IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
'J> o
MICHAEL DURLAND, KATHLEEN -C m FENNELL, and DEER HARBOR No. 67429-3- x*» •zo o O-T-; ~H ' BOATWORKS, ro •fc*t
'J>~c rn Appellants, x**> IX -i. J> -,-r- ORDER GRANTING MOTION —— ow #-
v. TO PUBLISH OPINION ro —"'Ct2
cr. ".:' -
SAN JUAN COUNTY, WES HEINMILLER, and ALAN STAMEISEN,
Respondents.
Appellants, Michael Durland, Kathleen Fennell, and Deer Harbor Boatworks
(collectively, Durland) moved this Courtto publish, in part, the unpublished decision filed
in this matter on October 29, 2012 and the respondents San Juan County, Wes
Heinmiller, and Alan Stameisen filed an answer to the motion to publish.
A majority of the panel has determined the motion to publish should be granted.
Now, therefore, it is hereby
IT IS ORDERED
That the appellants' motion to publish the opinion is granted.
DATED this ^ ^ clay of 'JJOo^rch^ 2013.
FOR THE PANEL:
Ujx\ MS. esiding Judge Judc IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
MICHAEL DURLAND, KATHLEEN FENNELL, and DEER HARBOR No. 67429-3-1 BOATWORKS,
Appellants, DIVISION ONE
SAN JUAN COUNTY, WES PUBLISHED OPINION HEINMILLER, and ALAN STAMEISEN,
Respondents. FILED: October 29. 2012
__ _l£ Spearman, A.C.J. — Under the Land Use Petition Act, chapter 36.70Co
RCW (LUPA), a petition challenging a land use decision must be filed within & -=2 days of the issuance of the land use decision. Furthermore, a party may not -± ~p
collaterally challenge a land use decision for which the appeal period has pa@ed§:~ through a challenge to a subsequent land use decision. The main question
presented in this appeal is whether compliance plans between respondent San
Juan County and respondents Wesley Heinmiller and Alan Stameisen (Heinmiller
and Stameisen referred to collectively as "Heinmiller") were "land use decisions"
under LUPA. If they were, the appellants, Michael Durland, Kathleen Fennel, and Deer Harbor Boatworks (collectively, "Durland"), are barred from raising certain
issues in their LUPA petition because they did not bring a LUPA petition
challenging the compliance plans within 21 days. Other issues on appeal and cross-appeal are whether the County properly calculated the pitch for a proposed No. 67429-3-1/2
roof on Heinmiller's barn; whether the County properly calculated the "living area"
of an alternative dwelling unit (ADU) constructed inside the barn; and whether the
superior court erred in awarding statutory costs to Durland.
We hold that the compliance plans in this case were not land use
decisions because they were not final determinations that left nothing open to
further dispute. We also hold that while the County did not err in calculating roof
pitch because the relevant code provision did not specify how to measure pitch,
the County did err in calculating living area because the relevant code provisions
were not ambiguous and did not allow for exclusion of areas with a ceiling height
below five feet. We find no abuse of discretion in the award of statutory costs to
Durland.
FACTS
Durland owns property in Deer Harbor on Orcas Island, in San Juan
County, which is currently used as a boat yard and marina. Heinmiller's
predecessor-in-interest, William G. Smith, owned the property adjacent to and
south of the Durland property ("Heinmiller property"). In 1981, the County issued
a building permit for a storage barn to Smith. The permit approved a barn that
was to be built ten feet from the property line shared with the Durland property.1 A barn was constructed that year. In 1990, Durland sought a conditional use
permit and a shoreline permit. A property line survey revealed that the barn on
1San Juan County Resolution No. 224, in effect at that time, required the barn to be at least ten feet away from the property line. No. 67429-3-1/3
the Heinmiller property was in fact located only 1.4 feet from the property line. To
address this issue, Durland and Smith executed a "Boundary Line Agreement
and Easement" that prevented Durland from building within 20feet of the barn.2 Around 1995, Heinmiller purchased the property from Smith. In 1997, he
converted a portion of the barn to an ADU but did not secure any building or
shoreline permits for this work, in violation of San Juan County Code (SJCC)
requirements. In 2008, Heinmiller filed an application for an upland conditional
use permit seeking authorization to use the ADU as a vacation rental unit.
Because of the application, the County became aware of the ADU conversion. In
February 2008, the County issued a "notice of correction" to Heinmiller, requiring
the ADU to be demolished.3
Heinmiller negotiated with the County regarding the notice of correction.
