Opinion
No. 22906-4-II.
March 26, 1999.
Appeal from the Superior Court for Pierce County, No. 95-2-12783-1, Terry D. Sebring, J., on March 14, 1997.
John M. Groen, Groen Stephens, Richard M. Stephens, Groen Stephens, Appellants.
Carol A. Morris, Kenyon Law Firm; Howard F. Jensen, Ogden, Murphy, Wallace, Respondents.
Benjamin J. Gantt Jr., Graham Dunn; Robin L. Rivett, Pacific Legal Foundation, Anne M. Hawkins, Pacific Legal Foundation, Amicus Curiae on behalf of Pacific Legal Foundation.
Jeffrey M. Eustis, Law Offices of J. Richard Aramburu, Amicus Curiae on behalf of Washington Environmental Council.
The City of Gig Harbor denied the Stearnses' proposed development of property. The Stearnses appealed to the superior court and joined a 42 U.S.C. § 1983 claim alleging the City violated their civil rights. The superior court affirmed the City's denial of the development, dismissed the § 1983 action and, finding the § 1983 action frivolous, awarded attorney's fees to the City. The Stearnses filed this appeal and the City now seeks attorney's fees under RCW 4.84.370, which allows attorney's fees in land use cases to petitioners who have substantially prevailed in front of the local government, the trial court, and the appellate court. The Stearnses contend that RCW 4.84.370 violates equal protection, due process, free speech, and the right to redress grievances. The Stearnses also challenge the dismissal of their 42 U.S.C. § 1983 claim and the trial court's finding that such claim was frivolous. Finally, the Stearnses contend that Gig Harbor misapplied its own ordinances concerning parking space requirements, permitted usage, and height requirements. We hold the statute constitutional as applied here. But we reverse the award of attorney's fees based upon bringing a frivolous action. Otherwise, we affirm the trial court.
FACTS
Stanley and Judy Stearns own four and one-half lots in the City of Gig Harbor on which they operate a marina, Gig Harbor Marina, Inc., known as Arabella's Landing. These lots, zoned "Waterfront Millville," are currently developed with a marina service building, a duplex, and a single-family residence.
The Stearnses proposed to develop the site further with an office-retail building, a yacht club, and an open plaza. The Stearnses applied for site plan approval and for a conditional-use permit, which was required to develop the yacht club. The hearing examiner denied site plan approval because of inadequate on-site parking, but granted a conditional-use permit on condition the Stearnses provide additional parking. The Stearnses contested the City's method of calculating the parking, arguing that the City was misinterpreting its code. Under the Stearnses' interpretation of the code, the site had adequate parking.
The Gig Harbor City Council affirmed the site plan denial because of the parking inadequacy. In addition, the council found "the site plan is not consistent with the City's comprehensive plan," the proposed use was not "medium usage," and the proposed building did not comply with height restrictions in the Waterfront Millville zone. The city council reversed the grant of the conditional-use permit, finding that such a permit could not be granted if the site had inadequate parking.
The Stearnses filed a Land Use Petition in Pierce County Superior Court under the Land Use Petition Act (LUPA), RCW 36.70C. In July 1996, the trial court affirmed Gig Harbor's land use decisions and dismissed the Stearnses' petition.
Seven days after the petition was dismissed, the City filed a "Motion for Calculation of Attorneys' Fees Under RCW 4.84.370." The City asked the court to "calculate the amount of attorneys' fees that the City would be entitled to under RCW 4.84.370, in the event this action is appealed and the City prevails on appeal." The City further stated that "a ruling at this time would simplify the issues on appeal and clarify the financial risks facing each party." The City accompanied this motion with two affidavits of counsel justifying $11,712 in attorney's fees.
RCW 4.84.370 provides:
Appeal of land use decisions — Fees and costs. (1) Notwithstanding any other provisions of this chapter, reasonable attorneys' fees and costs shall be awarded to the prevailing party or substantially prevailing party on appeal before the court of appeals or the supreme court of a decision by a county, city, or town to issue, condition, or deny a development permit involving a site-specific rezone, zoning, plat, conditional use, variance, shoreline permit, building permit, site plan, or similar land use approval or decision. The court shall award and determine the amount of reasonable attorneys' fees and costs under this section if:
(a) The prevailing party on appeal was the prevailing or substantially prevailing party before the county, city, or town, or in a decision involving a substantial development permit under chapter 90.58 RCW, the prevailing party on appeal was the prevailing party or the substantially prevailing party before the shoreline(s) hearings board; and
(b) The prevailing party on appeal was the prevailing party or substantially prevailing party in all prior judicial proceedings.
