Opinion
No. 51849-6-I
Filed: March 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 01-2-10593-1. Judgment or order under review. Date filed: 01/13/2003. Judge signing: Hon. Sharon Armstrong.
Counsel for Appellant(s), Flannary Pasieka Collins, City of Shoreline, 17544 Midvale Ave N, Shoreline, WA 98133-4921.
Ian Richard Sievers, City of Shoreline Attorney, 17544 Midvale Ave N, Shoreline, WA 98133-4921.
Michael Allan Spence, Attorney at Law, 2033 6th Ave Ste 1040, Seattle, WA 98121-2527.
Counsel for Respondent(s), Timothy Crawford (Appearing Pro Se), 2326 N. 155th, Shoreline, WA 98133.
Michele L. McFadden, Attorney at Law, PO Box 714, Wauna, WA 98395-0714.
Patricia Crawford (Appearing Pro Se), 2326 N. 155th, Shoreline, WA 98133.
Gaston Enterprises and the City of Shoreline appeal the trial court's decision to declare the variance void. The appellants raise three issues on appeal: first, Gaston argues that the trial court erred in finding that it had created the need for the variance; second, Gaston argues that the trial court erred by finding that the watercourse running through a culvert on Gaston's property was a stream; and third, Gaston argues that the trial court erred when it overturned the hearing examiner's mitigated determination of non-significance (MDNS). We conclude that Gaston did not create the need for the variance. However, the hearing examiner did not make any findings of fact to support the conclusion that the variance was the minimum necessary to grant relief. We remand to determine whether the relief sought satisfies the minimum necessary requirement of the variance ordinance. We conclude that the culverted portion of Thornton Creek crossing the property is a Class Two stream. If on remand the variance is granted, further proceedings are necessary to determine whether the MDNS is appropriate in light of our decision on the status of the stream.
FACTS
Gaston Enterprises (Gaston) purchased a parcel of land on which there was a single family home that straddled two lots. The 16,575 sq. ft. parcel Gaston purchased included all of Lot 16 and a portion of Lot 15. Thornton Creek runs through a culvert along both the eastern and southern boundaries of the Gaston property. Gaston applied for a boundary line adjustment from the City of Shoreline (Shoreline) in an effort to construct another single family home. Shoreline granted Gaston's request and the adjusted lots were redesignated lots A and B. Gaston sold Lot A, with the original house, and then applied for and received permits to build on Lot B. Gaston did not inform Shoreline of the property's proximity to Thornton Creek.
Shoreline issued a stop work order when it learned that Thornton Creek ran along the property. Shoreline requires a 100-foot buffer from Class Two streams used by salmonids, and requires that structures be set back an additional 15 feet from the stream buffer. Thornton Creek is a Class Two stream that travels underground along the eastern and southern boundaries of the Gaston property via a 24-inch diameter concrete culvert. The creek runs from Ronald Bog to a private fish pond operated by Timothy and Patricia Crawford and continues to Lake Washington. The newly created Lot B was entirely within the stream's buffer area. Gaston could not build a new home without a variance.
Salmonids are a family of fish that includes salmon and trout.
Gaston requested a variance that would allow it to build a single-family home roughly 52 feet from an open portion of Thornton Creek located on the Crawfords' property, and 13 to 17 feet from the culverted portion of the creek on Lot B. Gaston's proposed home and driveway would cover 45 percent of Lot B with an impervious surface. Shoreline approved Gaston's variance request in November 2000 and issued a Mitigated Determination of Non-Significance (MDNS). Because Shoreline granted a MDNS, Gaston was not required to provide an environmental impact statement for the variance. The Crawfords appealed both the variance and the MDNS. The Crawfords first challenged the variance and the MDNS in front of a hearing examiner. The hearing examiner concluded that the water in the pipe was a waterway, not a stream, and found against the Crawfords on both issues. The Crawfords appealed the hearing examiner's decision to King County Superior Court (trial court). The trial court found that Gaston had failed to satisfy the variance criteria required under Shoreline Municipal Code (SMC) SMC sec. 20.30.310(B)(4) and (B)(11) and accordingly reversed the hearing examiner's decision to uphold the variance. Additionally, the trial court found that the hearing examiner incorrectly determined that the waterway was not a Class Two stream and that Shoreline's issuance of the MDNS was clearly erroneous because it failed to consider certain environmental concerns.
