      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

TOM BUTLER and LINDA LEWIS,              )
husband and wife,                        )   No. 74435-6-1
                                         )
                    Appellants,          )   DIVISION ONE
                                         )
             v.                          )
                                         )
SKAGIT COUNTY, a Washington              )   UNPUBLISHED OPINION
county, and HAZEL FORD,                  )
                                         )   FILED: December 5, 2016
                    Respondents.         )
                                         )

      BECKER, J. — This appeal concerns Skagit County's decision to grant a

reasonable use exception and setback variances for a residence on Guemes

Island. The record and local regulations support the County's decision.

                                      FACTS

      Respondent Hazel Ford owns two small lots in the Holiday Hideaway plat

on Guemes Island. They are located across the street from one another, on

either side of Decatur Place, near the intersection of Decatur Place and Holiday

Boulevard. Appellants Tom Butler and Linda Lewis (the Butlers) live on Decatur

Place near Ford's lots.

      Around 2013, Ford began taking steps to develop her lots. She planned

to build a house on lot 12, the western lot. Lot 12 consists of a rocky knoll above
No. 74435-6-1/2


a steep elevation. She planned to put a garage and septic system on lot 13. The

house would be a two-story single family residence with a footprint of less than

800 square feet. The garage would be 24 by 24 feet.

      The lots are located in a Rural Intermediate zone in which the minimum lot

size for residential development is 2.5 acres. Former Skagit County Code (SCC)

14.16.850(4)(a)(iii) (2009).1 The Skagit County Department of Planning and

Development Services eventually certified lots 12 and 13 as one unit. Even

when the lots are combined into one, the property comprises less than 2.5 acres.

Ford requested, and the department granted, a reasonable use exception from

the minimum lot size requirement. The department also granted Ford's request

for variances from setback requirements so that she could build closer to Decatur

Place and Holiday Boulevard than county regulations would normally allow.

      The Butlers appealed these decisions. A hearing was held in June 2014.

The examiner denied the appeal and made written findings of fact and

conclusions of law in a decision issued on July 10, 2014. The Butlers

successfully appealed to the Skagit County Board of Commissioners on the

ground that the examiner did not make findings to support the variance as

required by law. The county commissioners remanded to the hearing examiner.

After another public hearing, the examiner issued a written decision on February

4, 2015, supplementing the previous decision with additional written findings.

The commissioners affirmed this decision.




       1 Our references to the Skagit County Code are to the version in effect in
2013, the year Ford requested the reasonable use exception and the variances.
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No. 74435-6-1/3

      The Butlers appealed by filing a LUPA2 petition in Snohomish County

Superior Court. The court denied their claims:

      The court concludes as a matter of law that there is substantial
      evidence in the record to support the county's issuance of permits
      for (1) lot consolidation, (2) Reasonable use exception, and (3)
      variance for setbacks and the county's decision was not clearly
      erroneous and that petitioner's LUPA petition is denied.

      The Butlers appeal. They contend the reasonable use exception and

variances were improperly granted.

      When reviewing an administrative decision, we stand in the same position

as the superior court. Wenatchee Sportsmen Ass'n v. Chelan County, 141

Wn.2d 169, 176, 4 P.3d 123 (2000). All evidence and any reasonable inferences

therefrom must be viewed in the light most favorable to the party that prevailed in

the highest forum that exercised fact-finding authority. Schofield v. Spokane

County, 96 Wn. App. 581, 586, 980 P.2d 277 (1999). In this case, the highest

forum that exercised fact-finding authority is the Skagit County Hearing

Examiner.

       A court may provide relief from a local land use decision if the party

seeking relief demonstrates that one of six standards listed in

RCW 36.70C.130(1) has been met. Wenatchee Sportsmen, 141 Wn.2d at 175.

The Butlers seek relief under four of these standards:

              (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;


       2   Land Use Petition Act, chapter 36.70C RCW.
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No. 74435-6-1/4


               (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;

RCW 36.70C.130(1)(a)-(d).

