NCNG, LLC v. Clark Cnty.

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NCNG, LLC, a Washington limited liability company, Appellant, v. CLARK COUNTY, WASHINGTON, Respondent.

No. 58452-2-II

Court of Appeals of Washington, Division 2

June 18, 2024

UNPUBLISHED OPINION

Lee J.

NCNG LLC appeals the trial court's order denying a land use petition. NCNG challenges a Shoreline Statement of Exemption that required NCNG to record a conservation covenant (Condition 6(k)). Specifically, NCNG argues (1) Condition 6(k) is preempted by the Shoreline Management Act (SMA) of 1971, chapter 90.58 RCW; (2) NCNG's proposed activities do not constitute "substantial development"; (3) Condition 6(k) unlawfully delegates the form and substance of conservation covenants; (4) Condition 6(k) conflicts with background principles of state property law; (5) Condition 6(k) is void for vagueness; and (6) Clark County (County) deprived NCNG of due process based on an inability to appeal the substance of a conservation covenant.

Because Condition 6(k) is not preempted by the SMA, does not unlawfully delegate the form and substance of conservation covenants, does not conflict with background principles of state property law, is not vague, and because the County did not deprive NCNG of due process, we affirm the trial court's order denying NCNG's land use petition.

FACTS

A. Background

NCNG LLC owns parcel number 986053-102 (property) in Clark County. The property is approximately 50 acres and is used primarily for agricultural purposes; specifically, the property is used for cattle grazing.

Whipple Creek, which is considered a shoreline,^[1] flows through a floodplain on the northern portion of the property. See generally RCW 90.58.010 et seq.; Clark County Code (CCC) 40.460.210. Because Whipple Creek is a shoreline, it requires "a 200-foot-wide shoreline buffer extending from the Ordinary High Water Mark (OHWM) of Whipple Creek or to [the] edge of any associated wetland and/or floodplain." Clerk Paper's (CP) at 7; RCW 90.58.030(2)(d); CCC 40.460.210. Several tributaries on the property flow into Whipple Creek.

The property also contains wetlands, including a Category I riverine wetland and a Category III slope wetland. There is a network of farm roads, including a wooden bridge over Whipple Creek, within the 200-foot shoreline buffer area.

In June 2022, NCNG applied for a "Shoreline Statement of Exemption" with the County. Among other things, NCNG sought to replace the existing wooden bridge with a prefabricated steel bridge within the same footprint. The original bridge had "become unsafe and without replacement could fail, creating environmental impacts." CP at 7. In its application, NCNG stated:

The proposed bridge replacement can be considered exempt as normal maintenance as well as a practice for normal and necessary farming and ranching activities. The existing bridge is utilized regularly by the applicant for farming and cattle movement which has become unsafe to cross. . . . [T]he original bridge deck will be removed, and the new bridge will be placed over the existing structure to avoid impact to the stream bank. The bridge replacement will be in the same footprint as the existing bridge and will not impact the bank. No work will occur in wetland or below the ordinary high water.

CP at 54.

On October 3, 2022, the County granted NCNG's application for an exemption. Specifically, the County stated:

The proposed construction is exempt from a Shoreline Substantial Development Permit (SSDP) under [CCC] 40.460.230.B.2 (normal maintenance or repair of existing legally established structures or developments) and [CCC] 40.460.230.B.5 (Construction and practices normal or necessary for farming, irrigation, and ranching activities, including agricultural service roads and utilities on shorelands).

CP at 7. As part of the Statement of Exemption, the County included several conditions of approval. Condition 6(k) stated:

Pursuant to CCC 40.450.030.F, a conservation covenant shall be recorded no later than 60 days after issuance of this permit in a form approved by the Prosecuting Attorney as adequate to incorporate the other restrictions of this section and to give notice of the requirement to obtain a wetland and/or habitat permit prior to engaging in regulated activities within a wetland, wetland buffer, priority habitat area, or mitigation area (Wetland and Habitat Finding 13).

CP at 20 (italics in original).

The Statement of Exemption also contained a section titled "Shoreline Permit Appeal Process." CP at 20. The section stated that any party to the project could "appeal any aspect of the decision to the Superior Court" within 14 days of the decision. CP at 20.