(2) In addition to the prevailing party under subsection (1) of this section, the county, city, or town whose decision is on appeal is considered a prevailing party if its decision is upheld at superior court and on appeal.
After the Stearnses opposed the motion, the City withdrew it. The Stearnses then moved to amend their petition to add § 1983 claims; they alleged that the City had used the "motion to calculate attorney's fees under RCW 4.84.370" as a threat to deter the Stearnses' appeal of the Land Use Petition. The Stearnses contended that the statute was unconstitutional and that their proposed amendment sought a declaration of the rights and duties of the parties. The trial court allowed the amendment.
The Stearnses moved for summary judgment, and the City countered with a "Motion to Dismiss Damage Claims Under 42 U.S.C. § 1983 and 42 U.S.C. § 1988 With Prejudice." The trial court denied the Stearnses' motion for summary judgment, granted the City's motion to dismiss, and found that the § 1983 claims were frivolous. The City subsequently moved for attorney's fees under 42 U.S.C. § 1988, RCW 4.84.185, and CR 11; the trial court awarded $5,773.80 in fees against the Stearnses and their attorneys.
ANALYSIS
The City first contends that the constitutional issues are not ripe because no attorney's fees have been assessed against the Stearnses under RCW 4.84.370. The argument lacks merit. In both actions pending before this court involving the Stearnses and the City, the City has requested attorney's fees on appeal on the basis of RCW 4.84.370. This raises the question of whether the statute is constitutional.
The other action filed in this court is Stearns v. City of Gig Harbor, No. 22912-9-II (March 26, 1999).
A. Is RCW 4.84.370 Constitutional?
The Stearnses' constitutional challenges to the statute rest upon two propositions: (1) the burden created by the statute is not carried equally by all litigants in land use cases, but only by those who challenge a local government's land use decision; and (2) while not absolutely denying the right to appeal, the statute chills the exercise of such right.
1. Equal Protection a. Standard of Review
The legislative classification here defines a party's liability for the attorney's fees and costs of the opposing party on appeal of a local land use decision. A party who prevails or substantially prevails is entitled to fees and costs, and the statute defines the concept of "prevailing party." Assuming the statute creates a classification that treats members of the same class differently, such classification "neither involves suspect criteria (race, religion, national origin, alienage, gender) nor affects fundamental interests ({e.g.}, free speech, privacy, voting rights), {and} the court will engage in only minimum scrutiny of the enactments{.}" American Network, Inc. v. Utilities and Transp. Comm'n, 113 Wn.2d 59, 77-78, 776 P.2d 950 (1989) (citation omitted) (footnote omitted). Statutes that regulate business and economic activities "carry a strong presumption of constitutionality." American Network, 113 Wn.2d at 78. And we will uphold such statutes if the classification created bears any rational relation to a legitimate state interest. Seeley v. State, 132 Wn.2d 776, 795, 940 P.2d 604 (1997). Stated slightly differently, such a classification will be upheld "`unless it rests on grounds wholly irrelevant to the achievement of legitimate state objectives.'" State v. Coria, 120 Wn.2d 156, 171, 839 P.2d 890 (1992) (quoting Omega Nat'l Ins. Co. v. Marquardt, 115 Wn.2d 416, 431, 799 P.2d 235 (1990)).
b. Burden of Proof
The party challenging the constitutionality of a statute bears the burden of proving it is unconstitutional beyond a reasonable doubt. Ford Motor Co. v. Barrett, 115 Wn.2d 556, 563, 800 P.2d 367 (1990). The Stearnses thus bear the burden of proving all the elements of an equal protection violation. Initially, the Stearnses must show that the statute fails to afford like treatment to "persons similarly situated with respect to a legitimate purpose of the law. . . ." Coria, 120 Wn.2d at 169 (citing State v. Schaaf, 109 Wn.2d 1, 17, 743 P.2d 240 (1987)). Next, if the Stearnses can show such disparate treatment, they must demonstrate that the difference lacks any rational basis and is "`purely arbitrary.'" Coria, 120 Wn.2d at 172 (quoting Omega Nat'l Ins., 115 Wn.2d at 431).
c. Does the Statute Benefit Only One Class of Litigants, i.e., Local Government?