ANALYSIS I. Standard of Review
The interpretation of municipal code is a question of law that we review de novo. Almquist v. Finley Sch. Dist. No. 53, 114 Wn. App. 395, 404, 57 P.3d 1191 (2002).
We review land use decisions under the Land Use Petition Act (LUPA). RCW 36.70C.130(1). `In reviewing an administrative decision, we sit in the same position as the superior court and apply the LUPA standards of review directly to the Hearing Examiner's [D]ecision.' Thornton Creek Legal Defense Fund v. City of Seattle, 113 Wn. App. 34, 47, 52 P.3d 522 (2002). The party seeking relief from the land use decision bears the burden of meeting one of the six standards for granting relief set forth in RCW 36.70C.130(1). Thornton Creek Legal Defense Fund, 113 Wn. App. at 47. A decision by a hearing examiner to uphold a Mitigated Determination of Nonsignificance is reviewed under the `clearly erroneous' standard. Norway Hill Pres. Protection Ass'n v. King County Council, 87 Wn.2d 267, 274-75, 552 P.2d 674 (1976).
(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.
II. Variance Standards
The Crawfords argue that Gaston is not entitled to a variance. Under the SMC, Shoreline may grant a variance where the following eleven factors are met:
1. The Variance is necessary because of the unique size, shape, topography, or location of the subject property.
2. The strict enforcement of the provisions of this title creates an unnecessary hardship to the property owner.
3. The subject property is deprived, by provisions of this title, of rights and privileges enjoyed by other properties in the vicinity and under an identical zone.
4. The need for the Variance is not the result of deliberate actions of the applicant or property owner, including any past owner of the same property.
5. The Variance is compatible with the Comprehensive Plan.
6. The Variance does not create a health [or] safety hazard.
7. The granting of the Variance will not [be] materially detrimental to the public welfare or injurious [to]:
The property or the improvements in the vicinity, or
The zone in which the subject property is located;
8. The Variance does not relieve an applicant from:
i Any of the procedural or administrative provisions of this title, or
ii Any standard or provision that specifically states that no variance from such standard or provision is permitted, or
iii Use or building restrictions, or
iv Any provisions of Critical Areas Overlay District requirements, except for the required buffer widths.
9. The Variance from setback or height requirements does not infringe upon or interfere with easement or covenant rights or responsibilities;
10. The Variance does not allow the establishment of a use that is not otherwise permitted in the zone in which the proposal is located; or
11. The Variance is the minimum necessary to grant relief to the applicant.
The trial court overturned the hearing examiner's variance based on two of the factors above, finding first that the need for the variance was the result of deliberate actions by Gaston, and second that the variance granted was not the minimum necessary to provide relief. We review each of these findings below.
III. Factor Four: The Need For the Variance Is Not the Result of Deliberate Actions of the Applicant or Property Owner, Including Any Past Owner of the Same Property.The Crawfords argue that Gaston is not entitled to a variance because by creating Lot B, Gaston created the hardship resulting in the need for the variance. A party seeking a variance must demonstrate that the need for the variance is not the result of that party's deliberate actions. Lewis v. City of Medina, 87 Wn.2d 19, 23, 548 P.2d 1093 (1976). They rely on Lewis.
