Opinion
No. 25243-4-III.
November 13, 2007.
The Land Use Petition Act (LUPA), chapter 36.70C RCW, authorizes judicial relief from a land use decision if the party challenging the of the whole record before the court. RCW 36.70C.130(1)(c). The issue in decision proves it is not supported by substantial evidence when viewed in light Ponderosa Neighborhood Association's (PNA) appeal is whether the Spokane County hearing examiner's findings of fact and conclusions of law granting preliminary plat approval to Cameron Associates, on behalf of the property owner, are supported by the evidence. We hold that the findings and conclusions are supported, and affirm the decision of the superior court.
FACTS
On June 23, 2004, Cameron Associates, on behalf of the property owner Lanzce Douglass (collectively applicant), submitted an application for preliminary plat approval to subdivide 27.7 acres of property located at the southeast corner of 44th Avenue and Schafer Branch Road in Spokane County. The proposal was to create 100 lots for single family homes with 9.4 acres of common space in a development to be known as Ponderosa Ridge. The property is zoned low density residential (LDR) and lies entirely within the Spokane County urban growth area. The site is vegetated with ponderosa pine trees, aspen trees and a wide range of shrubs, grasses and plants. A draw bisects the property in a north to south direction and contains a seasonal stream with a channel width of approximately 8 to10 inches. A number of rock outcroppings are also found on the property.
On July 22, the Spokane County Department of Building and Planning (planning department) advised the applicant that the preliminary plat application was subject to the LDR zone and would have to be revised.
On April 11, 2005, the applicant filed a revised preliminary plat application. On May 24, the planning department issued a determination of nonsignificance pursuant to the State Environmental Policy Act (SEPA), chapter 43.21C RCW. On June 7, PNA and the City of Spokane Valley separately appealed the planning department's determination of nonsignificance (SEPA appeal).
On June 8-9, a public hearing was held on the preliminary plat application and the SEPA appeal. On August 5, the county hearing examiner issued findings of fact and conclusions of law approving the preliminary plat application subject to more than 70 conditions. The hearing examiner denied the SEPA appeal.
On August 29, PNA filed a LUPA petition in superior court requesting relief from the hearing examiner's decision. PNA argued that the record did not support the hearing examiner's findings of fact and conclusions of law. On March 14, 2006, the court denied the LUPA petition. PNA appeals.
ANALYSIS
A party seeking relief from a land use decision carries the burden of proving error under specific LUPA standards. RCW 36.70C.130(1). On appeal of an administrative decision, we stand in the same position as the superior court and review the entire record before the hearing examiner, including findings of fact and conclusions of law. N. Pac. Union Conference Ass'n of Seventh Day Adventist v. Clark County, 118 Wn. App. 22, 28, 74 P.3d 140 (2003). We must give substantial deference to both legal and factual determinations of the county hearing examiner, as the local authority with expertise in land use regulation. Timberlake Christian Fellowship v. King County, 114 Wn. App. 174, 180, 61 P.3d 332 (2002), review denied, 149 Wn.2d 1013 (2003).
PNA challenges the hearing examiner's decision as unsupported by substantial evidence. RCW 36.70C.130(1)(c). Substantial evidence is evidence of a sufficient quantity to persuade a fair-minded person of the truth or correctness of the decision. Benchmark Land Co. v. City of Battle Ground, 146 Wn.2d 685, 694, 49 P.3d 860 (2002). We view the evidence and any reasonable inferences in the light most favorable to the party that prevailed in the highest forum exercising fact-finding authority. Schofield v. Spokane County, 96 Wn. App. 581, 588, 980 P.2d 277 (1999). In this case, we review the record and inferences favorably to the applicant as the prevailing party before the hearing examiner. See Benchmark, 146 Wn.2d at 694.
A. Provisions to Protect Public Health, Safety and Welfare
PNA contends that the county failed to assure adequate provisions had been made to protect the public health, safety and welfare prior to approving the preliminary plat application. It asserts that the hearing examiner erroneously found and concluded that adequate provisions had been made for roads. Specifically, it argues that the hearing examiner erred by (1) concluding that the preliminary plat complied with county road standards for multiple access roads; (2) finding and concluding that the neighborhood could reasonably be evacuated in the event of a fire; and (3) finding that the evacuation study had been accepted by fire department officials and the county's engineering department.
PNA first argues that the hearing examiner's following findings of fact 136, 137 and 152 were erroneous:
136. The proposal has two (2) private road connections to 44th Avenue and one private road connection to Schafer Branch Road, provides direct access for some lots to 44th Avenue and Shafer Branch Road, and provides for future connections to the road system located to the east through two (2) private road connections to the adjacent preliminary plat proposal.
137. The proposal and adjacent preliminary plat provide adequate arterial access and local access road connectivity. Cumulative traffic impacts from such developments will not result in the capacity of such roads being exceeded. . . .
. . . .
