15 feet above the surface and
may be building mounted. The overall lighting in the plaza should be at least
2-foot candles, without any "dark spots" that could cause security problems.
Ambient light from under canopies or storefronts may be included in the
lighting calculations.
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6. At least one linear foot of seating area (at least 16 inches deep) or one
individual seat per 60 square feet of plaza area or open space should be
included (seating can include benches, low walls, stairs, or ledges).
Regarding the above guidelines, the city council adopted the following staff report
findings and conclusions:
Findings: Chapter 3 of the North Kelsey Design Guidelines proposes
development of the Focal Plaza, Village Green, and Shopping Corridor, and
pedestrian-oriented spaces on the southern site.
Findings: As noted above, the proposed development for the northern site
includes pedestrian amenities, pathways, landscaped areas, public seating,
lighting, focal points, as well as textured and colored concrete in different areas
(Exhibits 2b, 4a, and 4b).
Conclusions: The proposed development of the northern site provides varied
open spaces, attractive pedestrian-oriented spaces, and pedestrian amenities.
The city council also adopted the following findings and conclusions addressing the
requirements of chapter 7 of the design guidelines (signage and lighting):
Findings: The binding site plan, supporting documents, conceptual site plan, and
conceptual elevations include conceptual lighting details. Complete review of
lighting standards will be under a separate permit. (Exhibits 2a, 2b, 4a, and 4b)
Conclusions: The preliminary sign and lighting concept for the northern site is
generally consistent with the sign and lighting criteria for the Planned
Development Area. The citv will address final design modifications at the time of
sign permit and building permit application.
The city council made no specific finding regarding the height of lighting fixtures or the
number of linear feet allocated for seating areas. It also made no specific finding that
Wal-Mart's proposal met the intent of the public open space guidelines despite not
meeting certain specifics in those guidelines.
FONK argues that no evidence in the record supports a conclusion that Wal-Mart
met the guidelines regarding height of lighting fixtures and linear feet of seating and that
these specific guidelines are "not mentioned in the City Council's decision and the
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Council made no findings on this issue." Appellant's Br. at 32. The respondents
counter, "The City's review and approval of lighting fixtures was specifically reserved for
a separate, future permitting process" and claim that "[FONK] cannot meet its burden of
demonstrating clear error by assuming that the City will not apply its own code
requirements at some point in the future." Br. of Respondent City of Monroe at 34; Br.
of Intervenor RespondentWal-Mart Br. at 32.14
The respondents' argument regarding future permitting misses the point. Here,
no evidence and no findings address whether Wal-Mart complied with the specific,
mandatory lighting and seating guidelines. The record evidence indicates that lighting
14 In its statement of additional authorities, Wal-Mart cites Friends of the Law v.
King County. 123 Wn.2d 518, 869 P.2d 1056 (1994) and Topping v. Pierce County Bd.
of Comm'rs. 29 Wn. App. 781, 630 P.2d 1385 (1981) for the proposition that the city
council properly approved Wal-Mart's proposal without either finding that it complied
with the mandatory lighting and seating requirements or imposing specific conditions
requiring such compliance in the future.
These cases are distinguishable. Topping addressed a board of commissioners'
approval of a preliminary plat without evidence showing compliance with a specific
Washington Administrative Code health regulation. Topping. 29 Wn. App. at 782. The
court affirmed, noting that "compliance with specific health regulations applicable to a
completed development is not required for approval of a preliminary plat" and "[m]atters
which are specified by regulation or ordinance need not be considered unless
conditions or infirmities appear or exist which would preclude any possibility of approval
of the plat." Topping, 29 Wn. App. at 783 (emphasis added). In Friends, the city council
approved a preliminary plat application "subject to modifications which will bring it into
compliance with all applicable zoning reguirements." Friends, 123 Wn.2d at 529. The
city council there imposed specific conditions for meeting all zoning requirements, and it
was unchallenged that compliance with the mandated conditions would result in
compliance with all zoning requirements. Friends, 123 Wn.2d at 528. In contrast, here,
the city council imposed no specific conditions regarding future compliance with the
lighting and seating requirements. As the Friends court noted, "[l]t is up to local
governments to decide what level of specificity they will require from a developer in its
initial application . . . ." Friends of the Law, 123 Wn.2d at 528. Here, the plan imposes
specific, mandatory lighting and seating requirements that the city council must review
at the development proposal stage. As discussed above, it failed to adequately do so.