The County agreed to allow him to seek after-the-fact permits for the ADU before requiring demolition. Accordingly, on April 25, 2008, Heinmiller and the County executed an agreed compliance plan ("compliance plan"). The compliance plan included a section titled "Correction of Violations and Compliance Schedule" that
outlined what actions were necessary to bring the property into compliance with
2The agreement established a common boundary line and, because the new line did not correct the barn's location with respect to setback requirements, created a 20-foot-wide "easement" (actually a restrictive covenant) on Durland's property that terminated upon the removal or destruction of the barn. Durland agreed to the restrictive covenant because he saw a benefit from the barn, which provided a buffer between his industrial property and any residential uses on the far side of the barn. He did not, however, want the barn to be used for residential purposes for fear of conflicts with the industrial use of his property. 3The notice of correction is not in the record. The County hearing examiner's opinion indicates that before the compliance plans were entered into, the County required the ADU to be destroyed. 3 No. 67429-3-1/4
the SJCC. It also stated, in the "Background" section, that the County recognized
that the private restrictive covenant brought the barn into conformance with the
ten-foot setback requirement that applied when the barn was constructed.
One year later, on April 28, 2009, the County and Heinmiller executed a
supplemental agreed compliance plan ("supplemental compliance plan"; both plans will be referred to collectively as "compliance plans"). The supplemental compliance plan stated that Heinmiller could avoid the need for a shoreline substantial development permit and a conditional use permit if certain steps were
taken, including reducing the height of the barn to 16 feet4 Heinmiller planned to reduce the height of the barn by reconfiguring the peak ofthe gable roof to create
a flat portion.
On June 4, 2009, Durland filed an administrative appeal of the
supplemental compliance plan with the County. In a June 8, 2009 letter to Durland, the county planning director wrote:
I write to inform you that there is no administrative appeal process for a neighbor to challenge a Compliance Plan or Amended Compliance Plan. A Compliance Plan is a code enforcement tool that is available to the Administrator to assure compliance with the County Code and is authorized by SJCC 18.100.040(d). Code Enforcement is a matter between the County and the offender and is not subject to administrative appeal by a neighbor.
Clerk's Papers (CP) at 3-4. On August 13, 2009, the County hearing examiner dismissed Durland's appeal on the basis that it was filed one day late.
4SJCC 18.50.330(E) exempts certain structures from shoreline permitting requirements if the structure is no taller than 16 feet. 4 No. 67429-3-1/5
Heinmiller applied for a building permit, change-of-use permit, and ADU
permit as contemplated by the compliance plans.5 The County approved the permits on November 23 and 24, 2009. On December 11, Durland filed an
administrative appeal challenging the permits. He raised the following issues:
1. Whether the permits are consistent with regulations regarding land developed in violation of local regulations. 2. Whether the barn complies with setback requirements. 3. Whether the barn complies with building width limitations for properties with shoreline frontage. 4. Whether the barn complies with waterfront setback requirements for accessory structures. 5. Whether the appropriate shoreline approvals, such as a shoreline conditional use permit, substantial development permit, or shoreline exemption have been obtained. 6. Whether the ADU complies with the living area limitation of 1,000 square feet. 7. Whether the barn complies with roof pitch requirements in the Deer Harbor Hamlet Plan.
See CP at 68-69.
The County hearing examiner considered Durland's appeal at an
evidentiary hearing on May 6, 2010. The hearing examiner determined that the compliance plans were land use decisions subject to LUPA's requirement that appeals be filed within 21 days of issuance. He concluded the compliance plans had resolved certain issues that were now time-barred and could not be raised in
an appeal of the permits. With respect to the ADU permit, however, he concluded
5Durland contends he actively participated in the County's review process for these three permits, but his citations to the record do not show participation during the review process. The record reflects that on October 6, 2007, Durland sent an email to SJC Community Development and Planning raising various concerns about Heinmiller's ADU application, but this was well before the date of the compliance plans. Also, in Durland's notice of appeal to the hearing examiner, he stated that "[appellants have participated in the administrative review process leading up to issuance of the challenged permits." CP at 68. The record is unclear as to the nature and extent of Durland's participation in the permit review process. 5 No. 67429-3-1/6
that the compliance plans "do not substitute for ADU review and approval" and
addressed the living area issue on the merits. He found that the ADU complied
with the 1,000-square-foot living area limit set forth in the SJCC, reasoning that
"living area" did not include spaces where the ceiling height was less than five
feet. As for whether the barn complied with roof pitch requirements, the hearing
examiner concluded:
As noted in the current version of the Deer Harbor Hamlet Plan (adopted 2007), specific regulations for the Deer Harbor area were only first put together in 1999, which was well after the building was constructed in 1981. The pitch requirement referenced by the appellant. . . was adopted in 2007. As a nonconforming use, the subsequently enacted Deer Harbor roof pitch requirements do not apply.
CP at 32.