                        REASONABLE USE EXCEPTION

       In the decision issued on July 10, 2014, the hearing examiner determined

it was clear from the record that the Ford property met the criteria of the Skagit

County Code provision addressing reasonable use exceptions. The Butlers

contend the examiner misinterpreted the code. We review issues of statutory

interpretation de novo. McTavish v. City of Bellevue, 89 Wn. App. 561, 564, 949

P.2d 837 (1998).

       The Skagit County Code is organized into titles. Title 14 is "Unified

Development Code." Title 14 is divided into chapters. Chapter 14.10 is

"Variances." Chapter 14.16 is "Zoning." One of the sections in chapter 14.16 is

"General Provisions," former SCC 14.16.850. One of the subsections is former

SCC 14.16.850(4), "Development of Lots of Record." Located here is a provision

that an owner of substandard lots may seek a reasonable use exception to

develop property that does not meet the minimum lot size requirements.

       If an owner of contiguous, substandard lots chooses to aggregate
       the lots. . . and the resulting aggregated lot still does not meet the
       zoning minimum lot size, the lots must meet an exemption in
       Subsection (4)(c) of this Section, or apply for and receive a
       reasonable use exception . . . to be considered for development
       permits.




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No. 74435-6-1/5

Former SCC 14.16.850(4)(a)(iii). Also located here are provisions stating what is

required to establish a reasonable use exception. Former SCC 14.16.850(4)(f)(i-

iii).

        One requirement for a reasonable use exception is that the "proposed use

can otherwise satisfy all other requirements of the Skagit County Code." Former

SCC 14.16.850(4)(f)(i)(B). The Butlers contend Ford's building plan does not

meet the part B requirement because it depends on obtaining variances from

setback requirements.

        The County responds that Ford satisfied the setback requirements of the

code by qualifying for a variance from those requirements. The Butlers contend

the County's interpretation is foreclosed by the first sentence of former SCC

14.16.850(4)(f): "Variances from the requirements of this Section shall not be

considered." Former SCC 14.16.850(4)(f)(i). They say this language means a

property owner who is granted a reasonable use exception may not also obtain a

variance from setback requirements.

        Viewed in the context of the general organization of the code, the phrase

"the requirements of this Section" refers to section .850, the "General Provisions"

of chapter 14.16 SCC on zoning. It does not refer to any section within chapter

14.10 SCC on variances. Therefore, it is not reasonable to interpret former SCC

14.16.850(4)(f)(i) as preventing a landowner who obtains a reasonable use

exception from also meeting the setback requirements through the variance

procedures in chapter 14.10 SCC.




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No. 74435-6-1/6


       The County's interpretation of its ordinances was not erroneous. The

Butlers have not shown a basis for relief from the decision to grant a reasonable

use exception.

                              SETBACK VARIANCES

       The Butlers challenge the findings entered in support of the setback

variances. A finding is clearly erroneous when, "although there is evidence to

support it, the reviewing court on the record is left with the definite and firm

conviction that a mistake has been committed." Anderson v. Pierce County, 86

Wn. App. 290, 302, 936 P.2d 432 (1997).

       The code authorizes variances in "cases that will not be contrary to the

public interest, and where, due to special conditions, literal enforcement of the

provisions of this Code would result in unnecessary hardship." Former SCC

14.10.010 (2009).

       An applicant for a variance must submit a narrative statement

demonstrating the variance complies with various standards. Former SCC

14.10.030(2) (2007). The applicant must demonstrate that without the variance,

she would be denied all reasonable use of her property. Former SCC

14.10.030(2)(f). A variance granted must be the "minimum variance that will

make possible the reasonable use of land, building or structure." Former SCC

14.10.040(1)(b) (2000).

       The Butlers contend that Ford could have developed her property by using

lot 13 for the residence, making it unnecessary to reduce the setbacks for lot 12.




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No. 74435-6-1/7


       The hearing examiner found that "the weight of the evidence in this case

. . . is that the topography of Lot 12 and Lot 13 directs any reasonable

development of those properties to be as requested by Ford."