The statute is neutral on its face, i.e., it does not say that only local governments can recover fees on appeal. But not all facially neutral statutes are neutral in their application; some legislation denies equal protection by the manner in which it is applied. See 2 Ronald D. Rotunda, treatise on constitutional law: Substance and Procedure § 18.4, at 344 (1986). Examples of "as-applied" challenges are Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (challenge to a facially neutral zoning decision), and Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) (challenge to facially neutral police screening exam).
Stearnses contend that not all parties who appeal land use decisions are afforded like treatment under the statute. The Stearnses argue that because the government is both decision-maker and party at the local level, it will never appeal its own land use decision, and so, the government will never be the losing party at the first level. Thus, the Stearnses conclude, the government will never be assessed fees and costs under the statute because it will never lose at all levels.
But the Stearnses' argument rests upon an assumption not demonstrated by this record: that even assuming the City will never appeal its own decision, it is necessarily the prevailing or substantially prevailing party at the local level. The City poses an illustrative hypothetical. Suppose a city hearings examiner approves a proposed development, attaching three or more conditions. The developer appeals to the city council, which strikes all but one of the conditions; unless the stricken conditions were minor, the developer would have substantially prevailed in proceedings before the City. Then suppose the developer appeals the remaining condition to superior court, which strikes it; the developer would be the prevailing party in that judicial proceeding as well. Finally, suppose the City appeals the superior court's decision to the Court of Appeals, which affirms the trial court. The developer would be the substantially prevailing or prevailing party before the appellate court, the trial court, and the City and thus, the developer, not the City, would be entitled to attorney's fees and costs under the statute.
This construction is supported by paragraph (2) of the statute, which provides: "In addition to the prevailing party under subsection (1) of this section, the county, city, or town whose decision is on appeal is considered a prevailing party if its decision is upheld at superior court and on appeal." RCW 4.84.370(2).
Under the hypothetical, a developer who improved his or her position from the hearing examiner to the city council, but then failed to improve through the superior court and appellate court could argue under subsection (1) that the City is not entitled to fees because the developer prevailed at the city level. But subsection (2) makes clear that under these circumstances, the City is entitled to fees. A necessary corollary is that a developer who improves its position from the hearing examiner to the city council can in some situations be considered to have prevailed or substantially prevailed. If the City were always the prevailing party at the council level, subsection (2) would not be necessary. We conclude that the Stearnses have failed to carry their burden of showing that the statute, as applied, discriminates against land use applicants. Therefore, we need not engage in further equal protection analysis.
2. Due Process/First Amendment Right to Petition
The First Amendment includes the right to petition the government for redress of grievances. The Stearnses argue correctly that this right includes meaningful access to the courts. In re Primus, 436 U.S. 412, 426, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978); California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). Then the Stearnses argue that, because RCW 4.84.370 permits an award of attorney's fees to the government as prevailing party in a land use case but not to an applicant, the statute denies due process of law to applicants and impermissibly "chills" their First Amendment rights. As discussed above, this argument assumes a false premise — that an applicant can never qualify for attorney's fees as a prevailing party. In any event, the statute does not keep an applicant from obtaining meaningful judicial review of a land use decision. The Stearnses went to superior court to challenge the City's denial of their development permit. And not all superior court decisions entitle the losing party to higher judicial review. For instance, the Rules of Appellate Procedure allow only discretionary review of superior court decisions in cases originating in the courts of limited jurisdiction. RAP 2.3(d). See City of Seattle v. Hesler, 98 Wn.2d 73, 653 P.2d 631 (1982). Likewise, in most cases, review by the Supreme Court is only at that court's discretion. RAP 4.2. Other statutes and court rules also permit an award of attorney's fees and costs against a party who pursues an appeal beyond a certain level. See, e.g., MAR 7.3 (party who appeals arbitration award and fails to improve position is liable for reasonable attorney's fees); RAP 18.9(a) (sanctions for frivolous appeal); RCW 10.73.160 (appellate costs, including fee for court-appointed counsel, assessed against adult or juvenile criminal who does not prevail on appeal).
