LUPA appeal denied.pdf1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
um P4 1eVJ[01M" VVA� 1,0- N L.(,'
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF SNOHOMISH
Michael Hathaway,
Plaintiff,
VS.
City of Edmonds et al.,
Defendants.
WrliffolnuminKf]
FINAL ORDER ON LUPA PETITION
This matter having come before the court on the Petitioner's Land Use Petition
Act appeal of the August 9, 2010, Findings, Conclusions, and Decision of the City of Edmonds
Hearing Examiner; the court having reviewed and considered the pleadings, briefing, and
records herein and having heard and considered the arguments of the parties; Now, therefore,
1111" IS HEREBY ORDERED, ADJUDGED AND DECREED AS FOLLOWS:
The Petitioner's LUPA appeal is denied. The Conditional Use Permit (CUP) issued on
11 February 10, 2009, was issued to permit the cutting of certain trees if certain conditions were
met. The City maintains that under the City Code "cutting" does not mean "removal." ECDC
23.40.220(C)(7)(b)(ii) defines "cutting." ECDC 18,45.040(c) defines "removed." They do not
mean the sarne thing. Nevertheless the Petitioner argues that the use of the word "cutting" has
11 Final Order on LU11A Decision - I
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
become so loose that it should be interpreted to allow removal in this case. This question is not
determinative of this case, however, because the CUP imposed significant conditions before
any action could occur. Those conditions were never fulfilled.
Under LUPA a court may grant relief from a local land use action if one of the six
standards in RCW 36.70C.130(1) has been met. The two standards that the Petitioner argues
have been met in this case 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,
and (d) The land use decision is a clearly erroneous application of the law to the facts.
The standard of review under LUPA is deferential.
RCW 36.70C.130(1) "reflects a clear legislative intention that this
court give substantial deference to both legal and factual
determinations of local jurisdictions with expertise in land use
regulation."' Whether a land use decision is an erroneous
application of the law is a legal question we review de novo. A
decision is clearly erroneous only when the court is left with the
definite and firm conviction that a mistake has been made. We
view the evidence and any reasonable inferences in the light most
favorable to the party that prevailed in the highest forum exercising
fact-finding authority.
City of Medina v. T -Mobile USA, 123 Wn.App. 19, 24 (2004).
IIThe Hearing Examiner's factual findings are reviewed for substantial evidence. Under the
11 substantial evidence standard there must be enough evidence in the record to persuade a
IIreasonable person that the declared premise is true.
' Citation Omitted.
Final Order on LUPA Decision - 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21.
22
23
24
25
The Hearing Examiner determined that the conditions set forth in the CUP had never
been met and denied Mr. Hathaway's administrative appeal of the City's January 11, 2010,
decision that the removal was not allowed.
Condition number I of the CUP provided:
The applicant must submit a management plan developed by the
arborist that discusses appropriate management (including removal
and trimming) of the three existing Douglas firs, the Western red
cedar, and the black cottonwood and red alder trees. The plan
must take into consideration the requirements of ECDC 18.45 and
23.40. If the management plan is also intended to address
viewshed encroachment issues, a cross-sectional view height
survey that establishes the height of the viewshed over the former
McClintick Parcel I and which shows the location and heights of
the trees will be required to assist in fact determination. The
management plan shall be reviewed and approved by the City prior
to any work being done at the site.
Substantial evidence supports the Hearing Examiner's finding that this CUP condition
was not met. Neither the August 25, 2008 management plan nor the December 4, 2009 update
took into consideration ECDC 18.45 and 23.40 except that the update indicated the trees were
healthy. Contrary to Petitioners assertion that the CUP allowed for trees to be removed upon
receipt of a management plan providing for removal and remediation, the CUP said no such
thing. It required "consideration" of certain code provisions. The management plan submitted
11 contained no such consideration and the update really only said the trees were healthy. This
report did not fulfill condition I of the CUP.
The Petitioner argues that the City illegally "revoked" the CUP. Substantial evidence
supports the Hearing Examiner's finding that failing to approve a deficient management plan is
not a revocation of the CUP. As noted above, the management plan and the update failed to
Final Order on LUPA Decision - 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
1.8
19
20
21
22
23
24
25
zddress the consideration of ECDC 18.45 and 23.40. The evidence shows that the City did not
approve the plan because of this failure. Failing to approve the plan is not a revocation of the
CUP under the facts of this case.
Finally, substantial evidence supports the conclusion that the CUP did not grant much in
the first place. Substantial evidence shows that the City was not sure what the appropriate
actions would be with regard to the trees and that that is why the requirement of a management
plan considering specific ECDC sections which was to be reviewed and approved by the City
not a condition precedent to any action with the trees. As noted above this condition was never
met.
Neither of the standards asserted by the Petitioner have been met. There is no showing
that the body or officer that made the land use decision engaged in unlawful procedure or failed
,to follow a prescribed process, and there is no showing that the land use decision is a clearly
erroneous application of the law to the facts.
The LUPA appeal is denied.
DONE IN OPEN COURT this 4th day of November, 2010.
11 Pinal Order on LUPA Decision - 4
Hon.ichael T. Downes
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
2.5
NOV 9 2010
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF SNOHOMISH
Michael Hathaway,
Plaintiff,
VS.
City of Edmonds et aL,
Defendants.
I
ORDER GRANTING MOTION
FOR RECONSIDEIZATION
THIS MATTER, having come on before the court upon Petitioner's Motion for �
Reconsideration, and the court having considered the following:
1) Petitioner's Motion for Reconsideration;
2) City of Edmonds Response to Motion for Reconsideration; and
3) The pleadings and Itles herein.
IT IS HEREBY ORDERED that the Petitioner's Motion for Reconsideration of the
October 1,3"', 2010 Final Order is GRANTED and that:
1) Petitioner's LUPA appeal is not moot. At the October, 8, 2010, oral argument the
court inquired of both counsel if the appeal was moot. Citing other litigation
surrounding this case the attorneys stated it was not. Neither attorney mentioned
Order Granting Motion for Reconsideration - I
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
remaining deciduous trees as a reason the case was not moot. Because, and only
because, other trees remain this case is not moot. Pending litigation or other
potential legal action has nothing to do with this court's Order Granting Motion for
Reconsideration and should not be interpreted as such.
2) This court's Final Order on LUPA Petition dated October 13, 2010 is reversed and
vacated.
3) This court will rule on the merits of the LUPA petition.
DONE IN OPEN COURT this 4th day of November, 2010.
11 Order Granting Motion for Reconsideration - 2
Hon. Michael T. Downes