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and seating will be provided but fails to indicate whether the lighting will meet height
requirements or whether the seating will meet ratio requirements. Indeed, our review is
hampered by the absence of any supporting evidence in the record and the absence of
specific findings on the lighting and seating issue. The respondents cite to no authority
permitting the city council to approve the proposal while deferring an essential guideline
requirement for a future date. The city council's resolution contains no explicit
statement conditioning approval on compliance at a later time. The resolution is at least
ambiguous as to whether Wal-Mart must make a further showing—subject to challenge
by groups such as FONK—to secure approval of its proposal.
If the decision by the city council forecloses further review of Wal-Mart's evidence
of compliance with the plan and guidelines, then it has denied FONK any opportunity to
challenge the evidence and the potential noncompliance.15 FONK is entitled to an
express determination of the lighting and seating issue and an opportunity to challenge
it, if warranted, before final approval. See Knight v. Citv of Yelm, 173 Wn.2d 325, 343-
45, 267 P.3d 973 (2011) (addressing a similar situation involving preliminary plat
approval where the city council failed to condition approval on a showing of adequate
water provision at a later date and, thus, removed any burden on the city to make an
adequate showing; court concluded that petitioner was entitled to clarification of city
council's decision). We remand the lighting and seating issue for further proceedings
consistent with this opinion.
15 And as discussed above, the city council's blanket statement that Wal-Mart's
proposal meets the intent—if not the specifics—of the guidelines is inadequate to
overcome this deficiency.
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Regarding the north building site category, FONK claims Wal-Mart failed to meet
the following guidelines:
1. Development of the site north of North Kelsey Street should be organized
around an interconnected set of heavily landscaped open spaces.
2. The north site should include a focal open space that fronts on North Kelsey
Street and is aligned with the Village Green. This open space must be
developed consistent with the Pedestrian-Oriented Spaces guidelines.
The city council adopted the following staff report findings and conclusions regarding
the north building site guidelines:
Findings: The supporting documents to the binding site and conceptual site plan
and conceptual elevations include detailed landscape drawings that show
different types of open space associated with the retail development of the
northern site that includes landscaping along the site's perimeter, throughout the
parking area, and around the stormwater detention area; a plaza area adjacent to
the main entrance to the retail store with pedestrian seating, landscaping, and an
enhanced "hardscape"; and a corner pedestrian feature at Galaxy Way and North
Kelsey Street (Exhibits 2b, 4a, and 4b)
Findings: Chapter 3 of the North Kelsey Design Guidelines proposes
development of the Focal Plaza, Village Green, and Shopping Corridor and
pedestrian-oriented spaces on the southern site.
Findings: As noted above, the proposed development for the northern site
includes pedestrian amenities, pathways, landscaped areas, public seating,
lighting, focal points, as well as textured and colored concrete in different areas
(Exhibits 2b, 4a, and 4b)
Findings: The supporting documents to the binding site and conceptual site plan
show interconnected landscaped open spaces along North Kelsey Street
(Exhibits 2b and 4a)
Findings: The supporting documents to the binding site and conceptual site plan
show a pedestrian corner feature and focal open space along North Kelsey
Street. A large landscaped open space buffers the proposed retail store on Lot 1
and aligns with the Village Green area across the textured and colored walkway.
The sidewalk along North Kelsey Street connects the pedestrian corner features.