152. The preliminary plat complies with secondary access requirements of paragraph 1.03(8) of the County Road Standards, since there are three (3) access routes out of the development for the lots in Phase One of the preliminary plat, and two (2) access routes out of the development for the lots in Phase 2. Once vehicles from the development reach 44th Avenue, other access routes become available to the north and east.
Administrative Record (AR) at 42, 45. PNA asserts that these findings ignore the fact that all identified access routes out of the development lead directly or indirectly to 44th Avenue — the only road that also serves as the sole access route into and out of a large portion of the Ponderosa neighborhood generally. It contends that approval of the proposed subdivision will result in 220 homes sharing 44th Avenue as their only access road and that the record before the hearing examiner was insufficient to find that adequate provisions had been made for access to the subdivision. It relies on Spokane County Standards for Road and Sewer Construction (SCS) to support its argument.
The preliminary plat proposes 179 new homes in addition to the 41 homes already existing in the general neighborhood.
SCS 1.03(8) states in relevant part:
When a subdivision has the cumulative effect of creating a total number of lots, parcels or tracts served by an access road equal to or greater than the number of units shown in the following table, the Sponsor shall provide an additional access road into the development to serve fire district vehicles. The location of the additional access road shall have the concurrence of the fire district. If the location and layout of a development, in the opinion of the fire district authorities, causes a concern for safety, an additional access road may be required.
An "access road" is defined as a road allowing "direct access to abutting lands and connections to the higher order systems. Access roads offer the lowest level of mobility and usually contain no bus routes. Access roads should be designed to discourage service to through-traffic movement." SCS 1.12(4). "Collector street systems," in contrast, "provide? both land access service and traffic circulation within residential neighborhoods and commercial and industrial areas. . . . [T]he collector street also collects traffic from local streets in residential neighborhoods and channels it into the arterial system." SCS 1.12(3).
Here, SCS 1.03(8) requires that the number of "access roads" in a subdivision correlate to the number of homes. There is no indication based on this section however that a collector road such as 44th Avenue has the same limitation as access roads. Moreover, the hearing examiner specifically considered SCS 1.03(8) and the traffic impact analysis (TIA) submitted by the applicant's traffic engineering consultant. This identified that 44th Avenue was the exclusive collector serving residential uses. Based on the TIA, the hearing examiner determined that "[t]he cumulative traffic generated by ambient traffic growth and background projects . . . was properly considered in the TIA." AR at 42 (finding of fact 133). PNA neither assigned error to these findings by the hearing examiner nor cited any evidence to the contrary that the hearing examiner failed to consider the traffic impacts on the sole collector road in the area. The evidence was substantial to support the hearing examiner's findings.
PNA next argues that the hearing examiner's following findings of fact relating to the evacuation of the proposed subdivision were not supported by substantial evidence:
141. The fire evacuation analysis contained in the TIA assumed a worst case scenario, that all homes in the Ponderosa area would be evacuated in a 30-minute time frame during a firestorm type event. The draft analysis was commented on by Fire District 8 staff, revised per Fire District 8 comments, and favorably received by Fire District 8 staff after its final revision. See TIA, and testimony of Todd Whipple. County Engineering also reviewed the evacuation analysis and found that the assumptions for the evaluation were conservative in nature and that acceptable levels of service would be maintained.
. . . .
143. On January 28, 2005, the TIA, and fire evacuation analysis contained therein, was finalized. The fire evacuation analysis concluded that with the assistance of emergency personnel, as would normally be the case during a significant fire event, an orderly flow of traffic and adequate level of service could be maintained at the intersections of Schafer/University Roads and Dishman Mica Road, Bowdish Road and Dishman-Mica Road, Schafer Road and Cimmaron Road, and Bowdish and Sands Road. The study also concluded that all other intersections in the Ponderosa area would function adequately during such evacuation, without the need for emergency personnel to direct an orderly progression of traffic.
. . . .
145. On April 22, 2005, the fire commissioners for Fire District 8 sent a letter to the County and City of Spokane Valley planning departments, advising that a typical traffic study, such as that prepared for the current project, is predicated on the "normal usage of the ingress and egress," and most likely does not consider the impacts of emergency situations or the cumulative impacts from development. The letter recommended that a comprehensive look be taken at the cumulative impacts from development in all areas of the district, with respect to ingress and egress. The fire commissioners' letter failed to acknowledge or understand that the fire evacuation analysis contained in the TIA considered both the impacts of emergency situations and cumulative impacts from development on ingress and egress in the Ponderosa area.
. . . .
