                                                            FILED
                                                        DECEMBER 6, 2018
                                                    In the Office of the Clerk of Court
                                                   WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

AHO CONSTRUCTION I, INC.,                     )
                                              )         No. 35558-6-III
                     Appellant,               )
                                              )
       v.                                     )
                                              )
CITY OF MOXEE, a political subdivision        )         PUBLISHED OPINION
of the State of Washington,                   )
                                              )
                     Respondent.              )

       FEARING, J. —

               In order for an issue to be properly raised before an administrative
       agency, there must be more than simply a hint or a slight reference to the
       issue in the record. King County v. Washington State Boundary Review
       Board, 122 Wn.2d 648, 670, 860 P.2d 1024 (1993) (emphasis added).

       Aho Construction I, Inc. (Aho) appeals from the trial court’s dismissal of its Land

Use Petition Act, chapter 36.70C RCW (LUPA), action on the ground of failure to

exhaust remedies before the Moxee City Council. We must decide how loud, listing,

learned, legally lucid, and longwinded a party’s presentation of an issue or legal

argument must be before an administrative agency in order to exhaust remedies. We hold

that Aho sufficiently exhausted its remedies. We reverse the dismissal of Aho’s LUPA
No. 35558-6-III
Aho Construction v. City of Moxee


action.

                                            FACTS

          Aho Construction submitted applications to the city of Moxee to rezone and

subdivide a twenty-two-acre tract of property that Aho purchased on contract. Aho

submitted a rezone application to Moxee because the development, to be named Rose’s

Place, contemplated ninety-one residences inside the city, which number exceeded the

density allowed by the property’s R-1 single-family zone. Aho sought rezoning to an R-2

single family zone. Aho also submitted to Moxee a preliminary plat for approval.

Pursuant to State Environmental Policy Act of 1971, chapter 43.21C RCW (SEPA)

requirements, Aho additionally filed an environmental checklist with the city.

          The Rose’s Place subdivision application plat map did not extend an existing city

street, Chelan Avenue, through the subdivision. The proposed plat instead depicted

Chelan Avenue terminating one-half block inside the subdivision and near the westerly

border of the subdivision and recommencing in an easterly direction one-half block

before Chelan Avenue would exit the subdivision.

          The city of Moxee provided public notice of Aho Construction’s applications for a

rezone and subdivision approval. Numerous city officials and other government entities

responded to the applications and environmental checklist. Moxee Police Chief Mike

Kisner responded with concerns about the break in Chelan Avenue’s continuity. Kisner

wrote to Moxee’s SEPA official:

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              It appears from a logical stand-point that it [Chelan Avenue] should
      be extended through the plat from Faucher Road [west side of the
      subdivision] to the proposed stub-out on the east side of the plat.
              ....
              Chelan Avenue is an important local access connection through this
      side of the city. It starts at Centennial Street and connects to the west side
      of Faucher Road. This proposal makes the obvious connection on the east
      side of Faucher Road but does provide a continuous connection to the east.
      This discontinuance of street connection will reduce our response time to
      this area and therefore does not promote the public health, safety and
      welfare of the citizens of Moxee.

Clerk’s Papers (CP) at 126. Police Chief Kisner requested that Moxee condition any

approval of the subdivision plat on the extension of Chelan Avenue through the entire

subdivision.

      Trevor Lenseigne, operations chief of East Valley Fire Department, the city of

Moxee’s fire service organization, also expressed concern over Chelan Avenue’s

discontinuance, and he requested the roadway be extended. Lenseigne wrote to Moxee’s

SEPA official:

             In the proposed plat, it would be necessary for our large vehicles to
      make additional turning movements or drive around entire blocks to access
      certain locations if Chelan Avenue is not extended easterly. This could
      delay our response times in an emergency situation.
             We believe it would be in the public’s best interest if Chelan Avenue
      were extended through the plat, as it would provide us with better access to
      the proposed neighborhood and to future neighborhoods to the east.

CP at 129.

