Madison Estates Invs. P'ship v. Madison Estates Lot 5 Invs.

1

MADISON ESTATES INVESTMENTS LIMITED PARTNERSHIP, a Washington limited partnership, Respondent, v. MADISON ESTATES LOT 5 INVESTMENTS, LLC, a Washington limited liability company, and CITY OF SEATTLE, a municipal corporation, Appellants.

Nos. 85733-9-I, 857347

Court of Appeals of Washington, Division 1

August 12, 2024

UNPUBLISHED OPINION

Feldman, J.

We are asked in this appeal to review a decision of the Seattle Department of Construction and Inspections (the City) to issue a building permit to Madison Estates Lot 5 Investments LLC (LOT5) for the construction of a single-family home in a Seattle neighborhood known as "Madison Estates." Madison Estates Investments Limited Partnership, LLC (MELP) an entity governed by LOT5's neighbor, filed a petition under the Land Use Petition Act (LUPA) challenging the City's decision. It contends that the decision should be reversed because a small body of water on LOT5's property, referred to here as the "Pond," is an "environmentally critical area" (ECA) under Seattle Municipal Code (SMC) chapter 25.09. Because MELP has not established that it is entitled to relief under LUPA, we reverse the superior court's order granting MELP's LUPA petition and remand the matter to the superior court to dismiss the petition.

I

In 1916, the Army Corps of Engineers created a channel between Lake Washington and Lake Union. Today, that channel is known as the Montlake Cut. The creation of the Montlake Cut lowered the water level of Lake Washington by approximately 9 feet exposing the area that is currently known as Madison Estates. In the late 1950s and early 1960s, the City and nearby property owners extensively developed the area. This included importing over 29,700 cubic yards of fill to the site. As a result, most of the site that comprises Madison Estates was filled prior to 1970, except for a small area where the Pond exists today. That small area then filled with stormwater from the newly elevated areas, creating the Pond that is the central focus of this appeal.

In 1989, MELP purchased Madison Estates and thereafter applied for a master use permit to subdivide the property into nine lots. Pursuant to the State Environmental Policy Act, ch. 43.21C RCW (SEPA), the City issued a determination of non-significance (DNS) for the master use permit, meaning that the City found no significant adverse environmental impacts stemming from the proposed subdivision. As a condition of the DNS, the City required MELP to record a 25-foot native vegetation buffer area around the Pond on the final recorded short plat where structures would not be permitted. Because MELP applied for the master use permit prior to the City's adoption of SMC chapter 25.09, the City did not determine whether the Pond was an ECA under the city code. MELP later added a rubber liner, pump, and waterfall feature to the pond.

In 2004, LOT5 purchased Lot 5 within Madison Estates. Lot 5 includes a portion of the Pond. In 2020, LOT5 filed an application for a building permit to construct a single-family home on the property. To comply with the conditions of the DNS attached to the City's master use permit, LOT5's building plans do not encroach on the Pond or the 25-foot buffer area around the Pond. MELP opposed the project and sought to influence the permitting process. It repeatedly contacted the responsible decisionmakers at the City and submitted documents in support of its position that the Pond is an ECA under chapter 25.09 SMC and the proposed construction is inconsistent with that designation.

Because MELP actively opposed the project, the City applied greater scrutiny to the proposal and reviewed significantly more wetland information than it had for other similar applications. After two years of review, the City concluded that the Pond met the criteria to be excluded from the ECA designation under SMC 25.09.012(C)(2)(a). As discussed more fully below, SMC 25.09.012(C)(2)(a) states that "Wetlands do not include . . . [1] those artificial wetlands intentionally created [2] from nonwetland sites and [3] not used for mitigation . . . ." Tracking the elements of SMC 25.09.012(C)(2)(a), the City determined that the Pond (1) is artificial and intentionally created, (2) was created from a nonwetland site and (3) is not used for mitigation. It therefore issued the requested building permit despite MELP's staunch opposition.