150. Claude Wells, a retired deputy fire chief with County Fire District 9, with a consulting business in fire safety, testified for the applicant at the public hearing. Wells observed that the "worst case" fire evacuation analysis contained in the TIA was only one possible scenario for a firestorm event, but was useful in analyzing the adequacy of fire/emergency access for the Ponderosa area. Wells testified that even with impact of the proposal and other new development proposed in the area, the existing two accesses out of the area via Schafer Road and Bowdish Road, together with the new at-grade railroad crossing for fire/emergency vehicles located off Bates Road, would provide adequate fire access for the area; and that the proposal would likely act as a "firebreak" for existing development located east of the site. Wells found it unlikely that one of the two main accesses out of the Ponderosa area to Dishman-Mica Road would become blocked for any significant length of time during any required evacuation of the area.
151. The opinions expressed by Wells regarding the adequacy of fire access for the proposal were reasonably based on Wells' expert fire experience, the fire evacuation analysis contained in the TIA, the lessons learned by local fire district personnel from the 1991 firestorm and subsequent fire events, County fire access and building code standards applicable to new development, the fire prevention measures and restrictive covenants planned for development of the proposal, and the proposed hydrant and water plan for the proposal. Such opinions were supported by the testimony of Todd Whipple, P.E., and together establish that fire access for the current proposal, the adjacent preliminary plat proposal and the Ponderosa area are adequate.
. . . .
155. Because fire access for the proposal is adequate, and County Engineering provided no basis for calculating the $500 per lot fee for construction of an at-grade railroad crossing in the vicinity, there is no regulatory basis under SEPA, RCW 58.17.110, or the impact fee provisions contained in chapter 82.02 RCW to impose the fee on the applicant.
. . . .
199. The preliminary plat applications were submitted at the same time in the County and the City. The TIA, the concept drainage plan, Habitat Management Plan, Cultural Resources Survey, water plan, sewer plans, fire evacuation plans, geo-hazard evaluation, and DNS take into account the infrastructure needs for, and cumulative impacts from, both preliminary plat proposals. This does not preclude SEPA review by the City for the adjacent preliminary plat proposal. The City retains authority over any permits needed to extend public sewer and install a pedestrian path along 44th Avenue inside the City for the current preliminary plat, or adjacent preliminary plat proposal.
AR at 43, 44-45, 51. Although PNA assigns error to these findings of fact, it contends only that the traffic study performed by the applicant's expert, Todd Whipple, was insufficient. Specifically, it argues that because Mr. Whipple had no experience in conducting or designing such studies and provided no verifiable data to support his claims, there was no evidence based on the study that the neighborhood could be evacuated in 30 minutes, and the study underestimated the number of cars that would need to evacuate the neighborhood. PNA also asserts that the hearing examiner should not have "summarily dismiss[ed]" Fire District 8's rejection of the evacuation study analysis. Br. of Appellant at 22.
At the public hearing, Mr. Whipple testified that he was the licensed engineer who performed the TIA. Mr. Whipple said that prior to conducting the study, he contacted Spokane County and the City of Spokane Valley and held a public meeting concerning traffic issues. He said that after completion of the study, he submitted the study to both jurisdictions. But because neither jurisdiction had experience with evacuation plans, he was put into contact with Fire District 8's interim chief, who in turn referred him to Lieutenant Tim Archer, Fire District 8's fire prevention officer. He testified he was provided documents from Lieutenant Archer to help him better understand some of the issues associated with evacuation from the Ponderosa neighborhood as a result of the issues associated with the 1991 firestorm, but that there was no standard or evacuation model that could be used to address every issue that might arise during an evacuation situation.
Mr. Whipple testified that he worked at length with Lieutenant Archer on the study, taking into account suggestions made by him. Mr. Whipple also said that during the course of the study, he received a memo from Fire District 8 asking him to consider using 5,000 to 6,000 cars as the model for the number of cars evacuating the area. Mr. Whipple said that he then used 7,200 cars as the model for the evacuation study.
There is nothing in the record to indicate the hearing examiner summarily dismissed Fire District 8's rejection of the evacuation study. To the contrary, Mr. Whipple spent several hours with Lieutenant Archer of Fire District 8 creating and editing his evacuation model. Additionally, Chief Bill Walkup indicated that the fire district did not have written evacuation plans for specific neighborhoods, and that the responsibility for evacuation resided primarily with law enforcement agencies. He stated the fire district did not envision evacuating the entire area, but rather would have residents shelter in one place or move to an area of refuge. Mr. Whipple also testified that Lieutenant Archer accepted the evacuation analysis. PNA did not assign error to the hearing examiner's findings on this issue.
The record also establishes there was no actual requirement that the neighborhood be evacuated within a 30-minute time period. According to Mr. Whipple, Fire District 8 requested that he do an analysis to see if the area could be evacuated within 30 minutes. Mr. Whipple indicated that the area could be evacuated with the assistance of emergency personnel within such a time frame, and that this analysis was accepted by the Spokane County Division of Engineering (county engineering division). Based on this record, we conclude the hearing examiner's findings of fact on this issue were supported by the evidence.
Relying on the hearing examiner's findings of fact 141 and 151, PNA also argues that the hearing examiner erred by finding that the evacuation study had been reviewed and approved by Fire District 8's staff and by the county engineering division. It argues the evidence was insufficient for the hearing examiner to arrive at such conclusion.