      Benjamin Annen, Moxee’s consulting engineer, reviewed the Rose’s Place SEPA

environmental checklist. Annen wrote to the city SEPA official:

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              The preliminary plat layout should be revised to extend Chelan
       Avenue from Faucher Road, continuous through the length of the
       development to the east property line, with provisions for extending in the
       future. Continuity within the roadway network is important as it provides
       consistent roadway connectivity, a reliable block system for various modes
       of transportation, and improved access for emergency vehicles. Consistent
       with previous plats and continuity, typical block lengths should range from
       250 feet to 700 feet in length. Because the distance between Charron Road
       and Moxee Avenue is approximately 1,300 feet, it is our recommendation
       to extend Chelan Avenue through the development as an additional
       east/west roadway, greatly improving continuity.

CP at 123.

       The city of Moxee conducted a review of the preliminary plat application under

SEPA and issued a preliminary mitigated determination of nonsignificance (MDNS).

The preliminary MDNS required that Aho implement various mitigation measures,

including the extension of Chelan Avenue from its intersection with Faucher Road on the

west side of the subdivision across the entirety of Rose’s Place to its eastern boundary.

Moxee issued the preliminary MDNS for purposes of additional comments from the

public, government entities, and Aho.

       John Manix, Aho Construction’s engineer, penned a report to Mel Aho, owner of

Aho, which report Aho forwarded to the city of Moxee with a request for relief from the

mitigation requirement of extending Chelan Avenue. Aho’s engineer disputed the need

to extend Chelan Avenue, while writing that Rose’s Place would add minimal traffic to

the vicinity. Manix also iterated that emergency vehicles would wish to enter Rose’s

Place subdivision from arterials, such as Moxee Avenue, other than Chelan Avenue.

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Manix posited that use of Chelan Avenue would increase emergency vehicles’ response

time.

          Steven Madsen, Aho Construction’s general counsel, also wrote Moxee officials

and complained about the lack of justification for extending Chelan Avenue across the

plat. We repeat below a portion of the lengthy argument presented by Madsen in the

letter. The file given to each Moxee city council member, when the city council later

reviewed Aho’s challenge to the Chelan Avenue extension requirement, included the

letter:

                Chelan Avenue Extension:

                 Washington law is very clear that mitigation requirements imposed
          on land development by municipal jurisdictions must be roughly
          proportional to the environmental Impacts created by the development:

                        Where government issues a land use permit on condition that
                the applicant dedicate land to public use, the government must show
                an ‘essential nexus’ between a ‘legitimate state interest,’ and the
                condition imposed. Nollan v. California Coastal Comm’n, 483 U.S.
                825, 837, 107 S. Ct, 3141, 97 L. Ed. 2d 677 (1987). Further, to
                satisfy the Fifth Amendment, the government must establish that its
                proposed condition is roughly proportional to the Impact the
                proposed development will have on the public problem. Dolan v.
                City of Tigard, 512 U.S. 374, 391, 114 S. Ct, 2309, 129 L. Ed. 2d
                304 (1994). And this requires ‘some sort of individualized
                determination that the required dedication is related both in nature
                and extent to the impact of the proposed development.’ Dolan, 512
                U.S. at 391. We have identified four factors in these concepts: (1) a
                public problem; (2) a development that impacts the public problem;
                (3) governmental approval of the development based on a condition
                that tends to solve the problem; and (4) rough proportionality
                between the proposed solution and the development’s impact on the

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             problem. Burton v. Clark County, 91 Wash. App. 505, 520-23, 958
             P.2d 343 (1998). Benchmark Land Company v. City of Battle
             Ground, 94 Wn. App, 537[,] 972 P.2d 944 (1999).

              In this case, the mitigation measure completely fails the “Dolan
      test.” Primarily, there is no “public problem” which would require such
      an extraordinary mitigation measure. All arterial streets accessing the
      proposed development currently operate at a Level of Service (LOS) A.
      This is the highest level of service under currently accepted traffic
      management measurement systems. There is no evidence that the
      additional traffic created by the proposed development will reduce this LOS
      or otherwise exacerbate any existing traffic problem.
              Likewise, there is no evidence that fire and police services are
      inadequate to service the development. Nevertheless, the City’s “SEPA
      Responsible Official[,]” police and fire departments have all stated support
      for the mitigation measure. Nowhere is there any explanation for how the
      requirement of the extension of Chelan Avenue through the proposed
      development mitigates an existing problem despite an estimated additional
      cost of hundreds of thousands of dollars to Aho, increased street
      maintenance costs to the City, and the loss of property tax revenue for the
      eight houses sacrificed by the street dedication.
              ....
              The fire district letter claims that if Chelan Avenue is not extended,
      “[t]his could delay our response times in an emergency situation.” This is a
      bald assertion with no facts or evidence to support the kind of
      “Individualized determination” of the proportionality of the mitigation
      measure to the impact created. The fire district goes on to state, “We
      believe it would be in the public’s best interest if Chelan Avenue were
      extended through the plat, as it would provide us with better access to the
      proposed neighborhoods to the east.” Under Kramer v. Clark County, 135
      Wn. App. 1005 (2006), and Burton v. Clark County, 91 Wn. App. 505
      (1998), the City cannot impose road exactions based on theoretical future
      developments that are not part of any existing development plan. As the
      court said in Kramer,

