Opinion
No. 58236-4-I.
May 29, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-2-36701-6, Linda Lau, J., entered March 20 and April 17, 2006.
A Seattle hearing examiner rejected all but one of Hettick's challenges to the proposed expansion of a private school, but remanded the issue of noise abatement to the city's department of planning and development for further study. Hettick asserts the hearing examiner had no authority to modify the decisions of the city planning director, and lost jurisdiction once the issue of noise abatement was remanded. We hold that the procedure followed by the hearing examiner was lawful, and affirm.
I
The Bertschi School is a private school in Seattle. The school applied to the Seattle Department of Planning and Development (DPD) for a master use permit to construct a gymnasium, classroom, and an outdoor play area.
The school also planned to provide 18 parking stalls, convert an adjoining single-family residence into classroom and office space, and demolish a multi-family structure. In March 2005, the DPD director issued a conditional use permit allowing the school to proceed with its plans. Hettick, and other property owners and residents near the school, appealed the director's decision to a hearing examiner. The appeal asserted that the plan as approved by the director failed to properly mitigate traffic congestion and provide adequate parking. The appeal also challenged the overall size and scale of the new building.
The examiner held three days of hearings, and rejected all but one of Hettick's challenges to the director's decision. The one remaining issue concerned the potential noise impacts from use of the playground. The examiner noted that no acoustical study had been done to predict and assess the levels of noise that would be generated by the outdoor play area. At the hearing, the school had proposed constructing a fence along one perimeter of the new play area after an acoustical study was completed. The examiner found that this was a reasonable solution, but held that the study needed to be performed and reviewed prior to the approval of the conditional use permit, not afterward. Accordingly, she remanded the director's decision, instructing the director to order an acoustical study evaluating expected noise levels of the play area and recommend any mitigation measures necessary.
Hettick objected to the remand for a new acoustical study, requesting that the examiner either enter a final decision reversing the director's decision, or reversing and remanding the decision to the director for additional review and a new department decision. The examiner rejected Hettick's objections, noting that the remand was authorized under both the Seattle Municipal Code and the Hearing Examiner Rules of Practice.
The requested acoustical study was completed. The director found the study's proposed mitigation measures to be appropriate, and recommended their adoption by the examiner. Hettick was permitted to critique and comment upon the study.
The hearing examiner issued her final decision in October 2005, modifying the director's original decision so as to incorporate the mitigation measures recommended in the acoustic study.
Hettick filed a Land Use Petition Act (LUPA) appeal in King County Superior Court, alleging that the hearing examiner erred by remanding to the DPD for the acoustical study, and then relying on that study to modify the DPD director's decision. The superior court affirmed the hearing examiner's decision and dismissed Hettick's petition, noting that Hettick had failed to prove that the hearing examiner engaged in an unlawful procedure or failed to follow a prescribed process.
II.
Under the Land Use Petition Act (chapter 36.70C RCW), conclusions of law entered by a local adjudicator in a land use proceeding are reviewed by an appellate court de novo. An appellate court reviews administrative decisions on the record of the administrative tribunal, not of the superior court. To prevail, petitioner must establish that the hearing examiner made a mistake of law, that there was insufficient evidence to support the decision, or that the decision was clearly erroneous. Whether the hearing examiner correctly applied a particular legal doctrine will be reviewed to determine if it was clearly erroneous. The decision as a whole will be reviewed for substantial evidence supporting the hearing examiner's decision. Substantial evidence is a sufficient quantity of evidence to persuade a fair-minded person of the truth or correctness of the order.
Habitat Watch v. Skagit County, 155 Wn.2d 397, 406, 120 P.3d 56 (2005).
HJS Dev., Inc. v. Pierce County, 148 Wn.2d 451, 468, 61 P.3d 1141 (2003).
City of Univ. Place v. McGuire, 144 Wn.2d 640, 647, 30 P.3d 453 (2001).
McGuire, 144 Wn.2d at 647.
McGuire, 144 Wn.2d at 647.
Hettick does not dispute the substantive merits of the hearing examiner's final decision on appeal. Instead, he asserts the hearing examiner exceeded her authority by considering new information about potential noise impacts submitted after the initial hearing, and by modifying the director's decision to incorporate noise abatement measures based on that information.
RCW 35A.63.170 authorizes cities to adopt a hearing examiner system under which a hearing examiner may hear and decide applications for conditional uses, variances, subdivisions, or any other class of applications pertaining to land development or use. The statute also vests in the hearing examiner the power to hear and decide appeals of administrative decisions.
Section 23.76.022 of the Seattle Municipal Code (SMC) governs administrative appeals. Under the code, appeals shall conform with the rules of the hearing examiner. The examiner shall give the director's decisions made on a master use permit substantial weight, except for determinations on variances, conditional uses, and special exceptions, which shall be given no deference.
