Tateuchi v. City of Bellevue

15 Wash.App.2d 888

478 P.3d 142

Ina TATEUCHI and Helicopters Unsafe Here, a Washington non-profit corporation, Appellants,

v.CITY OF BELLEVUE, a Washington municipal corporation, and Kemper Development Company, a Washington corporation, Respondents.

No. 80712-9-I

Court of Appeals of Washington, Division 1.

FILED December 28, 2020

Howard Mark Goodfriend, Catherine Wright Smith, Smith Goodfriend PS, 1619 8th Ave. N, Seattle, WA, 98109-3007, Peter J. Eglick, Joshua Adam Whited, Eglick & Whited PLLC, 1000 2nd Ave. Ste. 3130, Seattle, WA, 98104-1046, for Appellants.

Alison Moss, Virginia Nicholson, Schwabe, Williamson, & Wyatt, 1420 5th Ave. Ste. 3400, U S Bank Ctr., Seattle, WA, 98101-2339, Matthew Brent McFarland, Bellevue City Attorney's Office, 450 110th Ave. Ne, Bellevue, WA, 98004-5514, Cheryl Ann Zakrzewski, City of Bellevue, Po Box 90012, 450 110th Ave. Ne, Bellevue, WA, 98009-9012, for Respondents.

PUBLISHED OPINION

Bowman, J. ¶1 Ina Tateuchi and Helicopters UnSafe Here (HUSH) petitioned under the Land Use Petition Act (LUPA), chapter 36.70C RCW, seeking to revoke Kemper Development Company's (KDC's) conditional use permit authorizing use of a rooftop in the city of Bellevue (City) as a helistop. Tateuchi and HUSH argued that KDC abandoned the land use because it had no flight activity. They also claimed that the Bellevue City Council (Council) acted contrary to the Open Public Meetings Act of 1971 (OPMA), chapter 42.30 RCW, when it discussed their appeal from the City's land use decision in executive session. The superior court denied the LUPA petition and dismissed the OPMA claim under CR 12(b)(6). Because KDC has continually used the rooftop as a helistop and the Council acted as a quasi-judicial body under the OPMA, we affirm.

FACTS

¶2 In 2008, KDC applied for a conditional use permit (CUP) to construct a private helistop on the rooftop of the Bellevue Place Bank of America Building. Tateuchi urged the City to reject KDC's application, arguing that helicopter activity in the downtown corridor is a public safety danger. In the alternative, Tateuchi advocated to restrict flights to only twin-engine helicopters. After several public hearings, the City issued the CUP in May 2011 with the twin-engine limitation.¹

¶3 KDC then obtained a building permit to upgrade the rooftop to meet Federal Aviation Administration (FAA) design standards and City building code requirements. In 2013, the site became operational. The CUP required an active communications system and website for residents, which KDC has continually maintained. As a condition of the CUP, KDC also files routine usage reports with the City, attesting that the helistop remains "fully operational." KDC reported no helicopter landings or takeoffs at the helistop, except for one flight in 2015.

¶4 In 2016, Tateuchi applied to the City to revoke the CUP, claiming KDC abandoned its conditional use because there had been no helicopter takeoffs or landings.² In response, the City held an informational meeting and considered comments from members of the community about whether to revoke the CUP. After hearing public comment, the Bellevue Development Services Department director recommended that the City deny Tateuchi's application. The City set a public hearing before a hearings examiner for March 2018 on Tateuchi's application to revoke KDC's CUP.

¶5 At the March 22, 2018 public hearing, the hearing examiner considered argument from the City, KDC, and Tateuchi. After the hearing, she issued written findings of fact and conclusions of law denying Tateuchi's application. The hearing examiner concluded:

[T]he absence of helicopters landings at the Bellevue Place Helistop is not determinative of discontinuance. As long as KDC has actively maintained and even improved the helistop, it has not committed any overt act evidencing abandonment. Nor does the lack of helicopter landings evidence intent to abandon.

¶6 Tateuchi and HUSH (collectively Tateuchi) appealed the hearing examiner's decision to the Council.³ The Council considered an extensive written record and held a "limited" public hearing after their regular meeting on June 18, 2018. Before hearing argument, the mayor explained that the hearing was "confined to the issues decided by the Hearing Examiner" and

[a]s noted earlier at oral communication, the Council has not been able to take public comment on this matter because it is a quasi-judicial proceeding and does not follow Council's normal process[.] Because the record of this matter officially closed with the issuance of the Examiner's decision, no additional evidence or public comment can be considered by Council in rendering a decision on the Examiner's decision.