However, Mr. Whipple testified at length at the public hearing as to his discussion with Lieutenant Archer of Fire District 8 for the purpose of his evacuation study. Lieutenant Archer, in his capacity as the district's fire prevention officer, provided Mr. Whipple with information related to the 1991 firestorm, including evaluating the problems that arose during that time. Mr. Whipple said he revised the evacuation model per Lieutenant Archer's recommendations and that the lieutenant eventually accepted the evacuation analysis. The evacuation model was also accepted by the county engineering division.
The only evidence in the record that fire district officials did not accept the evacuation analysis was contained in a letter from the district's Board of Fire Commissioners. AR at 883. The letter indicated that citizens from the Ponderosa neighborhood had expressed concerns about the traffic and evacuation and that the district encouraged a comprehensive look at the cumulative impacts from development in all areas of the district. But, as evidenced in Mr. Whipple's traffic analysis, the cumulative impacts concerning traffic and evacuation were identified and analyzed in the TIA. There was substantial evidence to support the hearing examiner's findings that the evacuation study was ultimately accepted by fire district officials and the county engineering division.
B. Habitat and Wildlife Critical Areas
PNA contends the hearing examiner erroneously determined that adequate provisions had been made to protect habitat and wildlife critical areas. Specifically, it argues the hearing examiner erred in (1) concluding that the applicant's Habitat Management Plan (HMP) met county code; (2) finding and concluding that the proposed subdivision would not significantly impact priority habitat or species; and (3) concluding that implementing the Washington Department of Fish and Wildlife's (WDFW) recommendations would preclude a reasonable use of property.
1. Habitat Management Plan
PNA contends the hearing examiner's following findings of fact 103 and 104 relating to the HMP were erroneous:
PNA also assigns error to finding of fact 199 as quoted in section A, infra.
103. The County Department of Building and Planning accepted the Habitat Management Plan. See Staff Report. The applicant's wildlife biologist, Larry Dawes, submitted rebuttal letter and testified at the public hearing in support of the Habitat Management Plan. This included a vegetative planting plan to mitigate the impact of the stormwater detention ponds placed in the common open space in the preliminary plat. Such information, along with the Habitat Management Plan, establish that the highest quality habitat for deer, birds and other wildlife habitat will be preserved on the site and adjoining 17-acre parcel to the east; and that the 100-foot wide corridor containing the seasonal stream, together with the open space connections to Schafer Branch Road, and the wildlife habitat preserved in the south portion of the preliminary plat, provide an adequate travel corridor for deer and other wildlife that connects to the larger wildlife habitat areas located to the north, south and west. The applicant advised that the homes developed on lots abutting the west side of the 100-foot buffer containing the seasonal stream would be physically located at least 220 feet from the homes developed on the lots abutting the east side of the 100-foot buffer.
104. The information submitted by Larry Dawes establishes that the revised preliminary plat map was designed in accordance with the recommendations of the Habitat Management Plan; the revised stormwater plan for the preliminary plat, mitigated by the proposed vegetative planting plan, and the geohazards on the site, will not adversely impact priority wildlife habitat; there is an insufficient basis to require the applicant to prepare a bird study for the site; the preliminary plat will not impact a threatened or endangered species on the site; the preliminary plat will not have any significant adverse impact on a priority wildlife habitat or species; and the Habitat Management Plan meets the requirements of the County Critical Areas Ordinance and relevant policies of the Comprehensive Plan. Also see testimony of Michael Nilsson, P.E.
AR at 37. PNA argues that the HMP prepared by the applicant contained numerous violations of the Spokane County Code (SCC) 11.20, the "Critical Areas Ordinance." Specifically: (1) the HMP was neither based on the "Management Recommendations for Washington's Priority Species" nor in consultation with a habitat biologist with WDFW; (2) the HMP did not mention, analyze or mitigate the impact on two priority areas of the proposed subdivision (riparian and urban natural open space areas) and made no mention of protection or mitigation for the important wildlife breeding or feeding function within these two priority areas, namely, whether any of the buck brush stands would be saved, the existence of the nearby Iller Creek Conservation or Dishman-Hills Natural area, and the importance of this site as the wildlife corridor between the two conservation areas; and (3) the HMP provided no analysis about how much white-tailed deer winter range would remain in the proposed subdivision.
The record belies these assaults. It reflects that WDFW requested that the HMP be prepared in conjunction with the applicant's preliminary plat/PUD application. The applicant's HMP was drafted and submitted by biologist Larry Dawes. It addressed comments made by WDFW related to old growth/mature forests on site and a buffer to protect an intermittent stream. Moreover, there was much testimony at trial related to the HMP and the hearing examiner questioned these witnesses at length.