B. Procedural History

On October 12, 2022, NCNG filed a land use petition in superior court challenging Condition 6(k). NCNG alleged several errors within Condition 6(k), including that CCC 40.450.030.F was preempted by the SMA because NCNG's proposed activities did not constitute a "'development'" or "'substantial development'"; CCC 40.450.030.F unlawfully delegated the form and content of the conservation covenant to the prosecuting attorney "without procedural safeguards to control arbitrary administrative action"; Condition 6(k) conflicted with principles of state property law; CCC 40.450.030.F was void for vagueness; and the Statement of Exemption deprived NCNG of due process. CP at 4. NCNG requested the reversal and deletion of Condition 6(k) from the Statement of Exemption.

In April 2023, the superior court held a hearing. NCNG argued in part that the Statement of Exemption exempted it from permitting requirements and CCC 40.450.030.F allowed the County to "condition precisely the same activity allowed unconditionally under RCW 90.58.030(3)." Verbatim Rep. of Proc. (VRP) at 5. In response, the County argued that the bridge replacement constituted a "development." VRP at 18. The County also argued that a project's exemption from a substantial development permit does not exempt it from review and regulation under the local shoreline master program (SMP).

The superior court denied NCNG's land use petition. In the order denying the land use petition, the superior court stated that NCNG "failed to demonstrate that one of the six standards identified in RCW 36.70C.130(1) has been met." CP at 1343.

NCNG appeals.

ANALYSIS

A. Standard of Review

We review land use decisions under the Land Use Petition Act (LUPA), chapter 36.70C RCW. Fuller Style, Inc. v. City of Seattle, 11 Wn.App. 2d 501, 507, 454 P.3d 883 (2019); see RCW 36.70C.030. "An appellate court is in the same position as the superior court when reviewing a LUPA petition." Ellensburg Cement Prods., Inc. v. Kittitas County, 179 Wn.2d 737, 742, 317 P.3d 1037 (2014). The petitioner bears the burden of establishing one of several enumerated standards set forth in RCW 36.70C.130 to obtain relief. RCW 36.70C.130(1); Fuller Style, 11 Wn.App. 2d at 507.

Relevant here, a court may grant relief to a petitioner if:

(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;

. . . . or

(f) The land use decision violates the constitutional rights of the party seeking relief.

RCW 36.70C.130(1).

Whether the petitioner has met its burden under RCW 36.70C.130(1)(b) is reviewed de novo. Fuller Style, 11 Wn.App. 2d at 507. Courts need not always show deference to a local entity's interpretation of the law; deference is appropriate when the local entity shows that its interpretation "'was a matter of preexisting policy.'" Ellensburg Cement Prods., 179 Wn.2d at 753 (quoting Sleasman v. City of Lacey, 159 Wn.2d 639, 647, 151 P.3d 990 (2007)).

Under RCW 36.70C.130(1)(c), we review the land use decision for substantial evidence. Lauer v. Pierce County, 173 Wn.2d 242, 252-53, 267 P.3d 988 (2011). "[T]here must be a sufficient quantum of evidence in the record to persuade a reasonable person that the declared premise is true." Phoenix Dev., Inc. v. City of Woodinville, 171 Wn.2d 820, 829, 256 P.3d 1150 (2011). Facts and inferences are viewed in a light "most favorable to the party that prevailed in the highest forum exercising fact-finding authority." Id. at 828-29.

A petitioner establishes its burden under RCW 36.70C.130(1)(d) if "'[t]he land use decision is a clearly erroneous application of the law to the facts.'" Fuller Style, 11 Wn.App. 2d at 507 (internal quotation marks omitted) (quoting Ellensburg Cement Prods., 179 Wn.2d at 743). This means that "'the reviewing court on the record is left with the definite and firm conviction that a mistake has been committed.'" Id. (quoting Phoenix Dev., 171 Wn.2d at 829). Finally, we review RCW 36.70C.130(1)(f) de novo. Phoenix Dev., 171 Wn.2d at 828.

Questions of statutory interpretation are also reviewed de novo. Nelson v. P.S.C., Inc., 2 Wn.3d 227, 233, 535 P.3d 418 (2023). The objective of statutory interpretation is to ascertain and carry out the legislature's intent. Royal Oaks Country Club v. Dep't of Revenue, 2 Wn.3d 562, 568, 541 P.3d 336 (2024). "If the meaning of the statute is plain on its face, we give effect to that plain meaning as an expression of legislative intent." Id. Plain language is discerned from "the ordinary meaning of the language in the context of related statutory provisions, the entire statute, and related statutes." Id. Courts may turn to the dictionary for undefined statutory terms. Lake v. Woodcreek Homeowners Ass'n, 169 Wn.2d 516, 528, 243 P.3d 1283 (2010).

B. Shoreline...