Durland appealed the hearing examiner's decision by filing a LUPA
petition in Skagit County Superior Court on August 13, 2010. The court
concluded that the compliance plans were land use decisions under LUPA and
that Durland's challenge to the permits largely amounted to a collateral attack on
the compliance plans. The court dismissed any issues resolved by the
compliance plans. After a hearing on the merits, the court upheld the hearing
examiner's decision on the roof pitch issue. It reasoned that the SJCC provides
no guidelines for calculating pitch for a variable-pitch roof and that the 4:12 pitch requirement was susceptible to more than one interpretation, such that deference would be given to the County's interpretation. The court reversed the hearing examiner's computation of the ADU's living area, reasoning that the SJCC No. 67429-3-1/7
definition of "living area" was unambiguous and did not allow for exclusion of
areas with a ceiling height less than five feet. It remanded the ADU permit for
further consideration of that issue and awarded statutory costs to Durland.
Durland now appeals the superior court's ruling that the issues in the
compliance plans were time-barred under LUPA6 and its ruling as to the barn's roof pitch. Heinmiller cross-appeals the superior court's ruling regarding the living
area ofthe ADU and the court's award of statutory costs to Durland.7 DISCUSSION
Standard of Review
LUPA, chapter 36.70C RCW, governs judicial review of land use decisions
in Washington. RCW 36.70C.030. When conducting judicial review under LUPA,
this court sits in the same position as the superior court. Griffin v. Thurston
County. 165 Wn.2d 50, 54-55, 196 P.3d 141 (2008). We review the
administrative record before the hearing examiner, the "local jurisdiction's body
6Durland also contends the hearing examiner erred in concluding that his appeal was time-barred under LUPA because the "decision is outside the authority or jurisdiction of the body or officer making the decision." RCW 36.70C.130(1)(e). We agree. The hearing examiner determined that the compliance plan agreements were a land use decision under LUPA and that Durland's appeal was filed more than 21 days after the compliance plan agreements were executed. Thus, the hearing examiner concluded the appeal was time-barred under RCW 36.70C.040(3). Butthe hearing examiner's authority is limited to that granted by the creating body. Chausee v. Snohomish County Council. 38 Wn. App. 630, 636, 689 P.2d 1084 (1984). Here, SJCC 2.22.030 limits the hearing examiner's authority to consideration of "land use regulations as provided by ordinance." SJCC 2.22.100 sets forth the specific land use regulations the hearing examiner is authorized to consider. Whether a decision is a land use decision under LUPA is not among them. The resolution of this issue is reserved to the superior court. Nonetheless, as Durland concedes, the issue is properly before us because the issue was considered by the superior court.
7The County submits briefing in supportof Heinmiller's position as to the LUPA issue but takes no position regarding the roof pitch or living area issues. For convenience, and because they make substantially the same arguments, the County's arguments will be attributed to Heinmiller when discussing the LUPA issue. 7 No. 67429-3-1/8
or officer with the highest level of authority to make the determination ... ." RCW
36.70C.020(2). Relief is granted only ifthe party seeking relief establishes that
the hearing examiner erred under one of the six standards in RCW
36.70C. 130(1). The following standards are relevant to our determination of the
LUPA issue, roof pitch issue, and living area issue:
(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;[8] (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;
RCW 36.70C.130(1). An appellate court"must give substantial deference to both the legal and factual determinations ofa hearing examiner as the local authority with expertise in land use regulations." Lanzce G. Douglass. Inc. v. City of Spokane Valley. 154 Wn. App. 408, 415-16, 225 P.3d 448 (2010), rev. denied.
169 Wn.2d 1014 (2010) (citation omitted).
8 Under the substantial evidence standard, "there must be a sufficient quantum of evidence in the record to persuade a reasonable person that the declared premise is true." Wenatchee Sportsmen Ass'n v. Chelan County. 141 Wn.2d 169, 176, 4 P.3d 123 (2000). 8 No. 67429-3-1/9
Compliance Plans as Land Use Decisions
The first issue is whether the compliance plans between the County and
Heinmiller were land use decisions under LUPA. A "land use decision" is defined
under LUPA as:
a final determination by a local jurisdiction's body or officer with the highest level of authority to make the determination, including those with authority to hear appeals, on:
(a) An application for a project permit or other governmental approval required by law before real property may be improved, developed, modified, sold, transferred, or used, but excluding applications for permits or approvals to use, vacate, or transfer streets, parks, and similar types of public property; excluding applications for legislative approvals such as area-wide rezones and annexations; and excluding applications for business licenses;
(b) An interpretative or declaratory decision regarding the application to a specific property of zoning or other ordinances or rules regulating the improvement, development, modification, maintenance, or use of real property; and
(c) The enforcement by a local jurisdiction of ordinances regulating the improvement, development, modification, maintenance, or use of real property. . . .
RCW 36.70C.020(2) (Emphasis added).