Mr. Dawes testified that maps of the site identified the existence of an elk habitat, white-tail deer habitat, open space and riparian habitat. He said that the purpose of his study was to determine the presence of the existing habitat and the extent to which the habitat would be used on any of the existing species on site. Mr. Dawes said that he received comments from WDFW and the Department of Ecology on the HMP. He said he went item by item through the letters and addressed their comments. Mr. Dawes said that WDFW went to the site before he did his HMP and sent him letters identifying its concerns. As a result, the HMP addressed the preservation of open spaces, buffers, preservation of critically important plants and trees, i.e. aspens, in the area and limitations on proposed access. Mr. Dawes said that based on his experience, he did not see any indication of threatened, endangered, candidate, monitored or sensitive species on site and that he did not see any habitat on the property that made it unique or different from the surrounding neighborhoods.
The hearing examiner also heard testimony from neighbors concerning the HMP and wildlife/plant species on the site. This testimony identified the concerns of various biologists and the comments from WDFW and Department of Ecology (DOE) and addressed issues such as the buck brush and deer on site. The testimony indicated that letters from WDFW and a biologist concluded that the preliminary plat proposal had a detrimental effect on wildlife and that the property provided a key connection between conservation areas such as Iller Creek and Dishman Hills. The testimony also pointed out deficiencies in the applicant's HMP. The DOE, the Dishman Hills Natural Area, the Spokane Audubon Society and others with training in wildlife biology also submitted letters objecting to the HMP and/or the impact that the density housing would have on the wildlife habitat. Clearly the HMP was a hotly contested issue for both sides, with much conflicting evidence. This court, however, must defer to the hearing examiner's factual determinations, including credibility determinations. Under the substantial evidence test, if there is conflicting evidence, then the reviewing court need only determine whether the evidence most favorable to the responding party supports the challenged decision. See In re Estate of Kessler, 95 Wn. App. 358, 369, 977 P.2d 591 (1999).
The hearing examiner here considered the reports, testimony and letters of both parties, but found Mr. Dawes to be more credible. Moreover, the hearing examiner's decision addressed PNA's concerns by imposing conditions related to habitat management prior to final plat approval. The hearing examiner's findings were supported by substantial evidence.
PNA next argues that the hearing examiner erred in finding and concluding that the proposed subdivision would not significantly impact priority habitat or species. It specifically argues the HMP's proposal for a 100-foot wildlife corridor was meaningless and that eight wildlife experts and organizations visited the site and found the HMP inadequate for various reasons. It argues that the hearing examiner's conclusions to the contrary were erroneous.
But, there was substantial evidence in the record that reflects the 100-foot wildlife corridor was not "meaningless." AR at 725-30. In fact, the wildlife experts and organizations only indicated that a 25 to 50 foot corridor or buffer would be insufficient. According to the record, WDFW suggested a 150-foot buffer based on the fact that the stream located on the property qualified as a Type 4 stream. However, the planning department and Mr. Dawes concluded that the onsite stream qualified as a Type 5, which did not require any type of buffer area. Nonetheless, the HMP indicated that the stream should be protected as a wildlife travel corridor.
PNA also argues that the hearing examiner's finding of fact 102 was erroneous, because it concluded that implementing WDFW's recommendations would preclude a reasonable use of property. It argues the hearing examiner had no legal authority to review or decide whether the applicant was eligible for a "reasonable use exception" under the SCC and that no application for a reasonable use exception was submitted by the applicant. Finding of fact 102 states:
The preliminary plat would reserve over 37% of the site in common open space. The combined preliminary plat proposals for the site and the adjacent 17-acre parcel to the east would preserve approximately 27.5% of the combined sites in common open space. The letter submitted by Larry Dawes at the public hearing indicated that basing the buffer around the seasonal stream on a "noticeable break in slope," as recommended by WDOE, would eliminate development of the westerly two-thirds of the site. Preserving the aspen patches in the southeast portion of the combined sites, as recommended by WDFW, and preserving the extensive ceanothus shrub fields located in the southerly two-thirds of the east portion of the combined sites, as recommended by WDOE, would eliminate most of the remaining portion of the site, and much of the adjacent parcel, from development. At some point, such reservation of land eliminates "reasonable use" of the property. See paragraph 11.20.040B of County Critical Areas Ordinance.
AR at 36-37. According to SCC 11.20.040(b):
(1) Requirements. If an applicant for a development proposal demonstrates to the satisfaction of the director that application of the standards of this chapter would deny all reasonable use of the property, development as conditioned shall be allowed. The applicant shall pay a fee as determined by the board which may cover mailing and processing and submit documentation on forms provided by the department demonstrating all of the following to the satisfaction of the director:
(A) Applications of this chapter would deny all reasonable use of the property; and
(B) There is no reasonable use with less impact on the wetland, fish and wildlife habitat or geo-hazard area; and
(C) The requested use or activity will not result in any damage to other property and will not threaten the public health, safety or welfare on or off the property; and
(D) Any alteration to the wetland, fish and wildlife habitat or geo-hazard area is the minimum necessary to allow for reasonable use of the property; and
(E) The inability of the applicant to derive reasonable use is not the result of actions by the applicant in subdividing the property or adjusting boundary lines thereby creating the undevelopable condition after the effective date of the ordinance codified in this chapter.