The parents of the plaintiffs in Lewis owned `all of tract G of DeVries Lake Washington Tracks in 1942.' Lewis, 87 Wn.2d at 19-20. At some point they sold the northerly portion of their land and then an easterly portion, leaving them with a trapezoidal lot that was smaller than the minimum lot size required by King County and the City of Medina. Lewis, 87 Wn.2d at 19-20. The plaintiffs attempt to build on that substandard lot was blocked by the City of Medina. Lewis, 87 Wn.2d at 20-21. The plaintiffs appealed the city's decision to the Washington State Supreme Court. Lewis, 87 Wn.2d at 19. The court held that they could not build because they had created the need for a variance by dividing their one tract of land into three separate lots, one of which fell below the minimum lot size. Lewis, 87 Wn.2d at 23. Gaston argues that boundary line adjustments are evaluated on whether new lots are created, not on the degree of change. See City of Seattle v. Crispin, 149 Wn.2d 896, 903, 71 P.3d 208 (2003). For example, in Crispin the owners of a property combined ten tracts of land into three lots: A, B, and C. Crispin, 149 Wn.2d at 897. Four apartment buildings were later built on the three lots, two on one lot and one on each of the others. Crispin, 149 Wn.2d at 897. The lot owners eventually converted the apartments into condominiums and had a surveyor realign the property boundaries. Crispin, 149 Wn.2d at 899. After this adjustment one lot was left vacant and two buildings were on each of the other two lots. Crispin, 149 Wn.2d at 900. The owner of the vacant lot did not pay taxes on it and King County foreclosed. Crispin, 149 Wn.2d at 900. Rory Crispin purchased the vacant lot at auction. Crispin, 149 Wn.2d at 900. The residents of the neighborhood around Crispin's vacant lot organized against him when they learned he intended to develop it. Crispin, 149 Wn.2d at 901. Eventually a city hearing examiner determined that the lot was not legally buildable because it `was not created in compliance with state and city subdivision laws.' Crispin, 149 Wn.2d at 902. Our State Supreme Court noted that `[b]efore the 1972 adjustment there were three lots, each with at least one building. After the adjustment there were still three lots, now with two buildings on two and one left vacant.' Crispin, 149 Wn.2d at 903. The court held that lot boundary line adjustments are not evaluated on the degree of change, only on whether new lots are created. Crispin, 149 Wn.2d at 903.
Gaston purchased a parcel of land on which there was a single family home that straddled two lots. The 16,575 sq. ft. parcel Gaston purchased included all of Lot 16 and a portion of Lot 15. The original lots were created under King County Code. Both met minimum lot size when created. Under the subsequent SMC, the lots were recognized as nonconforming and retained their development rights. See SMC sec. 19.08.010 The lot lies within the buffers established in the municipal code and the SMC buffer regulations apply to the existing lots. Accordingly, Gaston could only develop the original lots if it obtained a variance.
Gaston applied for a boundary line adjustment from Shoreline in 1998, in an effort to build another single family home. Shoreline granted Gaston's request and adjusted the boundary line. In the boundary line adjustment the lots were renamed Lot A and Lot B. As in Crispin, Gaston did not create any new lots, as the Crawfords contend. Two lots existed before the boundary line adjustment and two lots existed after the adjustment. As in Crispin an existing building originally in one lot, though partially rather than completely, was within another lot as a result of moving the lot line. As in Crispin, the redefined lot no longer contained a building.
The Gaston lots were both within the stream buffer and setback distances after the boundary line adjustment. But they were already within these distances before the boundary line adjustment. A variance would have been needed to build even accessory housing related to the existing residence even before the lot line adjustment. While the adjustment was a result of the deliberate actions of the applicant, it created neither the need for a variance nor any new lots, both of which were the case in Lewis. The hearing examiner's conclusion that the boundary line adjustment was not a self-created hardship was correct on the facts in this record. The trial court erred in concluding Gaston's boundary line adjustment created a new lot and therefore was a self-created hardship.
IV. Minimum Necessary: Shoreline Municipal Code sec. 20.30.310(B)11 Requires that a Variance be the Minimum Necessary to Grant Relief to the Applicant. A. MootnessThe Crawfords argue that this appeal is moot. They note that the trial court overturned the hearing examiner's variance decision on two grounds: first, it found that Gaston had created the need for the variance in violation of SMC sec. 20.30.310(B)(4); and second, the trial court found that there was insufficient evidence to conclude that the variance was the minimum necessary to grant relief, as required by SMC sec.
