Griffin v. Thurston County

• Decision Date: 20 November 2008
• Docket Number: No. 80214-9.,80214-9.
• Citation: 196 P.3d 141,165 Wn.2d 50
• Court: Washington Supreme Court
• Parties: Jeff GRIFFIN, Petitioner, v. THURSTON COUNTY, and its Board of Health, Respondents, and Bruce Carter, Shari Richardson, Georgia Bickford, Barbara Bushnell, and Jane Elder Bogle, Interested Parties.

196 P.3d 141

165 Wn.2d 50

Jeff GRIFFIN, Petitioner, v. THURSTON COUNTY, and its Board of Health, Respondents, and Bruce Carter, Shari Richardson, Georgia Bickford, Barbara Bushnell, and Jane Elder Bogle, Interested Parties.

No. 80214-9.

Supreme Court of Washington, En Banc.

Argued June 12, 2008.

Decided November 20, 2008.

Matthew Bryan Edwards, Owens Davies PS, Olympia, WA, for Petitioner.

Jane D. Futterman, Elizabeth Petrich, Attorney at Law, Olympia, WA, Bruce Dennis Carter, Attorney at Law, Seattle, WA, for Respondent.

OWENS, J.

¶ 1 Petitioner Jeff Griffin submitted an on-site sewage system (OSS) application for a small lot on Steamboat Island in Thurston County (County). The Thurston County Board of Health (Board) determined that Griffin had not met "all requirements" of the former Thurston County Sanitary Code (1999) (TCSC or Code), as provided by TCSC article IV, section 21.4.5.3 for owners of undersized lots, and thus he did not qualify for an OSS permit. At issue in this case is the meaning of "all requirements" in TCSC article IV, section 21.4.5.3.

¶ 2 The superior court reversed the Board's decision. The Court of Appeals reversed the superior court. We affirm the Court of Appeals decision on other grounds. Though we agree with Griffin that "all requirements" include the alternatives provided in the Code, we hold that Griffin is not entitled to an OSS permit under the facts presented here.

FACTS

¶ 3 Griffin owns a 2,825-square-foot waterfront lot. The lot is less than one-quarter the size normally required for an OSS. Griffin proposes to build a 1,600-square-foot, two-bathroom house on the property.

¶ 4 Griffin submitted an OSS permit application, which included six OSS components that required either modified setback distances or what the County refers to as "waivers" of TCSC provisions. A Thurston County Public Health and Social Services Department (Department) health officer approved all six of the components and approved the permit.

¶ 5 Griffin's neighbors, Bruce Carter and others, appealed the health officer's determination to the Department. A department hearing officer reversed the health officer's approval and denied the permit. The hearing officer concluded that because the OSS design required "a substantial number of waiver requests and horizontal setback reductions," Griffin could not meet "all requirements" of the Code, as provided in section 21.4.5.3. Administrative Record (AR) at 44.

¶ 6 Griffin appealed to the Board, which determined that the only issue before it was whether "the application ... met all other requirements other [sic] than minimum land area as required by [section] 21.4.5.3." AR at 3. The Board then concluded that an OSS applicant could not meet "all requirements" of the Code if the application used "waivers, setback adjustments or other modification of the rules." Id. The Board affirmed the hearing officer's decision.

¶ 7 Griffin appealed to the Thurston County Superior Court pursuant to the Land Use Petition Act (LUPA), chapter 36.70C RCW. The Honorable Gary Tabor granted Griffin's petition, reversed the Board, and ordered the County to issue the OSS permit.

¶ 8 The Court of Appeals, Division Two, reversed the superior court in a published opinion. Griffin v. Thurston County Bd. of Health, 137 Wash.App. 609, 622, 154 P.3d 296 (2007). The court reasoned that "[i]f `all requirements' included waivers and setbacks, the ['all requirements'] language would be meaningless and superfluous." Id. at 618, 154 P.3d 296.

¶ 9 Griffin petitioned for discretionary review on a number of issues, and we granted review only on the issue of interpretation of the "all requirements" language of the TCSC. Griffin v. Thurston County Bd. of Health, 163 Wash.2d 1011, 180 P.3d 1290 (2008).

ANALYSIS

Standard of Review

¶ 10 This case involves a land use decision, and thus judicial review is governed by LUPA. RCW 36.70C.030. We sit in the same position as the superior court, Isla Verde International Holdings, Inc. v. City of Camas, 146 Wash.2d 740, 751, 49 P.3d 867 (2002), and we apply the LUPA standards directly to the administrative record that was before the Board, see id.; Kahuna Land Co. v. Spokane County, 94 Wash.App. 836, 841, 974 P.2d 1249 (1999). We review the findings of the Board and do not give deference to the superior court's findings.

