Clark v. City of Bainbridge Island

PAUL and JENNIFER CLARK, Respondents, v. CITY OF BAINBRIDGE ISLAND, acting through its Department of Planning and Community Development, _Appellant.

No. 54370-2-II

Court of Appeals of Washington, Division 2

August 10, 2021

UNPUBLISHED OPINION

LEE C.J.

Paul and Jennifer Clark^[1] bought an undeveloped piece of property on Bainbridge Island, with the intention of building a single family home. The Clarks obtained a vegetation management permit (VMP) from the City of Bainbridge Island to clear a portion of the property. Later, the City revoked the VMP because the Clarks had overcleared the property. A hearing examiner affirmed the revocation of the VMP because the total amount of clearing on the Clarks' property exceeded the clearing limit in the VMP. On appeal of the hearing examiner's decision, the superior court reversed the hearing examiner. The City appeals the superior court's order reversing the hearing examiner's decision that affirmed the VMP revocation.

We hold that the hearing examiner's application of the terms of the VMP to the facts was clearly erroneous. Therefore, we reverse the hearing examiner's decision and remand to the hearing examiner to reconsider the revocation of the VMP.

FACTS

The Clarks own a 2.34 acre lot on Bainbridge Island identified as tax parcel #282502 035-2008. The property is zoned R-0.40 for residential use. The Clarks planned to build a single family home on the property.

The Clarks obtained two permits from the City that are at issue in this appeal.^[2] On March 2, 2016, the Clarks obtained a clearing permit to remove "4-5 significant trees and some vegetation in preparation for future development." Administrative Record (AR) at 175. The clearing permit contained the following, relevant, conditions:

Amount of timber removed shall not exceed 5000 board feet pursuant to BIMC 16.18.030.

Total area of disturbance shall not exceed 7000 square feet.

....

No construction activities or installation of permanent roadways or structures is authorized by the approval of this permit application.

....

No vegetation removal beyond that described on the application form provided by the applicant is approved.

AR at 175. The permit application designated the tree removal in order to "get the property ready for a driveway and well." AR at 168.

On March 9, 2016, the Clarks applied for a VMP. The purpose of the VMP was to "remove trees [and] stumps in order to prepare land for well, septic, and house." AR at 11. The City approved the Clarks' VMP. The VMP included the following conditions:

1. A separate building permit will be required for the construction of any structures, buildings, roadways driveways or utilities on this site.

2. This approval extends to the clearing of vegetation within the "Revised Garden Area," "Haul Route," and homesite area represented on the revised site plan submitted and date stamped July 12, 2016 (included as "Attachment B" of staff report).

....

4. Total clearing under this approval shall not exceed 20 000 square feet of area.

AR at 40. The July 12, 2016, site plan showed a specific yard/garden area, a house, and a haul route between the two areas. The proposed area to be cleared on the site plan was 17, 000 square feet.

On October 6, 2016, the City revoked the Clarks' VMP.

The Clarks appealed the decision revoking the VMP. A public hearing was held on the Clarks' appeal on April 26, 2017. Following a hearing, the hearing examiner made the following findings of fact:

11. The VMP was revoked by the City on October 6, 2016, with a followup [Stop Work Order] issued shortly thereafter. While potential additional compliance problems were identified in the course of review, the primary basis for the revocation was a determination that the appellants had greatly exceeded the 20, 000 clearing limit imposed by the permit. . . .

12. The October 25, 2016, survey showed a total area of clearing on the Clark property of 33, 278 square feet, with 8321 square feet of the total attributed to the initial clearing permit. These figures were not challenged by the appellants and are, indeed, the only indisputably reliable clearing figures in the record. A 2012 aerial photo upon which the GPS survey has been overlaid shows the entire cleared area to have been densely forested prior to disturbance.

13. Mr. Clark contended that the 20, 000 square feet total of clearing contemplated by the July 13, 2016, VMP was understood by both himself and the City to be in addition to the 7000 square feet of disturbance previously authorized by the March 2, 2016, clearing permit, thus creating a total authorization for 27, 000 square feet of site clearing. Other than a few isolated phrases that arguably might support multiple interpretations, the record as a whole supports a finding that the City consistently intended the 20, 000 square foot limit to apply to the project as a whole and tried to communicate that understanding to Mr. Clark.

AR at 243-44.