20.30.310(B)(11). The Crawfords argue that Gaston did not assign error to the trial court's SMC sec. 20.30.310(B)(11) finding, and that the appellate courts do not generally consider matters to which neither party has assigned error. Further, the SMC requires that a variance applicant demonstrate that the proposed variance is the minimum necessary to grant relief to the applicant. Without satisfying SMC sec. 20.30.310(B)(11), a variance cannot be granted even if the appellate court reversed on other issues. Accordingly, the Crawfords argue that this entire appeal is moot.
Gaston contends that we may remand this case to the hearing examiner to gather sufficient evidence to determine whether the variance was the minimum necessary to grant relief. Gaston argues that because we review hearing examiner decisions de novo, we can remand on this or other issues and Gaston could then produce further evidence to support a finding of the minimum necessary relief or could then alter the project and resubmit the variance application.
We conclude that the entire appeal is not moot.
A case is moot if a court can no longer provide effective relief. Orwick v. City of Seattle, 103 Wn.2d 249, 253, 692 P.2d 793 (1984). As a general rule, this court will not review a moot case. Id. However, this court may review a moot case if it presents issues of continuing and substantial public interest. Westerman v. Cary, 125 Wn.2d 277, 286, 892 P.2d 1067 (1994) In deciding whether a case presents issues of continuing and substantial public interest:
Three factors in particular are determinative: (1) whether the issue is of a public or private nature; (2) whether an authoritative determination is desirable to provide future guidance to public officers; and (3) whether the issue is likely to recur. Id. at 286-87.
In re Marriage of Horner, 151 Wn.2d 884, 891-92, 93 P.3d 124 (2004). The questions presented in this appeal are public in nature, an authoritative determination would provide guidance for the future, and the issue is likely to recur. Further, we can provide effective relief. Even where findings are inadequate on a particular issue in a LUPA appeal, this court has authority to remand the case for further proceedings.
Resolving the issue of what was the minimum necessary relief was itself necessary to properly decide the case and to avoid unnecessary future appeals of this or subsequent applications for a variance under SMC sec. 20.30.310. The Crawfords summarily raised the issue in their response brief. Gaston answered this assertion in its reply brief. We concluded that the initial briefing was inadequate for this court to answer the question posed by the Crawfords. RAP 12.1(b) provides:
If the appellate court concludes that an issue which is not set forth in the briefs should be considered to properly decide a case, the court may notify the parties and give them an opportunity to present written argument on the issue raised by the court.
Accordingly, we ordered supplemental briefing on the issue of what SMC sec. 20.30.310(B)(11) required to establish the minimum necessary relief for a variance.
B. Minimum Necessary; Lack of Findings
No party is asserting that the minimum necessary relief is a question of law which flows simply from satisfying the remaining ten factors required for a variance. Nor do we find any case law that suggests this issue is a pure question of law.
SMC sec. 20.30.310(A) declares the purpose of a variance to be `a mechanism by which the City may grant relief from the zoning provisions and standards of the Code, where practical difficulty renders compliance with the Code an unnecessary hardship.' The minimum necessary relief for a variance provided for in SMC sec. 20.30.310(B)(11) is relief from the unnecessary hardship. This relief entails both the type of relief, i.e., buffer distances, and the amount of relief, i.e., how many feet the buffer distances are reduced. The type of relief is not at issue here. Gaston sought a variance from the buffer requirements of the creek. Only that type of relief was granted in the variance. The issue then is whether the variance granted was the minimum amount of variance to provide relief from the unnecessary hardship created by strict application of the zoning provisions and standards of the SMC.
The Crawfords argue that the entirety of the evidence submitted to show that the variance was the minimum necessary was one conclusory paragraph in Gaston's `Variance Criteria Sheet:'
The [v]ariance is the minimum necessary to permit construction of the proposed residence on the property, taking into account development constraints existing on the subject property, including utility and drainage easements, yard requirements and other factors.
The Crawfords assert that Shoreline should have analyzed whether the house could be a two bedroom, one-bathroom home, rather than a four-bedroom and two-bathroom home. The City did not even consider whether the building could be built with a smaller footprint than that proposed. The City should also have considered different locations for the house or driveway that may have been less intrusion into the buffer.
Because the City did not consider these issues, the Crawfords claimed that Gaston had failed to demonstrate that the variance was the minimum necessary to grant relief.