MELP filed a LUPA petition in superior court challenging the City's decision. The court allowed the parties to conduct discovery and supplement the record for judicial review under RCW 36.70C.120(3).^[1] Similar to its prior assertions in the permitting process, MELP argued in the superior court that the Pond does not satisfy any of the three elements of SMC 25.09.012(C)(2)(a) and, as a result, is an ECA under SMC chapter 25.09. Following a hearing on MELP's LUPA petition, the superior court granted the petition and reversed the City's decision approving LOT5's building permit. This timely appeal followed.

II

The Washington legislature enacted LUPA in 1995 to replace the writ of certiorari as the exclusive means of appealing a local land use decision, such as the City's permitting decision here. Durland v. San Juan County, 182 Wn.2d 55, 64, 340 P.3d 191 (2014); RCW 36.70C.030. "In reviewing a land use decision, we stand in the same position as the superior court." Tateuchi v. City of Bellevue, 15 Wn.App. 2d 888, 895, 478 P.3d 142 (2020). Like the superior court, we may grant relief from a local land use decision under LUPA "only if the party seeking relief has carried the burden of establishing that one of the six standards listed in RCW 36.70C.130(1) has been met." Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 175, 4 P.3d 123 (2000). The six standards are:

(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.

RCW 36.70C.130(1). Similar to Wenatchee Sportsmen, LUPA also states, "The court may grant relief only if the party seeking relief has carried the burden of establishing that one of the standards set forth in (a) through (f) of this subsection has been met." Id.

Here, MELP seeks relief under RCW 36.70C.130(1)(c), (d), and (e). Regarding subsection (c), the substantial evidence standard requires that "there must be sufficient quantum evidence in the record to persuade a reasonable person that the declared premise is true." Wenatchee Sportsmen, 141 Wn.2d at 176. Regarding subsection (d), whether the City erroneously interpreted the law "is a question that we review de novo." Tateuchi, 15 Wn.App. 2d at 896 (citing Phoenix Dev., Inc. v. City of Woodinville, 171 Wn.2d 820, 828, 256 P.3d 1150 (2011)). Further, a land use decision is "clearly erroneous" only when the

reviewing court "is 'left with the definite and firm conviction that a mistake has been committed.'" Cougar Mountain Assocs. v. King County, 111 Wn.2d 742, 747, 765 P.2d 264 (1988) (quoting Polygon Corp. v. City of Seattle, 90 Wn.2d 59, 69, 578 P.2d 1309 (1978)). Lastly, whether the City exceeded its authority, so as to justify relief under subsection (e), presents a question of law that we review de novo. Phoenix Dev., 171 Wn.2d at 828.

While the general principles outlined above are not in dispute, the parties disagree as to how we should view the evidence in deciding whether MELP is entitled to relief under LUPA. In Cingular Wireless, LLC v. Thurston County., 131 Wn.App. 756, 768, 129 P.3d 300 (2006), the court recognized that "[o]ur deferential review" under LUPA "requires us to consider all of the evidence and reasonable inferences in the light most favorable to the party who prevailed in the highest forum that exercised fact-finding authority." Citing this decision, MELP claims we should view the facts and inferences in its favor because it prevailed in the superior court. This argument easily fails because the superior court did not exercise fact finding authority; to the contrary, Washington courts have repeatedly held, "A superior court hearing a LUPA petition acts in an appellate capacity and has only the jurisdiction conferred by law." Durland, 182 Wn.2d at 64 (emphasis added). Washington law is equally clear that "appellate 'courts do not . . . find facts.'" Yorkston v. Whatcom County., 11 Wn.App. 2d 815, 831, 461 P.3d 392 (2020) (quoting Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wn.App. 710, 717, 225 P.3d 266 (2009)). Thus, the superior court's order granting MELP's LUPA petition does not set forth any specific findings of fact and, instead, merely states, "the Land Use Petition is GRANTED and the [City's] Decision is REVERSED."

Because the superior court did not, and could not, exercise fact-finding authority here, we are not required to view the facts and inferences in MELP's favor.^[2]

Contradicting MELP's argument, both LOT5 and the City assert that we should view the facts and inferences in LOT5's favor because it prevailed before the City, which granted its building permit application. This argument is well taken. The record shows that the City, prompted by MELP's submissions, considered the information provided...