And due process does not guarantee the right to appeal. Ford Motor, 115 Wn.2d at 562. Rather, the State may impose a risk of attorney's fees beyond a certain level in the judicial process where "the balance of state and private interests favors the government scheme." Ford Motor, 115 Wn.2d at 569 (citation omitted). Here, the Legislature has determined that to discourage meritless appeals, a party appealing a land use decision beyond the superior court risks paying an opponent's fees. Given the strong presumption of constitutionality where a statute regulating economic matters is challenged on equal protection or due process grounds, we hold that the balance here favors the government scheme. RCW 4.84.370 does not unconstitutionally deny access to the courts.
3. Separation of Powers
The gist of this argument is that by enacting this attorney's fee statute, the Legislature has burdened and frustrated the judiciary's power of judicial review because only those who can afford the other side's attorney's fees will appeal local land use decisions. This ignores the longstanding rule in this state that a party can recover attorney's fees only when authorized by statute, contract, or recognized ground in equity. And the Legislature has enacted many statutes that authorize the recovery of attorney's fees. This is a common legislative function, not the province of the courts.
Moreover, the Stearnses have not demonstrated how the statute affects the powers of the court. While the statute may "chill" some cases in which the courts might overturn the actions of local government, the Stearnses have not cited a single case as to how this interferes with the powers of the judiciary. In those cases that reach the court, the court's powers are unchanged.
B. Conflict with 42 U.S.C. § 1983 and 42 U.S.C. § 1988
The Stearnses contend that RCW 4.84.370 conflicts with, and is thus preempted by, 42 U.S.C. § 1983 and § 1988. These latter statutes provide a cause of action for the violation of federal constitutional and statutory rights, and for attorney's fees to the prevailing party. Because civil rights claims often accompany, or are part of, land use petitions, the Stearnses contend that the statutes conflict.
"Preemption may occur if (1) Congress passes a statute that expressly preempts state law, (2) Congress occupies the entire field of regulations, or (3) state law conflicts with federal law, making compliance with both an impossibility or state law presents an obstacle to the accomplishment of a federal purpose." Stevedoring Servs. of Am. v. Eggert, 129 Wn.2d 17, 23, 914 P.2d 737 (1996) (citation omitted). The Stearnses have not claimed that § 1983 or § 1988 expressly preempts RCW 4.84.370, or that Congress occupied the entire field of land use law. Rather, the Stearnses' claim that RCW 4.84.370 presents an obstacle to the accomplishment of a federal purpose.
Section 1983 and § 1988 will never apply in the same case as RCW 4.84.370 because by definition the government would have to lose litigation to be susceptible to attorney's fees under § 1988, while the government must win litigation to receive attorney's fees under RCW 4.84.370.
The Stearnses cite Felder v. Casey, 487 U.S. 131, 108 S.Ct. 2302, 101 L.Ed.2d 123, (1988), in which the United States Supreme Court invalidated a statute requiring litigants to file a claim against a local government before litigating any claim against the government, including § 1983 claims. Litigants who did not file such a claim in the proscribed time period were barred from filing suit. Felder is distinguishable. There, the statute barred the claim. Here, the statute does not bar an appeal past the superior court; it only imposes fees on an appellant who is unsuccessful for the third time.
The Stearnses contend that the "chilling effect" of RCW 4.84.370 will deter people from bringing the takings claims that accompany land use petitions. This potential "chilling effect" was of concern to the United States Supreme Court when it limited the attorney's fees defendants could recover under § 1983 and § 1988 to those suits where the plaintiff's claims were "frivolous, unreasonable, or without foundation." Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978)).
A takings claim is a claim that the government has taken private property for public use without paying just compensation. U.S. Const., amend. V.
The Court held that:
"To take the further step of assessing attorneys fees against plaintiffs simply because they do not finally prevail would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII."