Shoreline argues that
[w]hat the minimum necessary test should not require is proof that an unknown number of design permutations have been considered. The correct approach is to judge a design based on a range of reasonableness, not to eliminate designs one-by-one until the project with the absolute least impact is found.
We agree that consideration of every lesser design permutation which could possibly be employed to decrease the amount of relief would impose impractical burdens on the applicant and upon the municipality. Two of the considerations suggested by the Crawfords point out the problem. Requiring the city to consider a two-bedroom, one-bathroom design as opposed to a four-bedroom, two-bathroom design would not necessarily address the appropriate buffer distance. The house could be smaller, but still be as close to the stream or the house could be larger, yet farther from the stream. Similarly, an alternate footprint for the house might be smaller, but still be no farther from the stream to be buffered. Or the footprint of the house could be larger yet farther from the stream. However, the determination of the minimum necessary relief flows from what the unreasonable hardship is determined to be, not from what additional limitations might be sought on the development.
In the variance report, Shoreline described the unreasonable hardship factor:
The 100-foot buffer and additional 15-foot setback cover nearly all of the subject property. Thus, if the buffer requirement is strictly enforced, the property cannot be developed. This creates an unnecessary hardship on the property owner because it deprives the property owner of all reasonable economic use of the property.
While this finding is adequate to establish that an unreasonable hardship exists, it does not describe the unreasonable hardship with enough particularity to define the extent of relief to which Gaston is entitled. In analyzing the third factor, the variance report states:
There are 26 other properties in the vicinity of the subject property (defined as within 100 feet of the creek in the area between 155th and the METRO bus barn) all are in the residential zone and all contain single family homes. Of the total 26 properties, 24 (92 [percent]) have principal structures on the lot within 100 feet of the creek. Only 2 properties (8 [percent]) do not encroach into the 100-foot buffer with the principle structure. Without the variance, the subject property cannot be developed.
In addition, some of these residences are located closer to the watercourse than the residence proposed on the subject property. For example, the property directly next door to the subject property to the west is developed with a single-family residence and accessory structure located closer to the watercourse than the residence proposed on the subject property. In addition, the property to the southwest of the subject property is developed with a residence and a hot tub. The nearby properties have the same zoning as the subject property. Accordingly, the subject property is deprived of the rights and privileges enjoyed by other properties in the vicinity and under an identical zone.
In the same report, Shoreline described the minimum necessary factor:
The Variance is the minimum necessary to permit construction of the proposed residence on the property, taking into account development constraints existing on the subject property, including utility and drainage easements, yard requirements and other factors.
Gaston is entitled to make reasonable use of the property. The property is zoned residential. But, is the unreasonable hardship not being able to build any single family residence; not being able to build the proposed single family residence; not being able to build a single family residence of similar size to other homes in the same zone and vicinity; or not being able to build as far into the buffer as the neighbors have? The analysis in the variance report set forth above merely begs the question of whether the house as proposed results from the minimum necessary relief from the unnecessary hardship. The record contains no finding as to the standard by which the hardship is to be measured. By way of illustration, if Shoreline interpreted its ordinance such that it is an unreasonable hardship for Gaston to be denied a home of similar size as others in the same vicinity and zone, then it must make a record of what the sizes of those homes are, how his proposed home compares and how its placement satisfies the minimum necessary relief. Such findings, along with the other constraints already noted, would enable review of the amount of relief from the buffer requirements. We are not asserting this is the standard, only that Shoreline must interpret the requirements of its ordinance and apply them accordingly. The record must contain findings with respect to satisfying those requirements. Without such findings, we cannot conclude that the minimum necessary relief requirement has been met. We conclude the record does not establish that the relief granted was the minimum necessary relief to remove the unnecessary hardship. We remand for further proceedings.
While the trial court reached the same conclusion, we disagree with the trial court that Shoreline must address the potential for a smaller footprint for the house or gravel rather than pavement for the driveway as specific considerations in determining what is the minimum necessary relief. As discussed above, the size of the footprint is not the appropriate starting point. Whether the driveway is paved or gravel may be a consideration with respect to mitigation of adverse impacts, but does not address the issue of buffer distances and is not an appropriate consideration for the variance at issue.