SMC 23.76.022.
SMC 23.76.022(C)(3)(b).
SMC 23.76.022(C)(7).
The Hearing Examiner Rules of Practice and Procedure (HER) issued by the Seattle office of the hearing examiner authorize remand of a director's decision. HER 2.23(a) expressly permits remand if the examiner determines that information, analysis, or other material necessary to the hearing examiner's recommendation has not been provided, or, in the case of an appeal, that there is a lack of information, analysis, or other material needed to satisfy the provisions of relevant regulations. In such circumstances, the examiner may remand for additional information, analysis, or other material.
HER 2.23(a).
HER 2.23(a).
In the present case, the examiner remanded to the DPD for preparation of an acoustical study. The director was to review the results of the study and determine whether any additional mitigation was warranted. Such a remand was proper under HER 2.23(a).
Hettick points to subsection (c) of HER 2.23 to argue that the examiner lacked jurisdiction to modify the director's decision. HER 2.23(c) states that where the decision of the hearing examiner is to remand for the preparation of a new departmental decision, the hearing examiner's jurisdiction is terminated.
Nowhere, however, does Hettick address HER 2.3 (b), even though it was discussed in the respondent's brief.
Subsection (b) explicitly provides for the type of remand which the hearing examiner made in the present case. Where the hearing examiner's decision is to remand a matter to the department for additional information, analyses, or other material, subsection (b) provides that the examiner shall retain jurisdiction in order to review the adequacy of that information, analysis, or material. The rule requires that the examiner expressly retain jurisdiction, and specify what information, analysis, or other material is to be provided. Subsection (b) further requires that copies of the information and material shall be provided to each party to the proceeding, and that the parties shall have an opportunity to review, comment upon, and submit rebuttal to the information and analysis. At the discretion of the examiner, the hearing may be reopened following such submittal.
HER 2.23(b).
HER 2.23(b).
HER 2.23(b).
HER 2.23(b).
The hearing examiner faithfully followed the requirements of HER 2.23(b). She remanded to the director, requiring the preparation of an acoustical study. In doing so, she specifically retained jurisdiction over the matter. The remand required the director to review the results of the study and determine whether additional measures would be required. The director, in turn, submitted her review and recommendations. There is no indication that Hettick requested that the hearing be reopened, but both parties availed themselves of the opportunity to comment. Only then did the examiner issue her final decision.
Hettick's reliance on subsection (c) is misplaced. Subsection (c) applies to situations where the hearing examiner remands for a new departmental decision. The hearing examiner in the present case remanded for additional information. This partial remand entailed no new departmental decision, and the examiner properly retained jurisdiction over the matter.
HER 2.23(c.)
SMC 23.76.022 provides explicit authority for a hearing examiner to affirm, reverse, remand, or modify a director's decision. Furthermore, HER 3.18 specifically states that a hearing examiner's decision may modify or remand the department's decision.
SMC 23.76.022(C)(10).
HER 3.18(b).
This case mirrors Boehm v. City of Vancouver. In Boehm, a hearing examiner conducted public hearings on a proposed gas station development, then kept the record open for additional public comment. In response to the comment, the developer conducted a traffic study, and agreed to mitigate the impact of increased traffic. The examiner then approved the project, subject to the mitigation conditions. The appeals court affirmed the examiner's decision.
111 Wn. App. 711, 47 P.3d 137 (2002).
Boehm, 111 Wn. App. at 715.
Boehm, 111 Wn. App. at 715.
Here, the examiner kept the record open and remanded to the director for an acoustical study. The examiner then approved the development subject to certain mitigation conditions as recommended by the director of DPD.
Hettick's appeal focuses on his contention that the examiner acted outside her jurisdiction. To prevail, Hettick must establish either that the hearing examiner made a mistake of law, that there was insufficient evidence to support the decision, or that the decision was clearly erroneous. He fails on all counts.
McGuire, 144 Wn.2d at 647.
We hold that the examiner's remand and modification of the director's decision were entirely within her authority under the Seattle Municipal Code and the Hearing Examiner Rules of Practice and Procedure.
Respondents have requested attorney fees. RCW 4.84.370 provides that attorney fees shall be awarded on appeal to the prevailing party in a land use case if the prevailing party on appeal prevailed before the local government, and in all prior judicial proceedings. 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. An award of reasonable attorney fees and costs to the prevailing party is mandatory.
RCW 4.84.370(1)(a), (b).
Moss v. City of Bellingham, 109 Wn. App. 6, 30, 31 P.3d 703 (2001).
As the prevailing party, the respondents are hereby awarded reasonable attorney fees and costs.
AFFIRMED.
Dwyer, J., Grosse, J., Concur.