(2) Decision. The director shall include findings on each of the evaluation criteria listed above in a written decision. The written decision shall be mailed to the applicant and adjacent property owners, including property owners across public rights-of-way or private easements. The written decision shall include conditions necessary to serve the purposes of the ordinance and shall provide an appeal procedure as contained in Section 11.210.030(i) of this chapter.
Although the hearing examiner cited to this provision in his findings of fact, there is no indication in the record that the applicant sought any type of reasonable use exception or that the hearing examiner granted the applicant such an exception. SCC 11.20.040(1)-(2) clearly requires an application be submitted for such an exception. There is nothing in the record, nor has PNA provided any citation for such, that the hearing examiner exercised any type of legal authority in reviewing or deciding whether the applicant was eligible for a reasonable use exception.
C. Provisions for Slope Stability
PNA contends the hearing examiner's findings of fact 110, 112, 113, 199 and 200 indicating that adequate provisions had been made for slope stability were erroneous. Specifically, it argues that the hearing examiner should not have accepted the applicant's geohazard evaluation for the following reasons: (1) the evaluation was not prepared by a qualified erosion specialist; (2) the evaluation did not disclose various geohazard soils on site; (3) the evaluation failed to include the evaluation of all soils that exhibit the characteristics of geologically hazardous areas; (4) the evaluation erroneously reported slopes on the site of up to 20 percent; (5) the STI Northwest, Inc. tests only evaluated the permeability of soils for stormwater filtration and test soils on the severely erodible slopes where development was planned; and (6) the applicant failed to provide sufficient information concerning the amount of grading that was to occur.
Finding of fact 199 is quoted in section A, infra.
The hearing examiner's findings of fact stated:
110. At the public hearing, the applicant advised that due to the revision of the water plan for the proposal, there will be no large retaining walls, significant grading or large scale movement of earth on the site resulting from site development; and cuts and fills would be balanced in the final plat. The applicant advised that more grading would be done for the project proposed east of the site in the City of Spokane Valley. See testimony of Cliff Cameron and Michael Nilsson.
. . . .
112. The geo-hazard report submitted by Michael Nilsson, P.E., on January 31, 2005 observed no evident signs of severe erosion on the site; noted that a majority of the erodible soils area would be left in open space and not developed; found that the soils on the site, based on soil tests done on the property, would have satisfactory workability and be adequately suited for subdivision development purposes such as utility, drainage and roadway construction; development in the area of erodible soils would not endanger public safety; and concluded that an erosion and sediment control plan prepared in accordance with best management practices and implemented during construction would help reduce the erosion potential.
113. The geo-hazard evaluation report could arguable have gone further in recommending erosion control measures during construction, particularly for the construction of housing. However, such concerns are addressed by County Engineering conditions of approval #23 and #24, which require a geotechnical investigation and mitigating measures for subsurface construction, in the event shallow bedrock or groundwater are located under the surface of the site; potential restrictions on basements and other subsurface construction; that the final plat dedication identify those lots where below grade construction is prohibited, and the preparation of a temporary erosion and sedimentation control plan prior to final plat approval. County Building and Planning condition of approval #19 requires the final plat to comply with the recommendations contained in the geo-hazard evaluation report. County Building and Planning condition #17 requires the final plat to comply with the County Critical Areas Ordinance.
. . . .
200. The environmental checklist, as supplemented by the County Department of Building and Planning, adequately considered the environmental impacts from the current preliminary plat. The DNS properly considered such impacts. The proposal, by itself, or in conjunction with the adjoining preliminary plat proposal, will not have more than a moderate effect on the quality of the environment.
AR at 38, 51-52. SCC 11.20.070(d)(2) states in relevant part:
A geo-hazard evaluation or feasibility report shall be prepared by a qualified landslide or erosion specialist and submitted with applications for preliminary plats. . . .
The geo-hazard evaluation shall document the extent and nature of geo-hazard on the subject property and shall provide mitigating measures and an assessment of geo-hazards associated with the proposal. A more detailed geo-hazard mitigation plan may be required at the time of building permit application or actual construction approvals.
Here, the applicant submitted a geohazard evaluation by Michael Nilsson for the site. The evaluation identified a geohazard area in the form of erodible soils in the western portion of the site, but noted the majority of this area was to remain open space and that appropriate erosion control measures should be implemented to minimize potential impacts. The evaluation found that such limited development planned in such a geohazard area would not endanger the health and safety of the general public. For the remaining portions of the site, the evaluation identified no evident signs of severe erosion.