                     Burton made it clear that possible future development is not
             sufficient to show that an exacted road would alleviate a traffic
             problem. Burton, 91 Wn. App. at 528-29. In Burton, it was possible
             for the future road to connect to another public road, but there was

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              no evidence in the record to indicate when it would do so. Burton,
              91 Wn. App. at 528. The court reasoned that in the absence of any
              evidence to indicate when such a road would be built, the exaction
              was not constitutional. Burton, 91 Wn. App. at 528-29. Applying
              this reasoning to the case before us, Kramer’s potential future
              development is not sufficient to require Commerce Park to build an
              access road for Kramer now.
                      Unlimited v. Kitsap County, 50 Wn. App. 723, 727, 750 P.2d
              651, review denied, 111 Wn.2d 1008 (1988), controls this issue. In
              Unlimited v. Kitsap County conditioned a planned unit development
              on building a road to a landlocked commercial property. Unlimited,
              50 Wn. App, at 724. The court noted that there was no expectation
              that this landlocked parcel would be developed at the same time or
              “anytime soon.” Unlimited, 50 Wn. App. at 727. Even if it were,
              the court reasoned, the public has no interest in developing a private
              parcel or property and that it would be manifestly unreasonable for
              the county to exact access from a private developer. Unlimited, 50
              Wn. App. at 727. Similarly, requiring Commerce Park to build
              Kramer an access road that would serve only his parcel is manifestly
              unreasonable.

CP at 159-61 (emphasis added) (lack of case name italics in original).

       When the city of Moxee issued its final MDNS, Moxee retained the condition to

the Rose’s Place subdivision plat approval that Aho extend Chelan Avenue across the

entire plat. The city calculated a need for extending Chelan Avenue through the

subdivision to mitigate the impact caused by dense housing in the subdivision. The city

deemed the street extension necessary to afford ingress and egress of residential traffic

and emergency vehicles.

       Under the city of Moxee’s municipal code, Aho Construction appealed the city’s

final SEPA MDNS to a city hearing examiner. Also, under the city code, Aho appealed


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No. 35558-6-III
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the conditioning of the grant of the rezone and the subdivision plat approval on extending

Chelan Avenue to the hearing examiner.

      Section 16.15.160 of the Moxee Municipal Code (MMC) establishes procedures

for integration of SEPA review into the city’s project permit review process. The code

section includes provisions for appeals of SEPA determinations at MMC 16.15.160(4).

In turn, MMC 16.15.160(4)(b) declares:

             All appeals shall be heard by the hearing examiner in an open record
      public hearing. The hearing examiner’s decision on the SEPA appeal may
      be appealed to the city council at a closed record appeal hearing.

A hearing examiner conducts a consolidated open record hearing on the underlying

project applications and the SEPA appeal.

      Aho attached, to its notices of appeal of the city of Moxee decisions, engineer

John Manix’s report and Steven Madsen’s argumentative letter. The city of Moxee

consolidated Aho’s appeal of the MDNS with the subdivision and rezone approvals’

condition on extending Chelan Avenue.

      The city of Moxee hearing examiner Patrick Spurgin conducted a consolidated

open record hearing on the preliminary plat and rezone applications and the SEPA

appeal. During the hearing, both city staff and Aho representatives, including attorney

Steven Madsen, noted that the principal dispute for both the SEPA appeal and

preliminary plat application concerned the propriety of conditioning approval of the

project on the extension of Chelan Avenue.

