Renton Neighbors for Healthy Growth v. Pacland

• Decision Date: 14 May 2012
• Docket Number: NO. 66874-9-I,66874-9-I
• Court: Washington Court of Appeals
• Parties: RENTON NEIGHBORS FOR HEALTHY GROWTH, Appellant, v. PACLAND; JEFF CHAMBERS, P.E.; BONNELL FAMILY, LLC; PETER BONNELL; CITY OF RENTON, Respondents, WAL-MART STORES, INC., Intervenor.

RENTON NEIGHBORS FOR HEALTHY GROWTH, Appellant, v. PACLAND; JEFF CHAMBERS, P.E.; BONNELL FAMILY, LLC PETER BONNELL; CITY OF RENTON, Respondents WAL-MART STORES, INC., Intervenor.

NO. 66874-9-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

FILED: May 14, 2012

UNPUBLISHED OPINION

Lau, J. — Wal-Mart Stores, Inc. proposes to expand its Renton store by 16,000 square feet. The existing store was built before the current zoning regulations were enacted and is nonconforming in some respects. Renton Neighbors for Healthy Growth (RNHG) opposes the expansion, claiming that (1) it illegally expands a nonconforming use and (2) it fails to comply with the city of Renton's design regulations. The hearing examiner approved Wal-Mart's proposal with several conditions, and the city council affirmed. RNHG appeals the hearing examiner's decision to approve the expansionunder the Land Use Petition Act (LUPA), chapter 36.70C RCW. Because (1) the hearing examiner's interpretation of the relevant code provisions is reasonable, (2) the hearing examiner's unchallenged findings are supported by substantial evidence, and (3) RNHG demonstrates no clear error in the hearing examiner's application of the law to the facts, we affirm.

FACTS

Wal-Mart Stores, Inc. retained PACLAND to provide civil engineering services for a proposed store expansion in the city of Renton (City). In 2010, PACLAND filed an application with the City for site plan review of a proposal to expand Wal-Mart's existing 134,352 square-foot store by approximately 16,000 square feet. The project would also reduce Wal-Mart's garden center by 4,000 square feet and add 127 parking stalls. The Wal-Mart property was zoned "commercial arterial" and "medium industrial."¹ On February 22, 2010, the City accepted PACLAND's application for review.

The City's Environmental Review Committee reviewed the project application and issued a "Determination of Non-Significance - Mitigated," including six mitigation measures, for the Wal-Mart expansion. No appeals of this determination were filed. The City's Department of Community and Economic Development issued a preliminary report to the hearing examiner. The report indicated that Wal-Mart's proposal was "not compliant" with several city code provisions but recommended the City approve the expansion subject to several conditions. The hearing examiner held a public hearingfor Wal-Mart's site plan application. The City received no public opposition to the project.² The hearing examiner made extensive findings based on the preliminary report and the hearing testimony. He adopted most of the analysis in the preliminary report and approved Wal-Mart's expansion proposal subject to eleven conditions.

RNHG failed to submit any comment letters and did not attend the hearing because it was not aware of the proposal at that time. RNHG filed a request for reconsideration, arguing that the project violated several Renton Municipal Code (RMC) requirements and illegally expanded a nonconforming use. The hearing examiner denied RNHG's request, concluding there was "no reason to alter the original decision nor the conditions attached to that decision." RNHG also appealed the hearing examiner's decision to the Renton city council. After a hearing, the city council's planning and development committee voted to uphold the hearing examiner's decision and recommended that the full city council do the same. The city council adopted the Committee's recommendation and affirmed the hearing examiner's decision.

RNHG filed a land use petition with the superior court under LUPA. Wal-Mart intervened in the action and moved to dismiss for lack of standing.³ The trial court denied the motion, ruling that RNHG met the RCW 36.70C.060(2) requirements forstanding. But the trial court denied RNHG's land use petition on the merits, ruling (1) the City acted within its authority in approving Wal-Mart's site plan, (2) substantial evidence supported the decision, (3) the City properly interpreted and applied its code requirements in approving the site plan, and (4) the land use decision was not an erroneous interpretation of the law or a clearly erroneous application of the law to the facts. The court concluded, "[RNHG] has failed to satisfy the standards of RCW 36.70C.130(1)(a)-(d) and is therefore not entitled to relief." RNHG 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. City of Seattle, 156 Wn. App. 633, 640, 234 P.3d 214 (2010). We review the decision of 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, because the City Council adopted the hearing examiner's findings of fact and conclusions of law, we review the hearing examiner's decision. See RMC 4-8-100(K)(2) ("Unless otherwise specified, the City Council shall be presumed to have adopted the Examiner's findings and conclusions.").

Under LUPA, a court may grant relief only if the party seeking relief has carriedthe burden of establishing that one of the standards set forth in RCW 36.70C.130(1) is met. RNHG 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 7 (quoting RCW 36.70C.130(1)). Subsections (a) and (b) are questions of law that we review de novo. Phoenix Dev., Inc. v. City of Woodinville, 171 Wn.2d 820, 828, 256 P.3d 1150 (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 reasonable but competing inferences.'" City 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.2d at 832.

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. City of Bonney Lake, 145 Wn. App. 118, 126, 186 P.3d 357 (2008).

Standing

The respondents contend RNHG lacks standing because it failed to attend the public hearing and thus failed to exhaust its administrative remedies. RNHG argues that attendance at the hearing was not required and it otherwise exhausted all administrative remedies required under the RMC.

Outside the Declaratory Judgments Act, standing is an issue that must be raised in the trial court.⁴ Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 203-04 n.4, 11 P.3d 762, 27 P.3d 608 (2000); see also Baker v. Teachers Ins. & Annuities Ass'n Coll. Ret. Equity Funds, 91 Wn.2d 482, 484, 588 P.2d 1164 (1979) (where issue of standing was not submitted to trial court, it could not be considered on appeal). Here, the respondents raised the issue below when they moved to dismiss for lack of standing, but the trial court concluded RNHG had standing and denied the motion. The respondents neither cross appealed that ruling nor assigned error to it on appeal. "Failure to cross-appeal an issue generally precludes its review on appeal." Amalgamated Transit, 142 Wn.2d at 202. Review of the record also shows that the respondents raised the standing issue before the hearing examiner and the City Council. The respondents failed to cross appeal either of those decisions even though the hearing examiner and City Council reached the merits of RNHG's arguments and implicitly concluded RNHG had standing. See Caswell v. Pierce County, 99 Wn. App. 194, 197, 992 P.2d 534 (2000) (in LUPA case, when respondents "have not cross-appealed the hearing examiner's conclusion, and the superior court's concurrence" regarding certain issues, the appellate court will not address those issues). Here the respondents waived their standing argument by failing to cross appeal or assign error to the trial court's ruling on standing.

"Vesting"

The parties dispute which version of the RMC applies in our review.⁵ RNHGargues that Wal-Mart "vested to" the former version of the RMC that was in effect at the time the City accepted Wal-Mart's site plan review application for review in February 2010. Appellant's Reply Br. at 39. It argues that all review was based on application of the former RMC⁶ and we should review the hearing examiner's decision under that version. Wal-Mart argues that a "site plan application does not trigger vesting," and thus, the former RMC provisions do...