Design review of the pedestrian corner feature will be under separate review
(Exhibits 2b, 4a, and 4b)
Findings: The stormwater detention facility at the intersection of North Kelsey
Street and Chain Lake Road for the northern site is buffered and heavily
landscaped (Exhibits 2b, 4a, and 4b)
Conclusions: The proposed development of the northern site provides varied
open spaces, attractive pedestrian-oriented spaces, and pedestrian amenities.
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FONK first claims, "Development of the Wal-Mart site has not been organized
around an interconnected set of heavily landscaped open spaces, nor does the site
include an open space that fronts on North Kelsey Street or aligns with the Focal Plaza
and Village Green." Appellant's Br. at 34. As discussed above, the city council's
findings are verities on appeal except for the one FONK properly challenges here.
FONK properly challenges the finding that the supporting documents to the
binding site and conceptual site plan show a focal open space along North Kelsey
Street. However, substantial evidence, i.e., "evidence that would persuade a fair-
minded person of the truth of the statement asserted," supports that finding. Cingular
Wireless. LLC v. Thurston County. 131 Wn. App. 756, 768, 129 P.3d 300 (2006).
Considering all of the evidence and reasonable inferences in the light most favorable to
the respondents, as we must, the record shows an open landscaped space at the
southern portion of Wal-Mart's proposed site along North Kelsey Street. See CP at 758,
777 (showing landscaped southern portion of property with lawn area and trees
adjacent to North Kelsey Street). Given that the remaining findings are verities on
appeal—and nevertheless supported by substantial record evidence showing the
landscaping, interconnecting sidewalks, and central plaza area in front of the proposed
store—FONK fails to meet its burden of showing clear error in the city council's
decision. FONK's arguments amount to subjective disagreement with the city council's
findings. As noted above, we do not weigh the evidence or substitute our judgment for
the reviewing official's judgment. Phoenix Dev.. 171 Wn.2d at 832.
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Parking Areas
With respect to parking areas, the intent is:
• To provide convenient parking areas that encourage people to leave their cars
and walk throughout the North Kelsey Planning Area.
• To provide more flexibility in the design of the development by relaxing existing
City parking standards.
• To provide parking areas that do not diminish pedestrian and visual qualities of
the site.
• To maintain the built street edge through effective screening of all parking lots.
• To minimize the impact of driveways.
FONK claims that Wal-Mart failed to meet the following associated guidelines:
4. Pathways through parking lots should be provided. Pathways and crosswalks
should be provided along every fourth aisle or at intervals of less than 150 feet.
Pathways through parking areas should be separated from vehicle parking and
travel lanes by use of contrasting surface materials . . ., which may be raised
above the level of the vehicular surface. Parking area pathways should be at
least 4 feet in width.
S1. Pedestrian-scale lighting shall be used to define pedestrian walkways
through parking areas. Weather protection features over such walkways are also
highly desirable (U-Village example)—particularly when such walkway connects
uses within the site.
FONK also points to figure 16 in the guidelines and claims Wal-Mart failed to meet the
following side note included in that figure: "While parking areas should be accessible
and convenient, their design and layout should minimize negative impacts on the
pedestrian environment and visual quality of the development."
Specific to parking areas, the city council adopted the following staff report
findings:
Findings: The proposed parking areas as shown in the binding site plan,
supporting documents, and conceptual site plan conform to the requirements of
Chapter 18.86 MMC (Exhibits 2a, 2b, 3, and 4a)
Findings: The supporting documents to the binding site plan (Exhibit 2b) indicate
that the proponent will construct 687 parking spaces (659 are required for the
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total retail area of 164,781 [square feet] including garden centers based on a
ratio of 1 space per 250 square feet of gross floor area).
Findings: The proposed parking area includes one main driveway off North
Kelsey Street that aligns with the entrance to the southern site and three
driveways off Galaxy Way. The applicant proposes to include pathways through
the main parking lot in three areas connecting to Galaxy Way to the main
entrance and an additional pathway from North Kelsey Street to the main
entrance. The perimeter of all parking areas are landscaped (Exhibits 2a, 2b, 3,
and 4a)
Conclusions: The proposed development and preliminary design concept for the
northern site are consistent with the plan's parking strategy for the Planned
Development Area.