¶7 Tateuchi's attorney urged the Council to review the record carefully. He told the Council, "I hope you folks are not going to make a decision tonight because I hope you will go back and look at the record." The mayor responded:

I do not anticipate we will make a decision tonight[.] We are planning to go into Executive Session to discuss the merits of the case and ... adjourn from the Executive Session without making a decision[.] We would come back at a later date to have a discussion about what our decision would ... be.^{[4 ]}

¶8 After the hearing, the mayor reiterated that the Council was "planning to go into an Executive Session to discuss the merits of the case."⁵ The Council began its deliberations in executive session that night and then adjourned to a later date for further consideration.

¶9 Three months later, the Council addressed Tateuchi's appeal at their September public meeting. The Council voted on the record to deny Tateuchi's appeal and to adopt the hearing examiner's findings and conclusions denying the application to revoke KDC's CUP. The City codified the Council's decision as Bellevue Ordinance 6429 (Oct. 2018).

¶10 Tateuchi filed a LUPA petition in King County Superior Court, claiming the City erred in determining KDC had not abandoned its use of the rooftop. In the alternative, Tateuchi alleged the City violated the OPMA because the Council "deliberated in secret."⁶ The superior court affirmed the City's denial of Tateuchi's appeal and denied "in full" Tateuchi's LUPA petition. The superior court also granted the City's motion to dismiss Tateuchi's LUPA petition and the OPMA claim under CR 12(b)(1) and (6) with prejudice.⁷ Tateuchi sought direct review before the Supreme Court, which transferred review to this court.

ANALYSIS

LUPA

¶11 Tateuchi argues the term "abandoned" in Bellevue Land Use Code (BLUC) 20.30B.170(B)(1) can be satisfied by showing only that property is not being used for the purpose contemplated by a CUP. They claim the City erred by concluding that a property owner must also express an intent to abandon the conditional use. Tateuchi also argues the City erred by concluding KDC continually used the rooftop as a helistop after the CUP issued.

¶12 LUPA governs judicial review of land use decisions. RCW 36.70C.030. In reviewing a land use decision, we stand in the same position as the superior court.

Phoenix Dev., Inc. v. City of Woodinville, 171 Wash.2d 820, 828, 256 P.3d 1150 (2011). We review a LUPA petition using the administrative record admitted before the trial court. Isla Verde Int'l Holdings, Inc. v. City of Camas, 146 Wash.2d 740, 751, 49 P.3d 867 (2002), abrogated on other grounds by Yim v. City of Seattle, 194 Wash.2d 682, 451 P.3d 694 (2019).

¶13 "Under LUPA a court may grant relief from a local land use decision 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 Wash.2d 169, 175, 4 P.3d 123 (2000). RCW 36.70C.130(1) provides:

The superior court, acting without a jury, shall review the record and such supplemental evidence as is permitted under RCW 36.70C.120. 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. The 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.

Tateuchi seeks relief under subsections (a),⁸ (b), (c), and (d).

¶14 Whether the hearing examiner erroneously interpreted the law is a question that we review de novo. Phoenix Dev., 171 Wash.2d at 828, 256 P.3d 1150. When reviewing a challenge to the sufficiency of evidence, we view facts and inferences " ‘in a light most favorable to the party that prevailed in the highest forum exercising fact finding authority’ "—here, the City and KDC. Woods v. Kittitas County, 162 Wash.2d 597, 617, 174 P.3d 25 (2007)⁹ (quoting Benchmark Land Co. v. City of Battle Ground, 146 Wash.2d 685, 694, 49 P.3d 860 (2002) ). Under the substantial evidence standard, there must be sufficient evidence in the record to persuade a reasonable person that the declared premise is true. Wenatchee Sportsmen, 141 Wash.2d at 176, 4 P.3d 123. A finding 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 Wash.2d 742, 747, 765 P.2d 264 (1988)¹⁰ (quoting Polygon Corp. v. City of Seattle, 90 Wash.2d 59, 69, 578 P.2d 1309 (19...