       The record supports this conclusion. Ford's application explained the

difficulties with the topography of the two lots. The hearing examiner heard

testimony that only about 30 percent of lot 13 is useable for construction

purposes, that it was necessary for Ford to construct the septic system on lot 13,

that construction would have to accommodate the rocky knoll and steep slope on

lot 12, and that Ford would be required to seek setback variances no matter

where she constructed her residence. Based on this evidence, it was reasonable

to conclude that Ford could make reasonable use of her property only if she was

permitted a reduction in setbacks so that she could build the residence on lot 12,

and that the variances granted were the minimum necessary to make reasonable

use possible.

       The Butlers suggest in passing that the variances impermissibly allow

Ford's house to be sited on a steep slope in a landslide hazard area, in violation

of the critical areas ordinance. In the decision of February 4, 2015, the hearing

examiner found that "public health, safety and welfare will be maintained even

with the granting of the setbacks" and the Butlers' claim that aggregation of the

lots violated critical area requirements was "without factual basis." Because the

Butlers do not challenge these findings, and their assignments of error and issue

statements do not mention the critical areas ordinance, no issue derived from the

critical areas ordinance is properly before us and we do not address that topic.



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No. 74435-6-1/8


       Another code requirement is that the "granting of the variance requested

will not confer on the applicant any special privilege that is denied . . . to other

lands, structures, or buildings in the same district." Former SCC 14.10.030(2)(d).

One advantage for Ford of building the residence on lot 12 rather than lot 13 is

that the site will capture a better view of Guemes Channel to the west. The

Butlers argue that allowing Ford to use variances to take advantage of the view

confers a special privilege.

       The hearing examiner rejected this argument with a finding that many of

the homes in the subdivision are built so as to capture views:

       The weight of the testimony in the current hearing is that a large
       percentage of the homes in the Holiday Hideaway Plat take
       advantage of the "view" height difference. That trait is common
       throughout the Plat. It would not confer a special privilege on Ford
       to grant the requested setbacks and development plans.

The examiner found that the Butlers "failed to produce proof under the clearly

erroneous test (or any test) that Ford has received special privileges."

       These findings are not clearly erroneous. There was testimony that about

half the lots in Holiday Hideaway have views. In other words, having a view is

common—it is not a special privilege denied to others. The examiner did not err

in determining that the variance granted Ford no special privilege.

       The approving authority must make certain findings, including whether the

reasons in the application justify granting the variance. Former SCC

14.10.040(1)(a). The Butlers contend the decision to approve the variances must

be reversed because the findings are too conclusory. See St. Clair v. Skagit

County, 43 Wn. App. 122, 129, 715 P.2d 165 (1986). As shown by our



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No. 74435-6-1/9


discussion above, the hearing examiner adequately addressed the variance

criteria and the contested issues.

       The Butlers do not meet their burden of demonstrating they are entitled to

relief under LUPA. The trial court correctly affirmed the County's decision to

grant setback variances to Ford.

                                 ATTORNEY FEES

       The County and Ford request an award of reasonable attorney fees and

costs. An appellate court "shall" award attorney fees to "the prevailing party or

substantially prevailing party on appeal . . . of a decision by a county, city, or

town to issue, condition, or deny a development permit involving a site-specific

rezone, zoning, plat, conditional use, variance, shoreline permit, building permit,

. . . or similar land use approval or decision." RCW 4.84.370(1).

       The County and Ford have substantially prevailed throughout these

proceedings. They requested fees in their brief as required by RAP 18.1(b). In

their reply brief, the Butlers ask that the request be denied, but they offer no

reason why it should be. Instead, they attempt to "reserve their right" to submit

additional briefing and argument. Any such argument should have been made in

the reply brief. RAP 10.3(c). The rules do not give appellants the right to reserve

argument on whether fees should be awarded.

       The respondents' request for fees is granted subject to compliance with

RAP 18.1. A fee request is presented to and decided by a commissioner. RAP

18.1(f). If respondents present an affidavit of fees and expenses under RAP




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No. 74435-6-1/10

18.1(d), appellants will have the right to contest the amount of the award. RAP

18.1(e).

      Affirmed.




                                              ecteie1 J -
WE CONCUR:




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