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       The hearing examiner issued a written decision. The decision listed Steven

Madsen’s letter as an exhibit before him. According to the hearing examiner, the letter:

              challenged the mitigation measure requiring improvements to the
       Faucher Road/Charron Road intersection to the extent it depended on third
       party approval as a condition of a project permit. He further contested the
       Chelan Avenue extension mitigation condition, asserting legal arguments
       regarding the constitutionality of the extension as an exaction that did not
       have a nexus to any public problem caused from impacts specific to the
       proposed subdivision. He also challenged any reliance on speculative
       future development on neighboring properties as the basis for imposing the
       mitigation condition requiring preservation of the prevailing grid system of
       local access streets, particularly in absence of a street plan, [HE p.100-102]

CP at 204-05. The hearing examiner later, in his decision, noted that Aho repeated the

arguments in the attorney’s letter during the open record hearing.

       In his decision, hearing examiner Patrick Spurgin reversed the city’s MDNS

condition of extension of Chelan Avenue in that the avenue lacked an environmental

impact. This ruling gained Aho Construction only a pyrrhic victory because the hearing

examiner upheld the condition on other grounds when reviewing the rezone application

approval and the preliminary plat application approval. The examiner noted that Rose’s

Place subdivision would exacerbate the public problems referenced in the city’s MDNS.

The hearing examiner ultimately determined that Chelan Avenue must be extended

easterly to create a continuous corridor throughout the plat, because the city may base a

rezone on reasonable mitigation conditions. Also, the city may base a preliminary plat

approval on reasonable conditions as long as the condition contains proportionality to its


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need. In so ruling, the examiner concluded that he lacked authority to declare any city

action to be unconstitutional.

       The Moxee Municipal Code distinguishes between the hearing examiner’s

examination of the city’s SEPA MDNS and the hearing examiner’s review of the city’s

conditional approval of a rezone application and preliminary plat application. The city

code deems the examination of the SEPA MDNS as an appeal, and the hearing

examiner’s decision to be final unless appealed further. MMC 16.15.060(1),

16.15.160(4) and 16.15.190(2)(f). The code deems the consideration of the preliminary

plat approval and rezone approval as a review, after which the hearing examiner presents

a recommendation to the city council. MMC 16.15.190(2)(f). The city council

automatically reviews the recommendation and issues a final decision after a closed

record hearing. MMC 16.60.190 declares:

              The city council upon receipt of a recommendation on any
       preliminary plat shall at its next public meeting set the date for a closed
       record hearing to consider the matter in accordance with the procedures and
       standards of Chapter 16 MMC for conducting a closed record hearing.

MMC 16.15.230 defines a “closed record appeal:”

              (1) A closed record appeal shall be the administrative appeal on the
       record to the city council following a previous open record hearing on the
       project permit application before the hearing examiner.
              (2) A closed record decision shall be a closed record public meeting
       held by city council prior to the issuance of a final decision, but follows a
       previous open record hearing on the project permit application before the
       hearing examiner. With the exception of variances, appeals of Level 1 or 2
       decisions, and appeals of SEPA decisions, the final decision on the project

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No. 35558-6-III
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       permit will be rendered by the city council.
              (3) Closed record appeal/decision hearing shall be on the record, and
       no new evidence may be presented.

       Aho Construction did not appeal the hearing examiner’s SEPA appeal decision,

presumably because Aho prevailed. The city of Moxee did not appeal the SEPA

determination either. Pursuant to MCC, the Moxee City Council then automatically

conducted a closed record hearing, during one of its regular city council meetings, to

consider the hearing examiner’s recommendations with regard to the conditions imposed

on the rezone application and the preliminary plat application. Steven Madsen, Aho’s

general counsel, appeared at the city council hearing on behalf of Aho.

       During the course of the Moxee City Council meeting, Moxee Mayor Gregory La

Bree announced the hearing as follows:

              Item No. 2 on the agenda is a closed public hearing to consider the
       recommendation issued by the hearing examiner for the 91 Lot Long Plat
       known as the Plat of Rose’s Place, File No. SUBD 2016-01.
              At this time I’ll open the closed-record hearing to consider the
       recommendations of the hearing examiner for a 91 Lot Long Plat known as
       the Plat of Rose’s Place, File No. SUBD 2016-01. No new testimony will
       be heard.
              First we will hear the City staff, then we’ll hear the applicant, and
       then I will give the City staff a chance to respond to the applicant's
       comments.