Hughes, 449 U.S. at 14-15 (quoting Christiansburg Garment, 434 U.S. at 422).
While Christianburg dealt with Title VII of the Civil Rights Act of 1964, the case citing it, Hughes v. Rowe, adopted the same standard for § 1983 and § 1988, expressing identical concerns. Hughes v. Rowe, 449 U.S. 5, 14-15, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980).
But a land use applicant is not required to join any potential § 1983 and § 1988 claims with a petition to review a governmental land use decision. Such claims may be brought in a separate action not subject to the fees provision of RCW 4.84.370. Further, even if the claims are joined, RCW 4.84.370 authorizes an award of fees on appeal only of a governmental "land use approval or decision." Thus, where a land use petition is joined with § 1983 or § 1988 claims, attorney's fees can be awarded under RCW 4.84.370 only for the land use portion of the action.
In conclusion, the Stearnses have failed to show that RCW 4.84.370 is unconstitutional as applied. The City is entitled to reasonable attorney's fees incurred after the appeal from the superior court.
We have recently held that RCW 4.84.370 only provides for an award of attorney's fees incurred before the Court of Appeals or the Supreme Court. Baker v. Tri Mountain, No. 20905-5-II (filed March 22, 1999).
A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
C. The § 1983 Claims
On the City's motion, the trial court dismissed the Stearnses' claim for declaratory relief under § 1983. The court also found the action frivolous and awarded attorney's fees to the City under 42 U.S.C. § 1988, RCW 4.84.185, and CR 11.
To establish a claim under § 1983, the Stearnses had to show that the City (1) "violated a federal constitutional or statutory right," and (2) in doing so, the City was "act{ing} under color of state law." Kalmas v. Wagner, 133 Wn.2d 210, 215, 943 P.2d 1369 (1997) (citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Sintra, Inc. v. City of Seattle, 119 Wn.2d 1, 11, 82 P.2d 765 (1992)). As we have discussed, RCW 4.84.370 is constitutional. It follows that the Stearnses' § 1983 claim fails to the extent that it was based upon the City's use of an unconstitutional statute. But the Stearnses also argue their § 1983 claim can be supported by the City's use of a constitutional statute in an improper manner, citing Greenwich Citizens Comm., Inc. v. Counties of Warren and Wash. Indus. Dev. Agency, 77 F.3d 26 (2nd Cir. 1996)
But we need not address the arguments because the Stearnses have, with this opinion, received the relief they sought. The Stearnses' § 1983 claim asked for a declaration that RCW 4.84.370 was unconstitutional and a declaration of their rights under the statute. The Stearnses did not ask for damages. We have held the statute constitutional. And the Stearnses' rights and duties under the statute, within the context of this case, flow from our decision and the terms of the statute. In short, whether the trial court erred in dismissing the action is of no consequence. We have granted the Stearnses the relief they sought.
D. Attorney's Fees for Frivolous Claim
Whether a particular claim is frivolous lies within the discretion of the trial court. But if the lawsuit is not frivolous as a whole, attorney's fees cannot be awarded under RCW 4.84.185. Biggs v. Vail, 119 Wn.2d 129, 136, 830 P.2d 350 (1992). The substantive claims regarding the constitutionality of RCW 4.84.370 were not found to be frivolous, only the § 1983 claim based upon the City's motion to calculate fees under RCW 4.84.370. Therefore the award of fees under RCW 4.84.185 was unwarranted.
Under CR 11:
A "`pleading, motion or legal memorandum' may be subject to CR 11 sanctions if it is both (1) `baseless' and (2) signed without reasonable inquiry." A filing is "baseless" if (a) not well grounded in fact, or (b) not warranted by (i) existing law or (ii) a good faith argument for the alteration of existing law.
Blair v. GIM Corp., Inc., 88 Wn. App. 475, 482-83, 945 P.2d 1149 (1997) (citations omitted).
Under § 1988, attorney's fees can be awarded against a plaintiff only if his claims are "frivolous, unreasonable, or without foundation." Hughes, 449 U.S. at 14 (citing Christiansburg Garment, 434 U.S. at 422).