The hearing examiner concluded that the Clarks violated the VMP:

Since the undisputed evidence is that the Clarks cleared 33 278 square feet of forest vegetation, exceeding the maximum legally permissible amount by a rather egregious 12, 892 square feet, the City's revocation of the VMP was based on a plain violation of the permit's conditions and thus fully warranted under BIMC 16.22.097.A(2).

AR at 246. The hearing examiner also concluded that the Clarks violated the scope of the VMP that was issued based on the July 12, 2016, site plan:

Finally, one of the basic rules of the land use permitting game is that the scope of an applicant's approval is limited to the development actually submitted for review. The Examiner is aware of no legal authority supporting the proposition that an applicant who has requested and received approval for Proposal A has a right to build a larger Proposal B simply because it is possible to read a permit condition expansively to justify a larger project. But that is precisely what Mr. Clark is seeking through this appeal. The proposal described in his environmental checklist entails 17, 000 square feet of clearing, as does the proposal depicted on his revised site plan approved by the City. Mr. Clark now argues, however, that he is entitled to at least 27, 000 square feet of clearing because it is possible to read the VMP condition no. 4 - in complete isolation from his application, checklist, site plan, and the other permit conditions - as creating a new and bigger development grant. This can only be regarded as a frivolous contention.

AR at 247.

The Clarks filed a motion for reconsideration. The hearing examiner denied the Clarks' motion for reconsideration but modified certain findings of fact in the decision that are not relevant to this appeal.

The Clarks filed a petition for review of the hearing examiner's decision under the land use petition act (LUPA), chapter 36.70C RCW. The superior court granted the Clarks' LUPA petition and reversed the hearing examiner's decision. The superior court ruled that the hearing examiner's decision was erroneous, vacated the decision, and reinstated the VMP. The City appeals.

ANALYSIS

A. FINALITY OF THE CLARKS' PERMITS

Both parties agree that the Clarks' VMP was not appealed and, therefore, is final. However, the parties appear to disagree on the effect of the finality of the permit. As explained below, because the VMP is final, it limits the scope of our review to whether the terms of the VMP were violated. Therefore, as an initial matter, we clarify the effect of the finality of the VMP.

Under RCW 36.70C.040(3), a LUPA petition challenging a land use decision must be filed within 21 days or it is barred. If a LUPA petition is not timely filed, the land use decision becomes final and valid once the opportunity to challenge the decision has passed. Durland v. San Juan County, 174 Wn.App. 1, 13, 298 P.3d 757 (2012). "Furthermore, a party may not collaterally challenge a land use decision for which the appeal period has passed via a challenge to a subsequent land use decision." Id. These principles even apply to illegal decisions that are not timely challenged. Habitat Watch v. Skagit County, 155 Wn.2d 397, 407, 120 P.3d 56 (2005).

Here, it is undisputed that the VMP was not challenged within the 21 day period by the filing of a LUPA petition. Therefore, the VMP is final and valid. Durland, 174 Wn.App. at 13. This is true even if the terms of the VMP are invalid or illegal. Habitat Watch, 155 Wn.2d at 407. Neither the City nor the Clarks can use the permit revocation action as a mechanism to collaterally attack the terms of the VMP. Durland, 174 Wn.2d at 13.

Thus, our review is limited to the propriety of the VMP revocation. And because the VMP is final, the relevant issue in determining whether the VMP revocation was proper is whether the Clarks' actions violated the terms of the VMP.^[3]

B. REVOCATION OF THE CLARKS' VMP

The City and the Clarks argue about whether the superior court properly reversed the hearing examiner. However, "[t]his court stands 'in the same position as the superior court when reviewing' the administrative decision underlying a LUPA petition." Fuller Style, Inc. v. City of Seattle, 11 Wn.App. 2d 501, 507, 454 P.3d 883 (2019) (quoting Ellensburg Cement Prods., Inc. v. Kittitas County, 179 Wn.2d 737, 742, 317 P.3d 1037 (2014)). Therefore, we review the hearing examiner's decision, not the superior court's decision. Milestone Homes, Inc. v. City of Bonney Lake, 145 Wn.App. 118, 125, 186 P.3d 357 (2008); see also RCW 36.70C.020(2), .130(1).

The Clarks assert three grounds for reversing the hearing examiner's decision. First, the Clarks argue that the hearing examiner's decision is based on an incorrect interpretation of the law. Second, the...