CP at 269. Thereafter, Bill Hordan, Moxee’s planning consultant, spoke at length as to

the history behind the dispute between Aho and the city of Moxee and to the justification

of the condition to extend Chelan Avenue. Hordan noted:


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No. 35558-6-III
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               So the second comment period produced a letter from the
       proponent’s [Aho’s] engineer with reasons why he didn’t believe Chelan
       Avenue should be constructed to and through the plat.
               And speaking of generalities, before they’ll have an opportunity to
       talk, they mainly indicated that—the engineering—that it did not affect the
       level of service of these three agencies in the area.
               The second comment period also produced a letter from the
       proponent’s attorney. And he’s indicated that the proponents felt the
       requested mitigation was a taking of the properties and not warranted. The
       proponent’s attorney also stated in his letter that the proponent has concerns
       about the development of the intersection of Charron Road and Faucher
       Road and how that was to be accomplished.

CP at 270. Hordan added that Aho appealed to the hearing examiner and the notice of

appeal attached the engineer’s and attorney’s letters.

       After Bill Hordan presented city staff’s position in favor of adopting the hearing

examiner’s recommendation, Moxee Mayor Gregory La Bree asked if anyone had

comments. Aho Construction attorney Steven Madsen responded:

               MR. MADSEN: My name is Steve Madsen. I am general counsel
       for AHO Construction, the so-called attorney that’s referenced in the
       documents. I understand Mr. Noe [Moxee counsel] is on the phone?
               MR. NOE: Yes.
               MR. MADSEN: I guess my—I discovered a query, my
       understanding is—I just drove here from Vancouver, Washington, literally
       into the parking lot as the meeting started so I apologize if I’m a little short-
       winded.
               My understanding is that this is closed-record hearing, how is it that
       we’re having testimony here tonight?
               MR. NOE: Who are you addressing your question to?
               MR. MADSEN: Mr. Noe, yes, I’m sorry, you, Mr. Noe.
               MR. NOE: There wasn’t any testimony. That was just a presentation
       to city council of the project itself. Everything that was talked about was
       previously talked about with the hearing examiner.
               MR. MADSEN: Well, I guess I would object to substantial

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No. 35558-6-III
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      characterizations of the hearing examiner’s opinion. They’re in writing and
      they speak for themselves anyway, I’ll continue with my comments, then.
              First of all, generally the reiteration of the facts here are correct,
      couple of exceptions I take. One is the decision of the SEPA was final,
      that’s not a recommendation. This body has no jurisdiction over that
      decision. The City had the ability to appeal, the appeal period has passed,
      that was done.
              I would object to the characterization that the hearing examiner ruled
      that this is not a taking. To the contrary, the hearings examiner was very
      clear that in oral comments stating his opinion, he did not have jurisdiction
      to rule on the face of this claim, that—and as I interpret the finding No. 5,
      that merely found it was within the City’s general plan to make that
      requirement of the throughway of Chelan Avenue, that doesn’t mean the
      City doesn’t have to pay for it. In this case, the bill’s over $500,000 and we
      have that uncontroverted here in the record and that’s what the bill is going
      to be in a land use petition act claim.
              So it’s our position that, guess what, the City could require it under
      its own power of eminent domain, it’s going to have to do that to take
      Chelan Avenue from this subdivision, that’s really our only comment here.
              We believe that the hearing examiner was not ambiguous in his
      findings, he simply didn’t rule on the issue of whether or not this
      constituted an unconstitutional taking, that is in conversion of private
      properties for public use without just compensation, and that remains our
      position here tonight. Thank you.

CP at 272.

      The Moxee City Council unanimously voted to approve the hearing examiner’s

recommendation to require the extension of Chelan Avenue as part of the rezone

application approval and the preliminary plat application approval.




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                                       PROCEDURE

       Aho Construction filed suit against the city of Moxee in superior court. The suit

combined an RCW 36.70C LUPA claim with a complaint for damages under RCW 64.40

and a suit for damages for an unlawful taking under Washington State Constitution article

I, section XVI. As part of its LUPA claim, Aho contended that the city of Moxee

adopted a land use decision outside its authority by imposing a condition of approval

requiring Aho to extend Chelan Avenue. Moxee also violated its city code by demanding

the extension. According to Aho, Moxee breached the takings clause of the state

constitution and the language of RCW 82.02.020 by demanding the extension without

demonstrating that the exaction was reasonably necessary as a direct result of the

proposed development or plat or demonstrating that the exaction was roughly

proportional to the alleged impacts of the proposed development. Finally, Aho alleged in

its LUPA petition that Moxee’s land use decision breached United States Supreme Court

decisions demanding an essential nexus between a legitimate state interest and the

exaction imposed.