V. Mitigated Determination of Non-Significance
The trial court concluded that the MDNS was clearly erroneous on three bases:
a. The analysis was performed without regard to the fact that the piped watercourse under respondent Gaston's property is a stream.
b. The analysis was performed without regard to the presence of juvenile coho on the property and the fact Puget Sound coho are candidates for listing as a threatened species by the National Marine Fisheries Service.
c. Insufficient consideration was given to the likelihood that the piped watercourse is illegal and may need to be removed under the authority of the Washington Department of Fish and Wildlife (because it may act as a barrier to upstream migration of salmonids).
We review each, though not in this order.
A. Daylighting the Stream
Authority has not been cited establishing that the piped watercourse is illegal nor that Shoreline has any authority to order its removal. See, Thornton Creek, 113 Wn. App. at 63, n. 70. Nor has authority been cited that making a future hypothetical restoration project more difficult constitutes an adverse environmental impact under SEPA. The trial court erred in concluding that failure to consider this factor rendered the MDNS clearly erroneous. Thornton Creek Legal Defense Fund v. Seattle, 113 Wn. App. at 59.
B. Was the Culverted Portion of Thornton Creek a Class Two Stream?
The SMC defines a stream as areas in the City of Shoreline where surface waters produce a defined channel or bed, not including irrigation ditches, canals, storm or surface water runoff devices or other entirely artificial watercourses, unless they are used by salmonids or are used to convey streams naturally occurring prior to construction in such watercourses.
Gaston concedes that the culvert was designed to re-locate Thornton Creek. Thus, the culvert is an artificial watercourse. However, it is undisputed that Thornton Creek was a naturally occurring stream prior to the construction where surface waters produced a defined channel or bed. It is no consequence that the artificial watercourse may have changed the course of the naturally occurring stream. It is undisputed that Thornton Creek enters the Gaston property in the underground culvert and exits the culvert on the Crawfords' property. It is also undisputed that Thornton Creek is classified as a Class Two stream before it enters and after it exits the culvert. We agree with the trial court and conclude that the water does not cease being part of Thornton Creek while passing through the culvert. As part of Thornton Creek, the culverted section under Gaston's property was and remained part of a Class Two stream. It was clearly erroneous for the hearing examiner to conclude otherwise.
However, this error may have been harmless. The buffer requirements detailed in the SMC are intended to protect the open stream. Clearly, some or all of those purposes served by the buffer may be moot as to the stream while contained within the culvert. For example, the culvert may not require shade for temperature control as an open channel would. The need to manage runoff into the culvert may be moot if runoff cannot enter the culvert as it would an open channel. We cannot conclude on this record whether the correct characterization of the culverted watercourse as a stream would result in the same determinations as were originally made about the impacts of the project. We therefore remand for further consideration of whether the purposes to be served by the buffer distances which are proposed to be reduced have been satisfied or whether additional mitigation is required.
C. Adequacy of the Analysis With Respect to Fish
The hearing examiner received evidence that the proposed home was closer than 100 feet to the Class Two stream on the Crawfords' property; that fish were present downstream at the Crawfords' Twin Ponds; that the potential existed for listing the fish as endangered; and that barriers to upstream migration of fish existed downstream of the Gaston property. The hearing examiner also received evidence regarding the design and effectiveness of the two required mitigating measures, the swale and the detention facilities, to mitigate runoff, to mitigate temperature increases and to improve water quality downstream. If stream flows, water temperature and water quality are the only considerations, then on this record the mitigating measures in the MDNS may well be sufficient to allow an affirmance of the MDNS. However, evidence was also presented indicating the stream was environmentally sensitive and impacts on fish had not been adequately addressed. Cohen testified that he did not treat the stream as environmentally sensitive when he approved the variance. On this record we cannot be sure that all adverse impacts on an environmentally sensitive stream or the fish contained in it have been identified and mitigated. Accordingly, we must remand for further consideration of these issues. Affirmed in part; reversed and remanded in part.
ELLINGTON and COLEMAN, JJ., concur.