The trial court, apparently viewing the Stearnses' § 1983 action as one for damages, dismissed the § 1983 action because the Stearnses had not shown that (1) the City violated their constitutional rights, (2) the City's motion to calculate attorney's fees was not a proximate cause of injury to the Stearnses, and (3) the City was immune from liability. We agree that the Stearnses failed to show that the City violated a constitutional right, but the remaining two reasons fail because the Stearnses were not seeking damages. Rather, the Stearnses sought a declaration of the rights and duties of the parties under RCW 4.84.370. Whether the City's motion was a proximate cause of damage to the Stearnses was simply not an issue. Similarly, whether the City was immune from a damage claim under § 1983 was not an issue. Thus, the sole reason supporting dismissal of the § 1983 claim was the Stearnses' failure to show a violation of a constitutional right. The trial court did not find this issue to be frivolous and we agree. Tiger Oil Corp. v. Department of Licensing, 88 Wn. App. 925, 938, 946 P.2d 1235 (1997) ("A lawsuit is frivolous when it cannot be supported by any rational argument on the law or facts.") Accordingly, the award of attorney's fees against the Stearnses must be reversed.
E. Parking Requirements
Turning to the merits of the underlying land use appeal, the Stearnses contend that the City misapplied its ordinances governing parking. The standard of review of the interpretation of a statute under LUPA is apparently "de novo under the contrary to law standard." Freeburg v. City of Seattle, 71 Wn. App. 367, 371, 859 P.2d 610 (1993). RCW 36.70C.130, the statute governing "standards for granting relief" under LUPA, provides that:
The parties agree that this is the appropriate standard, but the cases they cite deal with review under the old writ of cert system. Freeburg v. City of Seattle, 71 Wn. App. 367, 371, 859 P.2d 610 (1993) and Hilltop Terrace Homeowner's Ass'n v. Island County, 126 Wn.2d 22, 29 n.3, 891 P.2d 29 (1995).
The court may grant relief only if the party seeking relief has carried the burden of establishing that. . . .
. . . .
(b) The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise;
. . . .
(d) The land use decision is a clearly erroneous application of the law to the facts.
Gig Harbor Municipal Code (GHMC) § 17.72.030(Q)(4), which governs general parking requirements for "marinas, moorages, and docks," provides:
"If commercial or residential development is to be combined with a watercraft usage requiring parking, the usage which generates the larger number of spaces shall satisfy the requirements of the other usage{.}" The other relevant ordinance is the parking provision specific to the Waterfront Millville zone in which the proposed development is located. GHMC § 17.48.070, provides: "Parking and loading facilities on private property shall be provided in accordance with the requirements of Chapter 17.72 GHMC, except that where there are properties serving multiple uses, parking shall be provided for the combined total of the individual uses." (Emphasis added.)
The Stearnses calculate the parking spaces required as:
Marina with yacht club 41
Retail/professional 15
complex
Duplex 4
House 2
TOTAL 62
Gig Harbor calculates the spaces as:
While these figures are taken from the Appellants' brief, the City and the Appellants agree on the method of determining the number of spaces required for each separate structure or use on the property. They disagree over whether the parking that would be required for the Yacht Club under a "straight" square-footage calculation can be rolled into the existing Marina parking under the GHMC.
Marina 41
Yacht Club 30
Retail/professional 15
complex
Duplex: 4
House: 2
TOTAL 92
The dispute is whether the parking requirements should be calculated under the general parking ordinance for marinas ("commercial . . . development . . . combined with a watercraft usage requiring parking"), which would allow the parking for the marina to satisfy the parking for the Yacht Club, or under the Waterfront Millville specific ordinance, which would require separate parking for the Yacht Club.
The Stearnses contend that "the reference in GHMC 17.48.070 to multiple uses applies to situations where more than one of the code defined uses set forth in GHMC 17.72.030(A) through (T) are served by a single property." The Stearnses then argue that the "marina combined with commercial . . . development {Yacht Club}" is recognized as an "individual use" in 17.72.030(Q)(4), and therefore the proposed development does not comprise "multiple uses" under GHMC 17.48.070.