¶ 11 LUPA allows us to "grant relief only if the party seeking relief has carried the burden of establishing that one of the standards [in RCW 36.70C.130(1)(a)-(f)] has been met." RCW 36.70C.130(1). These standards include:

(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;

Id. The meaning of county code language is an issue of law that we review de novo under subsection (b), the "error of law" standard. See Isla Verde, 146 Wash.2d at 751, 49 P.3d 867. We review factual findings for substantial evidence under subsection (c). Substantial evidence is evidence sufficient to convince a rational, unprejudiced person. Id. at 751-52, 49 P.3d 867.

Interpretation of County Codes

¶ 12 We interpret local ordinances, such as the TCSC, in the same way that we interpret statutes. See Ford Motor Co. v. City of Seattle, Executive Servs. Dep't, 160 Wash.2d 32, 41, 156 P.3d 185 (2007), cert. denied, ___ U.S. ___, 128 S.Ct. 1224, 170 L.Ed.2d 61 (2008). We look first to the text of a statute to determine its meaning. Kilian v. Atkinson, 147 Wash.2d 16, 20-21, 50 P.3d 638 (2002). We may also discern plain meaning from related provisions and the statutory scheme as a whole. Tingey v. Haisch, 159 Wash.2d 652, 657, 152 P.3d 1020 (2007). If statutory language is unambiguous, we need not employ canons of statutory construction. Kilian, 147 Wash.2d at 20, 50 P.3d 638.

The Meaning of TCSC Article IV, Section 21.4.5.3

¶ 13 TCSC article IV, section 21.4.5 provides that the health officer may:

Permit the installation of an OSS, where the minimum land area requirements or lot sizes cannot be met, only when all of the following criteria are met:

21.4.5.1 The lot is registered as a legal lot of record created prior to January 1, 1995; and

21.4.5.2 The lot is outside an area of special concern where minimum land area has been listed as a design parameter necessary for public health protection; and

21.4.5.3 The proposed system meets all requirements of these regulations other than minimum land area.

The County concedes that Griffin satisfied the first two subsections, thus we must only determine the meaning of TCSC article IV, section 21.4.5.3.

¶ 14 The TCSC's structure has led to Griffin's disagreement with the County about what the OSS regulations "require." As an example, section 10.1 outlines "minimum horizontal separations," commonly known as "setbacks." Table I in section 10.1 lists items requiring setback (i.e., building foundation) and certain OSS components (i.e., septic tank) and outlines the number of feet of setback (5-foot setback of septic tank from building foundation). Some of the setback measurements contain qualifying language. For instance, the 5-foot setback for septic tank to building foundation corresponds to footnote 6, which reads: "[t]he health officer may allow a reduced horizontal separation to not less than two feet where the ... building foundation is up-gradient." TCSC art. IV, § 10.1, tbl. I n. 6. The Board and the Court of Appeals held that provisions such as footnote 6 essentially "waive" the requirements, and therefore OSS petitioners who use them cannot meet "all requirements" of the TCSC. Griffin argues, and the superior court agreed, that provisions like footnote 6 are not waivers but alternative setbacks and standards specifically articulated in the Code and that OSS petitioners who utilize them meet "all requirements" of the Code.

¶ 15 The plain language of TCSC article IV, section 21.4.5.3 directs that a small-lot OSS petitioner satisfy each and every¹ requirement of the TCSC (other than minimum lot size) to qualify for an OSS permit. The meaning of the word "requirement" is the central issue. The verb "require" means "to demand as necessary or essential (as on general principles or in order to comply with or satisfy some regulation)." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1929 (2002). A "requirement" is, of course, "something required." Id.

¶ 16 Under this definition, "requirements" unambiguously include specifically articulated alternatives. Where the Code explicitly provides more than one method of satisfying a particular provision, we cannot say that only the first method that happens to be listed is essential to satisfy the regulation on its own. The scope of the "requirement" is defined by all of the articulated methods taken together, not solely by the first or most restrictive on the list. For example, the building foundation/septic tank setback requirement, in its entirety, provides a choice of either a 5-foot setback or approval by a health officer of a smaller setback based on the up-gradient location of the foundation.

¶ 17 The County argues that allowing small-lot owners to use the Code's articulated alternative requirements renders the "all requirements" language in TCSC article IV, section 21.4.5.3 superfluous. Section 21.4.5.3 specifies that small-lot owners must comply with "all requirements" in order to receive OSS permits, but the County points out that presumably all owners of lots of any size must also comply with "all requirements" of the Code. To have meaning, the section 21.4.5.3 "all requirements" language must differentiate small-lot owners from standard-sized-lot owners in some way. As Griffin points out, the general waiver provisions...