       The city of Moxee filed a motion to dismiss and argued that Aho Construction

failed to exhaust its administrative remedies in failing to raise its arguments before the

Moxee City Council. In response, Aho contended that it raised its issues already during

the open record hearing before the hearing examiner and was not required to reiterate

those contentions during a closed record review with the Moxee City Council. The

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superior court granted the motion to dismiss. The court dismissed all three causes of

action.

                                    LAW AND ANALYSIS

          We first identify the substantive causes of action pending before us and the

questions for us to decide. Aho Construction assigns error to the trial court’s dismissal of

its LUPA petition for failure to exhaust its administrative remedies. Aho assigns no error

to the dismissal of its claim under RCW 64.40 or its state inverse condemnation cause of

action. We note that a property owner may combine a claim for compensation with a

LUPA petition and that the procedures and standards applied to a LUPA petition do not

extend to the claim for damages. RCW 36.70C.030. RCW 64.40.020(1) attaches

exhaustion of remedies requirements to an RCW 64.40 claim, but Aho’s inverse

condemnation action may not have faced any exhaustion requirement. Nevertheless, we

deem unchallenged the dismissal of the RCW 64.40 and inverse condemnation causes of

action, and we only address whether Aho failed to exhaust its remedies under LUPA.

          Our determination to limit our review to Aho Construction’s LUPA claim does not

negate Aho’s ability to assert, within the context of its LUPA suit, that the city of

Moxee’s conditional approval of the rezone and preliminary plat constitutes an

unconstitutional taking. Under RCW 36.70C.130(1), the superior court grants relief in a

LUPA action if:



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No. 35558-6-III
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               (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.

(Emphasis added.)

       LUPA, chapter 36.70C RCW, governs judicial review of land use decisions.

RCW 36.70C.030. RCW 36.70C.060 addresses standing under LUPA and incorporates

an exhaustion of remedies requirement for standing. The statute declares:

               Standing to bring a land use petition under this chapter is limited to
       the following persons:
               ....
               (d) The petitioner has exhausted his or her administrative remedies
       to the extent required by law.

The statute states nothing of the degree of participation or the specificity with which

issues must be raised before an administrative agency or municipality to seek judicial

review. Citizens for Mount Vernon v. City of Mount Vernon, 133 Wn.2d 861, 868, 947

P.2d 1208 (1997). The superior court lacks jurisdiction over a LUPA petition if the

petitioner failed to exhaust remedies. Knight v. City of Yelm, 173 Wn.2d 325, 336-37,

267 P.3d 973 (2011).



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No. 35558-6-III
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       The exhaustion of remedies prerequisite furthers LUPA’s policy of efficient and

timely review of land use actions. Durland v. San Juan County, 182 Wn.2d 55, 68, 340

P.3d 191 (2014). In all settings, the doctrine of exhaustion: (1) insures against premature

interruption of the administrative process, (2) allows the agency to develop the necessary

factual background on which to base a decision, (3) allows exercise of agency expertise

in its area, (4) provides a more efficient process, and (5) protects the administrative

agency’s autonomy by allowing it to correct its own errors and insuring that individuals

do not ignore its procedures by resorting to the courts. South Hollywood Hills Citizens

Association for the Preservation of Neighborhood Safety and the Environment v. King

County, 101 Wn.2d 68, 73-74, 677 P.2d 114 (1984). Reversal of an agency on grounds

not raised before the agency could create a demoralizing effect on administrative

conduct. Knowing that even decisions made with the utmost care might be reversed on

heretofore undisclosed grounds, administrative agencies could become careless in their

decision-making. King County v. Washington State Boundary Review Board, 122 Wn.2d

at 669 (1993).

       RCW 34.05.554(1), a provision of the Washington Administrative Procedure Act,

chapter 34.05 RCW, requires exhaustion of remedies before challenging agency action in

superior court. Washington decisions apply the same exhaustion principles regardless of

whether the exhaustion requirement arises from the Administrative Procedure Act,

LUPA, or some other source.