The city council also adopted the staff report's supplemental finding that Wal-Mart's
parking proposal includes "pedestrian-scale lighting within the parking areas adjacent to
defined pathways" and incorporates "parking lot landscaping, patterned concrete
pathways through the parking areas, and patterned and colored concrete at
crosswalks."
The city council also adopted the following staff report findings and conclusions
specifically addressing sidewalks and pathways in the proposed development:
Findings: As previously noted, the binding site plan, supporting documents, and
conceptual site plan show pedestrian connections between the proposed
development along Galaxy Way to the west, North Kelsey Street to the south,
and along the public sidewalk to the east up to Chain Lake Road. (Exhibits 2b
and 4a)
Findings: Proposed sidewalks will be ADA compliant and include landscaped
planting strips. (Exhibits 2b and 4a)
Findings: Proposed sidewalks along North Kelsey Street are eight feet in width
and five feet in width along Galaxy Way. (Exhibits 2a and 2b)
Findings: A secondary pathway, adjacent to the northern site's main entrance,
from North Kelsey Street to the proposed retail store on Lot 1, will be five feet in
width and include street trees. (Exhibits 2b and 4a)
Findings: Internally, the northern site includes pedestrian paths and walkways to
and from the retail store, and throughout the main parking area. (Exhibits 2a, 2b,
and 4a)
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Conclusions: The proposed development plans and preliminary design concept
for the northern site meet the sidewalk and pathway reguirements for the
Planned Development Area.
FONK first contends that Wal-Mart's parking proposal "maximizes negative
impacts on the pedestrian environment and the visual quality of the development," is
"not a pedestrian-oriented plan," and "[p]art of the parking lot is in the location that was
required by the Plan to be open space that is spatially unified and aligned with the south
site Village Green and Focal Plaza." Appellant's Br. at 37-38. FONK fails to support
these subjective statements with any facts or analysis, and we can decline to address
them. See Norcon Builders, LLC v. GMP Homes VG, LLC, 161 Wn. App. 474, 486, 254
P.3d 835 (2011) (declining to consider an inadequately briefed argument). These
statements are also insufficient to demonstrate that Wal-Mart's proposal violates any
binding requirement.
FONK also argues that pathways and crosswalks are not provided along every
fourth parking aisle or at intervals of less than 150 feet, pathways are not separated
from parking and travel lanes by use of contrasting surface materials, and no evidence
in the record shows the width of the pathways through the parking areas. Contrary to
FONK's assertion and consistent with the findings and conclusions quoted above, the
record clearly shows that Wal-Mart's parking proposal includes pedestrian pathways
meeting the "every fourth aisle" requirement. The record also shows that the pedestrian
pathways are separated from vehicle parking and travel lanes by both contrasting
surface materials and landscaping. Finally, the record demonstrates that all pathway
widths will be between 5 and 12 feet wide, depending on location, and pedestrian lights
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are marked along the pathways. FONK fails to demonstrate clear error in the city
council's determination of compliance.
Street Corners/Highly Visible Locations
With respect to street corners/highly visible locations, the development plan's
intent is:
• To enhance the appearance of highly visible locations.
• To enhance the pedestrian environment.
• To establish a design identity for the North Kelsey Planning Area.
FONK claims Wal-Mart failed to meet the following specific guidelines:
The guidelines below highlight desirable design treatments (options noted below)
for six specific street corners and/or highly visible locations as noted in the Site
Development Concept. All proposals for sites should include at least one of the
design treatments described below. EXCEPTION: Applicants may propose
other design treatments for these sites if they can demonstrate successfully that
the proposed treatment meets the intent of the guidelines.