At the public hearing, Mr. Nilsson testified that he was a civil engineer and that he reviewed the soils on site for purposes of the geohazard review. He said that he was aware of concerns from individuals about the steep slopes on the site, but that these areas were to be left undeveloped. He said that he missed one of the erodible soil types on the property, but that no development was planned there in any event.
PNA's argument relies on conflicting testimony in the record to support the view that the geohazard evaluation contained many deficiencies: namely, that soil scientist Daniel Burgard expressed concern that the evaluation did not discuss mitigating measures for construction on the erodible soils on the site. Hydrogeologist Erin Rudder also expressed concern about the adequacy of the soil testing.
Based on the conflicting evidence, the hearing examiner recognized that the geohazard evaluation was inadequate. The hearing examiner, however, found that this was resolved based on the conditions imposed by the county engineering division and the planning department requiring the final plat to comply with the recommendations of the geohazard evaluation report, requiring a geotechnical investigation and mitigating measures for subsurface construction, and requiring a temporary erosion and sedimentation control plan to be conducted to include, among other things, a grading plan.
The hearing examiner also reviewed conflicting evidence presented by the parties as to the slope degrees on site. PNA presented evidence that the site contained slopes that exceeded 30 percent while the geohazard evaluation identified slopes at 20 percent. The hearing examiner resolved this conflicting evidence by relying on the actual survey of the site, finding that a few small areas of the site contain slopes approaching 30 percent. The hearing examiner therefore recognized this deficiency of the geohazard evaluation. The findings are supported by substantial evidence.
D. Provisions for Drainage
PNA contends the hearing examiner erred in finding that adequate provisions had been made for drainage. It argues that although the applicant submitted three concept drainage proposals, the third revision violated the SCC and did not comply with the county's guidelines for stormwater management. It cites several examples of how the applicant's drainage proposal was inadequate, but concedes that the hearing examiner impliedly recognized each of these deficiencies in his decision. PNA argues that the fact that the hearing examiner imposed conditions on the applicant prior to final plat approval based on these deficiencies resulted in an incomplete preliminary plat application in violation of SCC 13.600.102(a).
The hearing examiner made detailed findings related to the applicant's drainage plan. Finding that the plan was deficient, the hearing examiner imposed conditions on the applicant related to the drainage system, which were requirements to final plat approval based on the recommendations from the county engineering division.
These conditions do not result in an incomplete preliminary plat application in violation of SCC 13.600.102(a), which states in pertinent part:
The purpose of the technical (project) review process is to review complete applications for consistency and conformance with applicable development regulations prior to proceeding to hearing or rendering project permit decisions, and to assure that review agencies have sufficient information to analyze a proposal and make recommendations at hearings or other forums.
Nothing in this section prevents the hearing examiner from placing relevant conditions on final plat approval. It only requires that an application be complete to assure that reviewing agencies have sufficient information to analyze a proposal prior to proceeding to a hearing or rendering decisions. Moreover, this was the hearing examiner's conclusion, and we must give deference to the local authority's interpretation of code provisions within its expertise. See Pinecrest Homeowners Ass'n v. Cloninger Assocs., 151 Wn.2d 279, 290, 87 P.3d 1176 (2004).
PNA also contends that the hearing examiner erred in approving a stormwater plan that allowed the removal of native vegetation within a wildlife corridor and by concluding without proper expert analysis that the revised stormwater plan would not adversely impact wildlife habitat.
PNA assigns error to findings of fact 103, 104 (discussed in section B) and 115. Finding of fact 115 states:
County Engineering accepted the revised conceptual drainage report submitted for the project on June 6, 2005, subject to the acceptability of placement of the drainage facilities within the riparian buffer, based on input from the applicant's wildlife biologist and the WDFW. Such condition was submitted before Larry Dawes, the applicant's wildlife biologist, submitted a vegetative planting plan for the detention ponds proposed in the common open space in the proposed development. County Engineering condition of approval #32 requires the natural location of the drainage system on the site to be preserved.
AR at 39.
We find nothing in the record to establish that the hearing examiner approved a stormwater plan that allowed for the removal of native vegetation within the wildlife corridor. To the contrary, the hearing examiner imposed conditions to final plat approval, relying on a letter from Mr. Dawes, and requiring that the final plat comply with the recommendations of the HMP. Mr. Dawes's letter to the hearing examiner, which was identified in the hearing examiner's conditions to final plat approval, specifically proposed that stormwater drainage/detention ponds in the designated habitat areas be planted with native grasses and dense trees and shrubs in order to create a wildlife habitat. The letter indicated that Mr. Dawes would prepare a vegetation planting plan for the ponds and that the native grasses should be allowed to grow in the pond without any mowing, but that replanting might be necessary several years in the future to ensure continued functioning of the pond. The record does not support PNA's contention that the hearing examiner erroneously allowed the removal of native vegetation from the drainage ponds/wildlife corridor.