A petition to review a land use decision is barred under LUPA unless it is
filed within 21 days of the issuance of the land use decision.9 RCW 36.70C.040(3). Furthermore, a party may not collaterally challenge a land use decision for which the appeal period has passed via a challenge to a subsequent
9 It is not clear when the compliance plans were "issued" within the meaning of RCW 36.70C.040(4). However, the parties do notdispute that the 21-day appeal period for the compliance plans, if such a period applied, had passed before Durland filed his appeal ofthe permits. 9 No. 67429-3-1/10
land use decision. Habitat Watch v. Skagit County. 155 Wn.2d 397, 410-11, 120
P.3d 56 (2005) (challenge to grading permit amounted to untimely collateral
attack of earlier special use permit, where authorization for grading permit came
from special use permit, whose appeal period had passed, and where sole basis
for challenging grading permit was that extensions of special use permit were
improper); Wenatchee Sportsmen Ass'n v. Chelan County. 141 Wn.2d 169, 180-
82, 4 P.3d 123 (2000) (challenge to county's approval of plat application based
on challenge to density of plat was untimely collateral attack where petitioner had
not challenged rezone decision establishing allowed density for project two years
earlier). Because LUPA prevents a court from reviewing an untimely petition, a
land use decision becomes valid once the opportunity to challenge has passed.
Wenatchee Sportsmen Ass'n, 141 Wn.2d at 181.
A land use decision is "final" for purposes of LUPA when it "leaves nothing
open to further dispute" and "sets at rest [the] cause of action between the parties." Samuel's Furniture. Inc. v. State. Dep't of Ecology. 147 Wn.2d 440, 452, 54 P.3d 1194 (2002). Afinal decision "'concludes the action by resolving the
plaintiffs entitlement to the requested relief.'" |d. (quoting Purse Seine Vessel Owners v. State. 92 Wn. App. 381, 387, 966 P.2d 928 (1998)). In contrast, an
interlocutory decision intervenes between the commencement and the end ofa suit and decides some point or matter, but is not a final decision of the whole
controversy. ]d.
10 No. 67429-3-1/11
Furthermore, a final land use decision should memorialize the terms of the
decision, not simply reference them, in a tangible and accessible way so that a
diligent citizen may "know whether the decision is objectionable or, if it is,
whether there is a viable basis for a challenge." Vogel v. City of Richland. 161
Wn. App. 770, 779-80, 255 P.3d 805 (2011). It must be clear to a reviewing court
what decision is presented for review. Id. at 780. Mere decisions about the
process to be followed in making a land use decision are not final land use
decisions. ]d. at 778-79. And where a local jurisdiction sets forth a process for
making a land use decision, the land use decision is not final unless the
jurisdiction has complied with the process and the entire process is complete.
See Heller Bldg.. LLC (HBO v. City of Bellevue, 147 Wn. App. 46, 55-56, 194
P.3d 264 (2008) (stop work order not final land use decision where it did not
contain information required by city code, which would have informed landowner
HBL of substance of violations in a way that would allow HBL to correct violation
or make informed decision whether to challenge city's decision); WCHS. Inc. v.
CitvofLvnnwood. 120 Wn. App. 668, 679-80, 86 P.3d 1169 (2004) (letters from
city to landowner not final land use decisions because, among other reasons,
they did not comply with city's own code requirements for distributing notice of
decisions).
11 No. 67429-3-1/12
Applying these principles, we hold that the compliance plans in this case
were not a "final determination," and therefore not land use decisions.10 First, the
plans outline at least two possible courses of action and do not "set at rest" the
cause of action, Samuel's Furniture. 147 Wn.2d at 452. What Heinmiller sought
in negotiating with the County over the notice of correction was to maintain the
ADU. But the compliance plans do not guarantee that he could do so. To
illustrate, the "Correction of Violations and Compliance Schedule" section of the
compliance plan provides, in full:
The parties agree that the owners are required to take the following action to bring the property into compliance with the County Code:
1. Immediately cease all use of the storage structure for habitable purposes. 2. Submit a complete demolition permit for removal of the deck and carport no later than May 1, 2008. Remove the deck and carport no later than 45 days after issuance of the demolition permit.[11] 3. The owners will take EITHER action (a) or (b) as follows: a. Submit necessary permit applications for conversion of a portion of the storage structure to an ADU or bunkhouse. The first step is submittal of complete Shoreline Substantial Development Permit and Conditional Use Permit applications, which will be submitted no later than June 21, 2008. The owners' next step is as follows: i. If the SDP and CUP are approved, the owners will submit complete applications for all other necessary land use approvals such as building permits within 45 days of the approval of the SDP and CUP. The owners will take
10 That the compliance plans were not a land use decision as to the setback issue specifically is consistent with the fact that, when Durland requested a document showing a "Land Use Decision by the County recognizing the barn as a non-conforming structure," which Heinmiller now asserts the compliance plans did, the deputy prosecuting attorney responded in July 2008, "No land use decision 'recognized' the barn as a non-conforming structure or changed it to a non-conforming structure.'" CP at 180.