1. Street Corner/Highly Visible Location Design Treatment Methods
(also refer to Pedestrian Orientation guidelines. Chapter 3):
a. Locate a building towards the street corner (within 15 feet of corner
property line). Building facades located here are encouraged to
include a special element, such as a raised roofline, towers, or an
extended parapet, along the most visible views of the structure.
b. Provide a pedestrian walkway and/or plaza space at the corner
leading directly to a building entry or shopping plaza space. . . .
c. Install substantial landscaping (at least 200 square feet of ground
surface area with trees, shrubs, and or ground cover. . . .)
2. Specific sites:
e. North Kelsey Street (at key pedestrian crossing): Method "a" is
preferred for all four corners.
Under this category, the city council adopted the following staff report findings
and conclusions:
Findings: Chapter 3, Section E identifies six highly visible areas and encourages
design treatments at these locations. Two highly visible areas abut the northern
site: Location D and E.
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Findings: Lot 1 is adjacent to Location D. Lot 1 includes a large landscaped
area at Location D.
Findings: Lots 1 and 3 are adjacent to Location E. Lot 1 includes a landscaped
area and pedestrian path at Location E. Lot 3 will include a retail store or
restaurant adjacent to Location E. Design review for future development of Lot 3
will be under a separate permit. (Exhibits 2a, 2b, 3, and 4a).
Conclusions: The proposed development and preliminary design concept for the
northern site include some desirable design elements encouraged for Highly
Visible Locations within the Planned Development Area.
FONK contests only Wal-Mart's treatment of location E (the key pedestrian
crossing from the south site to the north site across North Kelsey Street). See CP at
2010, figure 19. FONK contends, "Wal-Mart is not treating Location E as a highly visible
location" and "none of the design treatments have been adopted by the Wal-Mart
proposal for this Key Pedestrian Crossing." Appellant's Br. at 41. FONK argues that
the Wal-Mart building fails to orient toward the key pedestrian crossing at location E and
the landscaping is inconsistent with the intent of the guidelines because "it acts as a
barrier to the pedestrian environment, not an enhancement" and "is meant to hide a
parking lot that should not be there in the first place . . . ." Appellant's Br. at 41.
However, FONK's essentially subjective, aesthetic complaints are insufficient to
demonstrate clear error. The guidelines provide that site proposals should include "at
least one" of the design treatments listed above, and method "a" (locating a building
near/within 15 feet of the street corner) is merely the preferred treatment for this
location. Other treatments include providing a pedestrian walkway at the corner leading
directly to a building entry or installing substantial landscaping. The record shows that
Wal-Mart's proposal includes a pathway at location E leading to the store entrance, as
well as substantial landscaping and a monument sign. The record thus supports the
city council's findings—and the findings support its conclusion—that Wal-Mart's
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proposal includes elements encouraged for street corners/highly visible areas. FONK's
conclusory opinions regarding the appearance and function of the landscaping are
insufficient to show clear error.
Architectural/Building Design
North Kelsey's architectural/building design guidelines are grouped into three
subcategories. FONK challenges two of these subcategories—architectural concept
and human/pedestrian scale.
Architectural Concept
The first subcategory, "architectural concept," sets forth intent statements,
including:
• To create, through the architectural, landscape, open space, and gateway
elements, an identity unique within the region and that reflects Monroe's small
town character.
• To create an assemblage of buildings within the planned development area
with an intimately scaled (i.e., the buildings appear to be smaller in size,
generally less than 150 feet in length along a facade, even though the
building footprint may be larger) and informal architectural character.
• To create a varied, non-homogenous set of buildings within the planned
development area that give the sense of natural evolution over time rather
than a result of a single, one-step development - and to emphasize the fact
that the building elements can naturally evolve and change over time without
disrupting a constricting design theme.
A supplemental intent statement is "[t]o encourage architecture that evokes a
'Northwest' architectural theme based upon its use of natural local materials and
northwest architectural heritage."
The associated guidelines for the architectural concept subcategory provide:
1. The buildings proposed for the North Kelsey planned development area
should be based on a comprehensive architectural concept that achieves the
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intent statements above. Specifically, the design of the specific buildings should
address:
• Pedestrian interest and comfort along the perimeter of open spaces
and pedestrian connections.