E. Provisions for Water Supply
PNA contends the hearing examiner erred in the following findings of fact 156, 157, 158, 159 and 199:
Finding of fact 199 is quoted in section A, infra.
156. The Certificate of Water Availability form completed by County Water District #3 on June 17, 2004 certifies that public water is available to serve the preliminary plat and the applicant's adjacent proposal to the east. This certification indicates that the water system has a current state permit allowing the number of water taps requested (179), the proposed development is consistent with the water purveyor's state approved water system plan, the water system is able to provide water in conformance with minimum levels of service below elevation 2220 feet, and that water service above such elevation will require a booster pump and reservoir. The County Department of Building and Planning certified on such form that the proposal met concurrency requirements for water service.
157. Between February and March of 2005, the applicant's consulting engineers worked with County Water District #3 staff to devise a revised water plan to serve lots in the applicant's two projects located above elevation 2220 feet. The revised plan includes installation of a booster pumping station, but not a reservoir, to serve lots above elevation feet; with some allowance for grading to reduce the elevation of lots reasonably close to elevation 2220 feet to elevation 2220, which lots can then be served by the district's current water distribution system. There would be no massive grading down of the lots located above elevation 2220 feet, as originally contemplated by the applicant. See appendices 22-24 of Exhibit A, and testimony of Michael Nilsson, P.E.
158. The revised water plan will meet the fire flow, hydrant spacing and other water supply requirements of Water District #3 and local fire districts. There is no evidence in the record that the revised water plan would adversely affect the water system currently serving the existing properties located along Schafer Branch Road
159. The preliminary plat, as conditioned, complies with the water concurrency requirements of the County Phase 2 Development Regulations.
AR at 45-46, 51.
PNA argues the preliminary plat should not have been approved without proof of adequate potable water for all homes. It asserts that the applicant's water plan was approved with almost one-third of the proposed homes to be located above 2,220 feet. It argues the hearing examiner's findings were in error because the Certificate of Water Availability indicated that water could not be provided above 2,220 feet, thus violating SCC 12.400.116.
According to SCC 12.400.116:
The director shall provide a written report and recommendation to the hearing examiner, recommending if appropriate provisions are made for, but not limited to, the public health, safety, and general welfare, for open spaces, drainage ways, streets or roads, alleys, other public ways, transit stops, potable water supplies, sanitary wastes, parks and recreation, playgrounds, schools and schoolgrounds, and shall consider all other relevant fact[s] including sidewalks and other planning features; and whether the public interest will be served by the subdivision and dedication.
PNA misreads the record. The Certificate of Water Availability did not state that water could not be provided to homes located above 2,220 feet. Instead, the certificate stated: "The water system is willing and able to provide water, in conformance to minimum levels of service, as requested at this time for elevations below 2220'. Water service above this elevation will require booster pump and reservoir." AR at 105.
Moreover, Mr. Nilsson testified at the public hearing that the water plan for the proposed project could consist of two systems with the dividing line being at the 2,220 foot elevation. Mr. Nilsson said that the lower system (below 2,220 feet) would connect directly to the water district's distribution system while the upper system (above 2,220 feet) would be on a pressure booster station. Mr. Nilsson said the decision to use booster pumps was in response to the water district's recommendations. He testified that these requirements on the site's water system were to address inadequate water pressure to elevations above 2,220 feet. He said that the water district requested a preliminary plan outlining the proposed methods for achieving water service to the development and that he knew of no problems with achieving these design requirements from the water district. Mr. Nilsson also stated that the fire district's requirements of 1,000 gallons per minute at 20 PSI for fire water flow would be met, and that there were no other technical requirements identified by the fire district relating to water supply that were not met.
Based on the evidence and testimony, the hearing examiner's findings that water service could be provided to homes above 2,220 feet in elevation was supported by substantial evidence.
F. Attorney Fees
The applicant requests attorneys fees on appeal pursuant to RCW 4.84.370. The prevailing party on appeal of a land use decision is entitled to its attorneys fees if it also prevailed before the agency and in the superior court. RCW 4.84.370(1); Baker v. Tri-Mountain Res., Inc., 94 Wn. App. 849, 854, 973 P.2d 1078 (1999). The statute states in pertinent part:
Appeal of land use decisions — Fees and costs. (1) . . . [R]easonable attorneys' fees and costs shall be awarded to the prevailing party or substantially prevailing party on appeal before the court of appeals . . . of a decision by a county . . . to issue, condition, or deny a development permit. . . . 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 . . .; and
(b) The prevailing party on appeal was the prevailing party or substantially prevailing party in all prior judicial proceedings.
Here, the applicant prevailed before the county and in the superior court. Therefore, subject to the provisions of RAP 18.1, we award the applicant reasonable attorneys fees on appeal.
CONCLUSION
Under the relevant LUPA standards, PNA has not met its burden of proving it is entitled to relief from the hearing examiner's decision. Accordingly, we affirm, and award attorneys fees to the applicant.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and KULIK, J., concur.