11 The demolition of the deck, carport, and other alterations are not at issue in this case. 12 No. 67429-3-1/13
action to promptly complete construction and finalize the permits. ii. If either the SDP or CUP are denied, the owners will either (A): obtain a demolition permit for removal of the converted space inside the storage structure within 60 days and restore the structure to its permitted configuration for storage no later than 45 days from demolition permit issuance; or (B) identify an alternative method of compliance within 60 days with the agreement of the County, b. Submit a complete demolition permit application for removal of the converted space inside the storage structure no later than June 21, 2008, and restore the structure to its permitted configuration for storage no later than 45 days from demolition permit issuance. 4. Submit complete permit applications no later than June 21, 2008 for the installation or removal of any other alterations of the storage structure which have occurred without the necessary building, electrical, mechanical, or plumbing permits and which are not addressed by a permit application submitted to comply with item (2) or (3) above. These alterations include but are not limited to the addition of exterior siding, extended eaves, heat, plumbing, and windows.
CP at 81-82. As this language shows, the compliance plan did not determine the
course of action between Heinmiller and the County with certainty. As far as such
language indicated, there was nothing for Durland to appeal at that time.
Significantly, one of the courses of action contemplated by the compliance plans-demolition of the ADU-was entirely satisfactory to Durland. It would have
been premature, then, for him to bring a LUPA petition appealing the compliance
plans when it was not apparent that Heinmiller would proceed in an objectionable manner. Furthermore, under section 3(a)(ii)(B), the compliance plan
contemplated the possibility of an unknown course of action within 60 days if the
shoreline permit or conditional use permitwere denied. Requiring Durland to
13 No. 67429-3-1/14
appeal the compliance plans (and what was purportedly decided by them) within
21 days, when Heinmiller had 60 days to pursue a third course not even
described by them, would be illogical.
Next, the compliance plan did not leave "nothing open to further dispute."
Samuel's Furniture, 147 Wn.2d at 452. When Heinmiller approached the County
a year after the compliance plan to propose a change, they agreed to a
supplemental compliance plan. This confirms that the initial plan was not a final
determination of Heinmiller's rights or obligations. The supplemental plan
proposed "an alternative method of legalizing the ADU." CP at 83. Specifically,
Heinmiller proposed obtaining a building permit that would allow remodeling a
portion of the barn to an ADU and reducing the height of the barn to 16 feet,
which "would not require either a shoreline substantial development permit or a
conditional use permit." Id. The supplemental plan stated:
The changes to the Agreed Compliance Plan are as follows:
The parties agree that the owners may take the following action as an alternative to Correction of Violations and Compliance Schedule Action #3 as listed in the Agreed Compliance Plan dated April 25, 2008:
Submit a complete building permit application by July 6, 2009, for the remodeling and conversion of a portion of the storage structure to an ADU and reduction in the height of the structure to no more than 16 feet above existing grade as measured along a plumb line at any point. Height shall be determined in accordance with the interpretation entitled "Height of Accessory Use Shoreline Structures" issued by Rene Beliveau on September 18, 2008. The owners will take action to promptly complete construction and finalize all permits to obtain legal occupancy of the structure.
14 No. 67429-3-1/15
CP at 84. The supplemental plan concluded, "All provisions in the underlying
Agreement shall remain in effect except as expressly modified by this
supplement." Id. The compliance plan was modified by the supplemental
compliance plan one year later and was evidently not final and binding on
Heinmiller.
Heinmiller asserts that the determination of whether the permits were
authorized by the SJCC was made in the earlier compliance plans and could not
be attacked collaterally when the permits were issued. But the compliance plans
did not determine that the permits would be issued; they only stated that if the
permits were obtained, the property would be brought into compliance with the SJCC. They implicitly acknowledge that the permits might not be granted and
that one of the permits that might be issued is a demolition permit.
Heinmiller also contends that permitting collateral challenges to
compliance plans would eliminate their usefulness as code enforcement tools because they would provide no certainty, eliminating their benefits.12 But the plans in this case do not provide the certainty that Heinmiller claims; they do not
12 Heinmiller points out that encouraging the voluntary correction ofviolations is a primary intent behind enforcement actions under SJCC 18.100.010. Development of compliance plans is one method for achieving compliance with the SJCC. If such a plan is developed, the SJCC states that no further code enforcement action will be taken:
Following a notice of violation, the administrator and person in violation may develop a mutually agreeable compliance plan. The compliance plan shall establish a reasonable and specifictime frame for compliance. No further action will be taken if the terms of the compliance plan are met. If no compliance plan is established, enforcement of the violation will proceed. SJCC 18.100.040(D). 15 No. 67429-3-1/16
state that any of the named permits will be granted or that he will ultimately be
able to maintain the ADU.13
Heinmiller further argues that the compliance plans are a final
determination because the County complied with the process for compliance
plans, the compliance plans contained the elements required by the SJCC, and
the process was complete because there was no administrative appeal available.