• The size of building massing and elements relative a human body.
• The perceived massing of the building relative to nearby structures,
open spaces, and landscape elements.
• Monroe's architectural and cultural setting.
• The variety of sequential experiences and design characters within the
site.
While the individual design guidelines in this section address some of these
issues specifically, the intent of this guideline is to encourage the designers to
consider how the various aspects of the design work together. Applicants should
be prepared to demonstrate how the proposed buildings respond to the intent
statements. The City will review applicants' proposals and determine whether or
not they meet the intent.
Supplemental guidelines provide, "[A]ll structures should employ exposed timber
elements or a similar feature approved by the City as a unifying architectural feature,"
and that projects "should address all facades visible by the public .... Such facades
should be treated in a manner that is consistent in form and character with the rest of
the building."
Regarding architectural concept, FONK contends that Wal-Mart's proposal "does
not address the size of the building massing elements relative to a human body to the
degree required by [the Development] Plan" and "does not address the perceived
massing of the building." Appellant's Br. at 44, 45. FONK cites to "Figure 6 at CP
327"—which shows a building oriented toward open space and smaller "out-buildings"
on each side—for its argument that Wal-Mart's proposal is inconsistent with the
guidelines. Appellant's Br. at 45.
Under this category, the city council found, "As previously noted, the conceptual
site elevations for the northern site emphasize facade modulation, variation in materials,
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and variation in color, among other desirable architectural design elements and
treatments along the primary, secondary, side, and rear facades." Previous findings
addressing the development concept's "pedestrian friendly" and "intimately scaled"
goals also discuss facade modulation and variation in materials and color. Figure 6,
Clerk's Papers at 327, is titled "Ways of reducing the scale of large buildings" and, thus,
provides one possible way of placing buildings to meet the guidelines. This diagram
provides no support for the argument that such placement is the only way to meet the
guidelines. The record demonstrates that the Wal-Mart building will include significant
articulation, roofline modulation, and facade variation, and it will incorporate numerous
exterior treatments, design features, and landscaping. FONK cites to no authority for its
argument that these features do not address "perceived massing" of the building.
FONK also fails to support its argument that the plan requires more than what Wal-Mart
proposed here. FONK fails to demonstrate clear error in the city council's application of
these guidelines.
Human/Pedestrian Scale
The second subcategory, human/pedestrian scale, sets forth intent statements
including:
• To create an assemblage of buildings with an intimately scaled appearance
and informal architectural character.
• To architecturally treat large buildings to ensure that they do not dominate the
area's identity.
• To provide interesting and sheltering pedestrian-oriented facades.
The associated guidelines address building height and vertical articulation. Relevant to
this appeal, the guidelines state, "[B]uildings with visible facades over 100 feet in
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length ... should be vertically articulated into sections averaging not more than 50 feet
along the facade at regular intervals."
Regarding human/pedestrian scale, FONK argues, "The Wal-Mart building is not
vertically articulated into sections averaging not more than 50 feet along the facade at
regular intervals" as required by the guidelines. Appellant's Br. at 46. The relevant
guideline states that articulation may be accomplished in several ways, including
modulation, building focal points, using significant building elements, changing the
roofline, changing materials, landscaping, or "[u]sing other methods acceptable to the
City." Under this category, the city council found, "The conceptual site elevations show
vertical articulation along the primary, secondary, side, and rear facades including
stepping back portions of the facade including distinctive features, and changing
materials." Substantial evidence supports this finding—each type of articulation is
shown in the building elevation drawings of the proposed Wal-Mart store.