The City counters that the term "multiple uses" in GHMC 17.48.070, which is not defined elsewhere in the code, has a plain meaning contrary to the Stearnses' interpretation. A yacht club is not the same "use" as a marina. And since the Waterfront Millville-specific ordinance was passed at a later date than the earlier general parking ordinance, GHMC 17.48.070 controls. See State v. Landrum, 66 Wn. App. 791, 796, 832 P.2d 1359 (1992) ("{W}hen two statutory provisions dealing with the same subject matter are in conflict, the latest enacted provision prevails when it is more specific than its predecessor.")
We find the City's interpretation persuasive. The Stearnses have cited nothing in the Gig Harbor code to show that the phrase "multiple uses" in GHMC 17.48.070 means only more than one of the "listed uses" from the general parking calculation ordinance, GHMC 17.72.030. Where there is no indication that this definition of "multiple uses" was intended by the city council, the plain meaning of the phrase controls, and a yacht club and marina are plainly separate, and thus multiple, uses. Accordingly, the City's calculation of the necessary parking spaces is correct.
F. Conditional-Use Permit Subject to Conditions
Finally, the Stearnses contend that the city council erred in reversing the hearing examiner's grant of a conditional-use permit subject to certain conditions.
The definition of a "conditional use" is "a use . . . permitted only after . . . the granting of a conditional use permit imposing such performance standards as will make the use compatible with other uses in the same district." GHMC 17.04.260 (emphasis added). The Stearnses contend that "imposing such performance standards" is synonymous with "imposing conditions." Further, the Stearnses cite the chapter of the Gig Harbor Municipal Code dealing with conditional uses, specifically the provision on "Procedure," GHMC 17.64.020(C), which provides: "Granting or Denial. The decision may include special restrictions or conditions deemed necessary or desirable in furthering the intent of the ordinance pertaining to the proposed development." GHMC 17.64.020(C).
While this provision seems to explicitly provide for granting conditional-use permits subject to conditions, what the code gives with one provision it takes away with the next. Or more accurately, two provisions later, in the section dealing with "Review Criteria," GHMC 17.64.040 provides:
The Stearnses cite only one case, State ex rel. Standard Mining Development Corp. v. City of Auburn, 82 Wn.2d 321, 510 P.2d 647 (1973). The case is cited for the proposition that "conditions can properly be imposed on conditional use permits." While the case does certainly indicate that an administrative body has the inherent power to condition the granting of conditional-use permits, nothing in the case stands for the proposition that such inherent powers cannot be limited through an express legislative act, as appears to have been done by the Gig Harbor City Council in this case. See discussion below.
Each determination granting or denying a conditional use permit shall be supported by written findings of fact showing specifically wherein all the following conditions are met:
. . . .
D. That the site is of sufficient size to accommodate the proposed use and all yards, open spaces, walls and fences, parking, loading, landscaping and other features as are required by this title or as needed in the opinion of the examiner.
GHMC 17.64.040(D).
Where general and specific laws address the same subject matter, the specific law applies to the exclusion of the general. Medical Consultants Northwest, Inc. v. State, 89 Wn. App. 39, 49, 947 P.2d 784 (1997), review denied, 136 Wn.2d 1002 (1998). Therefore, since the GHMC 17.64.040 requires specific findings that a site is of "sufficient size to accommodate . . . all . . . parking," and the hearing examiner found that "{t}he site, while large for the Waterfront Millville District, is not of adequate size to accommodate code required parking for all the uses within the structure proposed," the conditional-use permit could not be issued with a condition relating to parking.
The city council properly reversed the hearing examiner's grant of the conditional use permit.
G. Comprehensive Plan; Height Requirements
The Stearnses maintain that the City failed to provide sufficient factual findings and legal conclusions to allow for meaningful judicial review of the two alternate grounds for denial of the site plan: (1) that the site plan did not meet criteria for "medium usage" so as to be consistent with the comprehensive plan; and (2) that the site plan did not provide public viewing amenities to justify a departure from relevant height limitations in the GHMC. Because we have held that the City properly denied the Stearnses' application because of inadequate parking, we need not address these issues.
In conclusion, we affirm the trial court regarding the substantive LUPA appeal and the constitutionality of RCW 4.84.370, but we reverse the award of attorney's fees based upon a frivolous § 1983 claim.
Armstrong, J.
We concur:
Bridgewater, C.J.
Hunt, J.