While these may be necessary to find a final determination under Heller BIdg and
WCHS. these cases do not say that these circumstances are sufficient for a final
decision.
We hold the compliance plans were not land use decisions and Durland's
failure to file a LUPA petition regarding the compliance plans did not bar him from
raising certain issues in his LUPA petition regarding the permits.14 Roofs Compliance with SJCC Pitch Requirement
Durland contends the hearing examiner erroneously approved a building
permit because the modification to the barn's roof would violate roof pitch
requirements. He argues the roof pitch regulation is unambiguous and the
13 We do not suggest that a compliance plan can never be a final determination. We hold only that the compliance plans in this case do not bear the indicia of a final land use decision as described in Samuel's Furniture, 147 Wn.2d at 452.
14 We decline Durland's invitation to decide the setback issue, which was not reached by the hearing examiner or the superior court. This issue involves Durland's argument that the County could not issue permits forthe ADU conversion because the barn was an illegal structure by virtue of the fact that itdid not comply with the ten-foot setback requirement under the original 1981 building permitor then-existing SJCC provisions. He requests this court to rule that (1) the barn was built illegally; (2) the illegality was not cured by the private restrictive covenant; and (3) therefore, permits could not be issued to modify the barn until the illegality was cured, under SJCC 18.100.030(F) and SJCC 18.100.070(D). This issue should be considered by the hearing examiner with the other issues on remand. 16 No. 67429-3-1/17
County had no authority to construe it. He contends the County's approach in
excluding the flat portion of the roof by measuring from the outside edge of the
flat portion of the roof (not from the center of the roof) was not authorized by the
SJCC.
We hold that the result reached by the hearing examiner on this issue was
not an erroneous interpretation of the law or a clearly erroneous application of
the law to the facts, and was supported by evidence that is substantial when
viewed in light ofthe whole record before the court.15 See RCW 36.70C. 130(1). Though we agree with Durland that the roof pitch requirement under the code
provision is unambiguous, stating a minimum pitch of 4:12, the provision sets
forth no guidelines or methodology for calculating pitch.16 Nor does it require a particular type of roof. The roof pitch provision is ambiguous as to how to
measure the pitch of the proposed roof in this case and is subject to more than
one interpretation, such that we give the County's interpretation deference. See
Bostain v. Food Express. Inc.. 159 Wn.2d 700, 716, 153 P.3d 846 (2007) (courts
accord deference to agency's interpretation where (1) agency is charged with
administration and enforcement of statute, (2) statute is ambiguous, and (3)
statute falls within agency's special expertise); Citizens For A Safe Neighborhood
15 The hearing examiner decided this issue by ruling that the Deer Harbor roof pitch requirements adopted in 2007 did not apply to the building because itwas constructed in 1981 and was therefore a grandfathered nonconforming use. The superior court affirmed, but on the ground that the County's interpretation would be given deference. We agree with the superior court and affirm the hearing examiner's ruling on that basis
16 SJCC 18.30.350(H) provides: Roof Pitch. The minimum permitted roof pitch in Deer Harbor is 4:12. The relevant portion of SJCC 18.30.320, Table 3.9, states: "Minimum Roof Pitch 4:12." A flat roof has a pitch of 0:12. 17 No. 67429-3-1/18
v. City of Seattle. 67 Wn. App. 436, 440, 836 P.2d 235 (1992) "It is a well
established rule of statutory construction that considerable judicial deference
should be given to the construction of an ordinance by those officials charged
with its enforcement.") (quoting Keller v. Bellingham. 92 Wn.2d 726, 731, 600
P.2d 1276 (1979)).
Here, the County determined that the pitch of the proposed roof measured
4:12. Associate planner Lee McEnery performed calculations using the building
plans and a scale. She measured from the outside edge of the flat area of the
proposed roof. Testimony presented to the hearing examiner was that the
modification would be consistent with the purpose behind the roof pitch
regulations. McEnery stated that the purpose behind the Deer Harbor roof pitch
requirements is visual. She pointed to SJCC 18.10.020, which provides that one
of the purposes of the Title 18 regulations is aesthetic: "To provide for the
economic, social, and aesthetic advantages of orderly development through
harmonious groupings of compatible and complementary land uses and the
application of appropriate development standards . . ." SJCC 18.10.020(B)(4).
McEnery explained the dominant visual impression from the ground would be
that ofa roof with a 4:12 pitch.17 Durland points to no authority to show that roof pitch for the type of roof
proposed by Heinmiller must be measured differently, i.e., from the center-most
17 Architectural designer Bonnie Ward also testified that the modified roof would have a 4:12 pitch despite having a flattened portion on top, as the flat portion would constitute less than ten percent of the roofand would not be noticeable from the exterior. 18 No. 67429-3-1/19
point of the roof. He presented no expert testimony to the hearing examiner as to
why the proposed roof cannot properly be determined to have a 4:12 pitch.