FONK essentially argues that the city council failed to make a specific finding that
the vertical articulation occurs in sections averaging not more than 50 feet. But in that
case, we look for substantial evidence to support such a finding had the trial court made
it. As discussed above, the record shows several methods of vertical articulation along
each facade. While the building elevation diagrams in the record do not specify that
each vertical articulation section averages not more than 50 feet wide, "we view facts
and inferences in a light most favorable to the party that prevailed in the highest forum
exercising fact-finding authority"—in this case the City and Wal-Mart. Phoenix Dev.,
171 Wn.2d at 828-29. Under the substantial evidence standard, there must be sufficient
evidence to "persuade a reasonable person that the declared premise is true." Phoenix
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Dev.. 171 Wn.2d at 829. Reasonable inferences from the existing record show that
Wal-Mart's proposal meets the average vertical articulation requirement.16 We are not
left with a definite and firm conviction that a mistake was committed. FONK thus fails to
show clear error in the city council's approval of the proposed store on this basis.
Planned Action/SEPA
FONK contends the city council erred by determining that the Wal-Mart project
was a planned action under SEPA. Respondents counter that FONK cannot show clear
error in the city council's SEPA determination.
A planned action is an alternative SEPA mechanism, providing for streamlined
environmental review of particular projects. See RCW43.21C.031; WAC 197-11-164 to
172. "SEPA specifically provides that local governments planning under the [Growth
Management Act] GMA may enact a planned action ordinance that allows subsequent
projects within the parameters of the ordinance to avoid further environmental review."
Davidson Series & Assocs. v. Citv of Kirkland. 159 Wn. App. 616, 632,246 P.3d 822(2011). In Davidson Series we discussed the purpose and procedure for this approach:
A planned action ordinance enumerates particular "planned actions" that
will be allowed to proceed without a threshold determination or an EIS
[environmental impact statement]. SEPA authorizes such an approach because
16 Given that the proposed Wal-Mart store's area is approximately 151,719
square feet and the store is roughly square-shaped, each side of the building is
approximately 390 feet (the square root of 151,719). The building is not perfectly
square (the front and back facades are longer than the side facades). But for purposes
of calculating vertical articulation sections, the guideline is phrased in terms of averages
and, thus, the exact length of each facade is immaterial. Dividing 390 feet by 50 feet
results in an average of 8 vertical articulations per side (32 articulations total) to meet
the guideline. Counting the number of vertical articulation methods shown in the
"Option II" building elevations diagrams, as approved by the city council, leads to the
conclusion that Wal-Mart meets the requirement.
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the planned action ordinance simply implements the existing land use policies
and development regulations of a city or county planning under the GMA. . ..
The planned action ordinance merely simplifies and expedites the land
use permit process by relying on the local government's preexisting land use
plan policies and development regulations. The potential environmental impacts
of planned action projects authorized by the planned action ordinance have
already been addressed in an EIS that was earlier prepared in conjunction with
one of the six undertakings listed in RCW 43.21 C.031(2)(a)(ii).
Davidson Series. 159 Wn.2d at 635-36.
As discussed above, the City adopted a planned action ordinance in 2004
(Ordinance No. 003/2004) addressing future development of the North Kelsey area.
The ordinance incorporated the City's FSEIS for the North Kelsey area, which identified
and addressed the probable significant environmental impacts of future development on
the site. The ordinance also set forth several requirements for planned action
designations. The ordinance "limits the planned action to commercial, residential, and
industrial development that is consistent with the [City of Monroe's] Comprehensive
Plan, the North Kelsey Development Plan, the North Kelsey Design Guidelines, and
North Kelsey Planned Action SEIS." The ordinance also provides that if a project does
not meet these requirements, "the project is not a planned action and additional
environmental review shall be required as provided in WAC 197-11-172."
WAC 197-11-172 codifies the standards and procedure for determining whether
a specific land use proposal falls within the scope of a previously-adopted planned
action ordinance. It provides in relevant part:
(1) Review of a project proposed as a planned action is intended to be
simpler and more focused than for other projects. A project proposed as a
planned action must qualify as the planned action designated in the planned
action ordinance or resolution, and must meet the statutory criteria for a planned
action in RCW 43.21 C.031. Planned action project review shall include:
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(a) Verification that the project meets the description in, and will
implement any applicable conditions or mitigation measures identified in,
the designating ordinance or resolution; and
(b) Verification that the probable significant adverse environmental
impacts of the project have been adequately addressed in the EIS
prepared under WAC 197-11-164 (1)(b) through review of an
environmental checklist or other project review form as specified in WAC
197-11-315, filed with the project application.
