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Edwards v. County of Okanogan

The Court of Appeals of Washington, Division Three
Jan 16, 2001
No. 18440-4-III (Wash. Ct. App. Jan. 16, 2001)

Opinion

No. 18440-4-III.

Filed: January 16, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Okanogan County, No. 98-2-00057-2, Hon. John G. Burchard Jr, March 30, 1999, Judgment or order under review.

Counsel for Appellant(s), Don L. Anderson, Attorney At Law, P.O. Box 1130, Okanogan, WA 98840-1130.

Counsel for Respondent(s), Peter R. Goldman, WA Forest Law Center, 615 2nd Ave. Ste. 360, Seattle, WA 98104.

Toby Thaler, Attorney At Law, 615 2nd Ave. Ste. 360, 705 2nd Ave. 12th Floor, Seattle, WA 98104.


Okanogan County issued (1) a conditional use permit for a snowmobile training course and (2) a mitigated determination of non-significance (MDNS). Neighboring landowners appealed these decisions to the Okanogan County Superior Court pursuant to chapter 36.70C RCW, the Land Use Petition Act (LUPA). The court reversed both decisions. Claiming the court failed to follow the procedural and statutory requirements of LUPA, the County appeals. We affirm. Peter and Patti DeLange applied for a conditional use permit (CUP) to operate a snowmobile training course on their property in Okanogan County.

The County issued a determination of non-significance (DNS) under the State Environmental Policy Act (SEPA), chapter 43.21C RCW, for the CUP. After receiving several negative comments, the DNS was withdrawn. Thereafter, Okanogan County issued an MDNS under SEPA for the CUP. Neighboring landowners appealed the MDNS to the Board of County Commissioners, which affirmed. On January 20, 1998, the Okanogan County Board of Adjustment approved the CUP. Neighboring landowners then appealed the issuance of the MDNS and the CUP to superior court under LUPA. Declaring it null and void, the court reversed the approval of the CUP. This appeal follows.

The County claims the superior court erred by reversing the Board's issuance of the CUP. LUPA is the exclusive means of judicial review of land use decisions. RCW 36.70C.030(1); Tugwell v. Kittitas County, 90 Wn. App. 1, 7, 951 P.2d 272 (1997). By petitioning under LUPA, a party seeks judicial review by asking the superior court to exercise appellate jurisdiction. Chaney v. Fetterly, 100 Wn. App. 140, 142-43 n. 2, 995 P.2d 1284, review denied, 11 P.3d 824 (2000). Under RCW 36.70C.130, an appellate court may grant relief from a land use decision if the petitioner carries its burden in establishing one of six standards of relief:

(a) The body or officer that made the land use decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless; (b) The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise; (c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court; (d) The land use decision is a clearly erroneous application of the law to the facts; (e) The land use decision is outside the authority or jurisdiction of the body or officer making the decision; or (f) The land use decision violates the constitutional rights of the party seeking relief.

Westside Business Park, L.L.C. v. Pierce County, 100 Wn. App. 599, 602, 5 P.3d 713 (citing RCW 36.70C.030(1)), review denied, 141 Wn.2d 1023 (2000). Appellate courts apply these standards in conducting its review based upon the record created before the hearing examiner. Id. at 602-03.

The superior court, acting in its appellate capacity, considered the record before the Board. After considering this record, the superior court reversed the decision issuing the CUP. In so doing, it determined the Board erroneously interpreted the law and erroneously applied the law. It also found the Board used an unlawful procedure in rendering its decision.

Finally, the court ruled that the Board's decision violated the petitioning landowners' constitutional rights. Each is a valid reason to grant relief under RCW 36.70C.130.

The County nonetheless contends the superior court's conclusions lack the specificity to determine what legal standards under RCW 36.70C.130 the court applied in rendering its decision. Even the most cursory reading of the court's conclusions of law and order belies the County's contention.

The County also argues that the superior court misapplied the legal standard under SEPA in reviewing the MDNS because SEPA and LUPA are different statutes, so the legal standards for review of those respective decisions are different. But SEPA determinations and substantive land use determinations are combined for judicial review. RCW 43.21C.075(6)(c).

The court's ruling reversing the land use decision specifically sets forth which of the six factors from RCW 36.70C.130 that it applied.

The County makes no argument on the merits or the facts as to why the Board's land use decision should be reinstated. Rather, it argues only that procedural and legal errors require reversal and reconsideration. The superior court's review of the Board's land use decision was limited as set forth in RCW 36.70C.130. Procedurally, the court conducted the proper review. In order for us to consider the court's decision on the merits, the County was obligated to make substantive arguments why the Board's decision should be reinstated. See Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 4 P.3d 123 (2000). It failed to do so. The only error claimed by the County on appeal was procedural and related to how the superior court conducted its LUPA review. Because no procedural error exists, the superior court's order is affirmed.

The County also claimed that the petitioning landowners failed to make any specific assignments of error in the land use petition and the petition did not clearly identify which LUPA standards should be applied. The petition, however, met all the requirements under RCW 36.70C.070.

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.

WE CONCUR: BROWN, A.C.J., EITZEN, J.P.T.


Summaries of

Edwards v. County of Okanogan

The Court of Appeals of Washington, Division Three
Jan 16, 2001
No. 18440-4-III (Wash. Ct. App. Jan. 16, 2001)
Case details for

Edwards v. County of Okanogan

Case Details

Full title:CURTIS EDWARDS, SHEELA McLEAN, DALE BENNETT, CONSTANCE MEHMEL, DON…

Court:The Court of Appeals of Washington, Division Three

Date published: Jan 16, 2001

Citations

No. 18440-4-III (Wash. Ct. App. Jan. 16, 2001)