ADU's Compliance with SJCC "Living Area" Restriction
Heinmiller cross-appeals the superior court's ruling that the County
erroneously computed the ADU's living area where the SJCC definition of "living
area" was unambiguous and did not allow exclusion of areas with a ceiling height
less than five feet. This issue involves SJCC 18.40.240(F) and 18.20.120. The
former provides that an ADU "permitted subsequent to the adoption of this
section shall not exceed 1,000 square feet in living area as defined in SJCC
18.20.120." The latter defines "Living Area" as "the internal space measured from
the interior of the exterior walls, excluding decks, overhangs, unenclosed
porches or unheated enclosed porches, and the stairwell on one level of a two-
story structure."
Here, the County found that Heinmiller's ADU was 955 square feet in
living area. The County's calculation excluded areas where the ceiling height was less than five feet.18 San Juan County Community Development and Planning
Department director and chief building official Rene Beliveau testified before the
hearing examiner that because the SJCC was silent as to measuring living area
in a structure with a sloped roof, the County consulted the International
Residential Code (IRC). The hearing examiner agreed with the County,
18 Implicit in the parties' dispute is the conclusion that, had those areas been included in calculating the size of the ADU, the square-foot limit would not have been met. 19 No. 67429-3-1/23
absurd results canon of statutory construction is applied sparingly. Five Corners
Family Farmers v. State. 173 Wn.2d 296, 311, 268 P.3d 892 (2011) (citing Duke
v. Bovd. 133 Wn.2d 80, 87, 942 P.2d 351 (1997)). Moreover, it is not clear that
such an interpretation leads to absurd results. A property owner chooses where
and how to build an ADU; it does not seem absurd to expect him or her to be
aware of SJCC requirements when planning an ADU. Heinmiller also argues that
Durland's interpretation would lead to the absurd result that all interior space of
any structure in which an ADU is situated would count toward living area, in
addition to the square footage of the ADU itself. He points out that the SJCC
envisions that an ADU may be only part of a structure, such as a garage. See
SJCC 18.20.010 (ADU may be "internal, attached or detached"). That issue is not
presented here. Moreover, the SJCC 18.40.240(F) definition presumes that the
living area of the ADU is being measured ("An accessory dwelling unit. . . shall
not exceed . . .), not the entire building in which the ADU is located.
Deference to the County's interpretation of its code depends on whether
the provision is ambiguous; absent ambiguity, there is no need for the County's
expertise in construing its regulations. Cowiche Canyon Conservancy v. Boslev.
118 Wn.2d 801, 813-14, 828 P.2d 549 (1992). The SJCC provisions limiting an
ADU's living area are not ambiguous.
Superior Court's Award of Costs to Durland
Heinmiller seeks reversal of the superior court's award of statutory costs
to Durland under RCW 4.84.010. This court reviews an award of attorney's fees
23 No. 67429-3-1/24
and costs for abuse of discretion. Ernst Home Center. Inc. v. Sato. 80 Wn. App.
473, 490, 910 P.2d 486 (1996). "The determination as to who substantially
prevails turns on the substance of the relief which is accorded the parties."
Marine Enterprises. Inc. v. Security Pacific Trading Corp.. 50 Wn. App. 768, 772,
750 P.2d 1290 (1988). The prevailing party need not prevail on the entire claim.
Silverdale Hotel Assocs. v. Lomas & Nettleton Co.. 36 Wn. App. 762, 774, 677
P.2d 773 (1984).
Heinmiller contends Durland was not the prevailing party because he
prevailed only on the living area issue. He contends that the court's ruling,
furthermore, did not destroy his ability to maintain the ADU because he can
pursue planning revisions with the County and reconfigure the ADU's size.
We conclude the superior court did not abuse its discretion. Durland
succeeded in the sense that he halted Heinmiller's plan to maintain the ADU by
invalidating the ADU permit. The superior court ruled that the ADU was not in
conformance with the SJCC because of the living area and remanded the matter
to establish compliance with SJCC 18.20.120. At this point it is uncertain whether
Heinmiller will be able to maintain the ADU.
Heinmiller's Request for Attorney's Fees on Appeal
Heinmiller seeks attorney's fees on appeal under RCW 4.84.370, which in
a land use decision "allows reasonable attorneys fees to a party who prevails or
substantially prevails at the local government level, the superior court level, and
before the court of appeals or the supreme court." Julian v. City of Vancouver.
24 No. 67429-3-1/25
161 Wn. App. 614, 631-32, 255 P.3d 763 (2011). We deny the request.
Heinmiller did not substantially prevail before the superior court and he does not
substantially prevail on appeal.
Conclusion
We affirm the superior court's rulings on the roof pitch and living area
issues, as well as its award of statutory costs to Durland, but reverse its ruling
that the compliance plans in this case were land use decisions under LUPA. We
remand to the hearing examiner for consideration of the issues previously
determined to be barred along with any other issues yet to be determined.