(2)(a) Ifthe project meets the requirements of subsection (1) of this
section, the project shall qualify as the planned action designated by the GMA
county/city, and a project threshold determination or EIS is not required. Nothing
in this section limits a GMA county/city from using this chapter or other applicable
law to place conditions on the project in order to mitigate nonsignificant impacts
through the normal local project review and permitting process.
(b) If the project does not meet the requirements of subsection (1)
of this section, the project is not a planned action and a threshold
determination is required. ... If an EIS or SEIS is prepared on the
proposed project, its scope is limited to those probable significant adverse
environmental impact that were not adequately addressed in the EIS used
to designate the planned action.
WAC 197-11-172.
Determinations rendered by the City's SEPA-responsible official are entitled to
substantial weight on appeal, and we review them under the "clearly erroneous"
standard. RCW 43.21 C.090: Clallam County Citizens for Safe Drinking Water v. Citv of
Port Angeles. 137 Wn. App. 214, 224-25, 151 P.3d 1079 (2007): Thornton Creek Legal
Defense Fund v. Citv of Seattle. 113 Wn. App. 34, 57-58, 52 P.3d 522 (2002). In
challenging the City's planned action determination, FONK argues that Wal-Mart's
proposal (1) "does not meet the description as set forth in the original North Kelsey
Planned Action SEIS" and (2) "is inconsistent with the North Kelsey Development Plan
and Design Guidelines" and, thus, was improperly characterized as a planned action for
the North Kelsey area. Appellant's Br. at 50. Regarding the first argument, FONK fails
to cite to any part of the FSEIS and provides no further argument regarding the project's
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failure to meet the description set forth in that document. We decline to address that
particular argument. See Norcon Builders, 161 Wn. App. at 486 (declining to consider
an inadequately briefed argument).
FONK's second argument is based entirely on its claim that Wal-Mart's proposal
is inconsistent with the plan and guidelines. As discussed above, most of FONK's
claims regarding the project's consistency with the plan and guidelines fail. FONK's
only remaining arguments on remand pertain to the pedestrian-oriented spaces
guidelines addressing lighting height/adequacy and linear feet of public seating
addressed above. We are confident this deficiency will be properly addressed and
resolved on remand. SEPA requires the preparation of an EIS only for "proposals for
legislation and other major actions having a probable significant, adverse environmental
impact." RCW43.21 C.031(1) (emphasisadded); seealsoWAC 197-11-172 ("If an EIS
or SEIS is prepared on the proposed project [due to a project's failure to qualify as a
planned action], its scope is limited to those probable significant adverse environmental
impacts that were not adeguatelv addressed in the EIS used to designate the planned
action.") (emphasis added). FONK does not identify any specific environmental impacts
of the project, does not claim that the City's SEPA-responsible official improperly
ignored any such impacts, and does not challenge the city council's findings regarding
compliance with environmental standards and mitigation measures. FONK's only
surviving claims, relating to lighting and seating, address guidelines that essentially
concern aesthetics and public enjoyment of the property. These surviving claims are
unlikely to trigger further environmental review.
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Attorney Fees
Wal-Mart and the City seek attorney fees on appeal as the prevailing parties
under RCW 4.84.370. The prevailing or substantially prevailing party on appeal of a
land use decision is entitled to its attorney fees if that party's decision also prevailed
before the administrative agency and in the superior court. RCW 4.84.370(1 )-(2);
Friends of Cedar Park Neighborhood. 156 Wn. App. at 654-55. As the substantially
prevailing parties on appeal, the City and Wal-Mart are entitled to an additional award of
reasonable attorney fees on remand and on appeal subject to compliance with RAP
18.1.
CONCLUSION
We remand for further proceedings consistent with this opinion and otherwise
affirm the decision in all respects.
WE CONCUR:
m.