Reversed in part, affirmed in part, and remanded to hearing examiner for
further proceedings.
•e^yy<- /1,6,0, WE CONCUR: f ^;yHOptrty
25 No. 67429-3-1/20
reasoning that interpreting SJCC 18.20.120 to include such areas would lead to
absurd or strained results.
Durland argues that SJCC 18.20.120 and 18.20.240(F) are unambiguous
and do not permit the subject areas to be excluded. Heinmiller argues that RCW
19.27.031 imposes a mandatory duty on the County to apply provisions of the
IRC in considering whether to issue a building permit. He contends that
disregarding IRC provisions would lead to absurd results and that the County's
interpretation is entitled to deference.
We agree with Durland and hold that SJCC 18.20.120 does not allow the
exclusion of areas with a ceiling height under five feet from the living area
measurement. Initially, the parties agree that the state building code generally
applies to the County and its interpretation of the SJCC. See RCW 19.27.031
("Except as otherwise provided in this chapter," International Building Code and
IRC "shall be in effect in all counties"), SJCC 18.20.005(B) (SJCC definitions
referencing UBC intended to mirror UBC definitions), SJCC 15.04.050(B) (IRC
adopted "as iffully set out in this article"). For several reasons, however, IRC
provisions do not apply in interpreting SJCC 18.40.240(F) or SJCC 18.20.120.
First, the SJCC provisions are unambiguous. SJCC 18.40.240(F) limits the
size of an ADU to 1,000 square feet of "living area," as that term is defined in
SJCC 18.20.120. SJCC 18.20.120 sets forth areas to exclude from the living
area calculation (decks, etc.), none of which is "areas with a ceiling height of five
feet or less." This unambiguous language cannot be supplemented by other
20 No. 67429-3-1/21
definitions. Unambiguous statutes are not subject to interpretation; one looks at
the plain language of the statute without considering outside sources. State v.
Delgado. 148 Wn.2d 723, 727, 63 P.3d 792 (2003). Furthermore, when the
legislature has defined a term by statute, that definition controls its interpretation.
State v. Watson. 146 Wn.2d 947, 954, 51 P.3d 66 (2002). Words cannot be
added to an unambiguous statute when the legislative body has not included that
language. Davis v. State Dep't of Licensing. 137 Wn.2d 957, 964, 977 P.2d 554
(1999).
Second, the SJCC provisions at issue do not reference state law
definitions. SJCC 18.20.005(B) provides:
All definitions which reference the Revised Code of Washington (RCW), Washington Administrative Code (WAC), and Uniform Building Code (UBC) are intended to mirror the definitions in these codes at the effective date of the Unified Development Code (this code) or as amended. If the definition in this code conflicts with a definition under state law or regulation, the state definition shall control over this definition.
But neither SJCC 18.40.240(F) nor SJCC 18.20.120 references any definition in
the RCW, WAC, or UBC, and the definition of "living area" under SJCC
18.20.120 does not conflict with any state law definitions.
Furthermore, while Heinmiller argues that the IRC and SJCC provisions
reference the same subject matter and should be harmonized, we disagree that
they reference the same subject matter. The IRC provisions that Heinmiller
21 No. 67429-3-1/22
contends were properly considered by the County in excluding the subject areas
are IRC 305.1 (2003) and IRC 202 (2003).19 IRC 305.1 states, in pertinent part: Habitable rooms, hallways, corridors, bathrooms, toilet rooms, laundry rooms and basements shall have a ceiling height of not less than 7 feet (2134 mm). The required height shall be measured from the finish floor to the lowest projection from the ceiling. Exceptions:
3. Not more than 50 percent of the required floor area of a room or space is permitted to have a sloped ceiling less than 7 feet (2134 mm) in height with no portion of the required floor area less than 5 feet (1524 mm) in height.
IRC 202 defines "habitable space" as: "A space in a building for living, sleeping,
eating or cooking. Bathrooms, toilet rooms, closets, halls, storage or utility
spaces and similar areas are not considered habitable spaces." IRC 202 defines
"living space" as "[sjpace within a dwelling unit utilized for living, sleeping, eating,
cooking, bathing, washing and sanitation purposes." None of these IRC
provisions pertain to the specific matter of measuring the living area of an ADU
for the purpose of limiting the ADU's size. Nor do they use the same terminology;
where the SJCC provision limits an ADU's "living area," the IRC definitions refer
to "habitable space" and "living space."
Finally, Heinmiller contends applying a literal interpretation of SJCC
18.20.120, without reference to the IRC, would lead to absurd results because it
would allow for the inclusion of areas that have no utility as living space. But the
19 These provisions are part of the "2003 International Residential Code for One- and Two-Family Dwellings." CP at 170-71. 22