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       In order for a litigant to establish exhaustion of administrative remedies, the

litigant must first raise the appropriate issues before the agency. King County v.

Washington State Boundary Review Board, 122 Wn.2d at 668 (1993). We must decide if

Aho Construction apprised the Moxee City Council of the issues Aho seeks to litigate in

its LUPA action. In its LUPA claim, Aho contends Moxee adopted erroneous

interpretations of the law and violated Aho’s constitutional right against the taking of its

property without just compensation. Aho argues that the requirement of extending

Chelan Avenue across Rose’s Place constitutes an unreasonable exaction that lacks

proportionality to the impact of proposed Rose’s Place and that fails an essential nexus

between a legitimate state interest and the exaction imposed.

       We next juxtapose competing Washington Supreme Court decisions advanced by

the city of Moxee and Aho Construction. The city forwards King County v. Washington

State Boundary Review Board, 122 Wn.2d 648 (1993), to demonstrate Aho’s efforts were

inadequate. Aho cites Citizens for Mount Vernon v. City of Mount Vernon 133 Wn.2d

861 (1997), for its contention that it adequately exhausted remedies.

       In Washington State Boundary Review Board, the Supreme Court addressed the

King County Boundary Review Board’s (Board) approval of two proposed annexations

of property into the city of Black Diamond. King County, an annexation opponent,

contended, before the superior court, that the Board’s approval of the annexation violated

King County Ordinance 9849. The superior court agreed. Nevertheless, King County

                                                 18
No. 35558-6-III
Aho Construction v. City of Moxee


never cited the ordinance to the Boundary Review Board or suggested to the Board that

approval of the annexation would violate the ordinance. Extensive testimony of county

officials and numerous letters from the county, before the Board, omitted any reference to

the county ordinance. Therefore, the Supreme Court refused to entertain, on appeal, the

county’s use of the ordinance. Oddly, the city of Black Diamond included a copy of the

ordinance along with a memorandum arguing against preclusive effect of the ordinance in

its submittal to the Boundary Review Board. The Supreme Court still held that King

County’s efforts failed to constitute “more than simply a hint or slight reference to the

issue in the record.” King County v. Washington State Boundary Review Board, 122

Wn.2d at 670.

       In Citizens for Mount Vernon v. City of Mount Vernon, 133 Wn.2d 861 (1997), the

Supreme Court considered the exhaustion doctrine in the context of a LUPA petition that

followed public hearings before a city council. Citizens successfully challenged, before

the city council, the city staff’s approval of a commercial planned unit development. On

appeal to the Supreme Court, the development’s proponents argued that the citizens

lacked standing to challenge the city’s approval because the citizens failed to exhaust

administrative remedies before the city council. The Supreme Court disagreed. Before

the superior court, the citizens challenged the compatibility of the planned unit

development with the underlying zoning. The citizens had not employed the term

“compatibility” before the city council. Still the citizens had challenged the development

                                                19
No. 35558-6-III
Aho Construction v. City of Moxee


as inconsistent with the city’s comprehensive plan. The Supreme Court ruled that LUPA

petitioners did not need to employ precise or technical legal terms in their arguments in

order to exhaust remedies.

       The city of Moxee emphasizes differentiating facts in Citizens for Mount Vernon.

The Supreme Court, in Citizens for Mount Vernon, highlighted the nature of the

administrative proceeding as informal and involving members of the public,

unrepresented by legal counsel, voicing their concern. Moxee observes that lawyers

represented both the city and Aho in a formal adversarial procedure before the city

hearing examiner and the city council.

       We note that the teaching of Citizens for Mount Vernon conflicts with the

principle that holds pro se litigants, although lacking in technical expertise, to the

standards of a lawyer. State v. Bebb, 108 Wn.2d 515, 524, 740 P.2d 829 (1987);

Edwards v. Le Duc, 157 Wn. App. 455, 460, 238 P.3d 1187 (2010); State Farm Mutual

Automobile Insurance Co. v. Avery, 114 Wn. App. 299, 310, 57 P.3d 300 (2002); State v.

Vermillion, 112 Wn. App. 844, 857-58, 51 P.3d 188 (2002). Regardless, we conclude

that Aho complied with a standard for exhaustion of remedies even consistent with a

higher standard that might be applied to represented parties.

       We return to King County v. Washington State Boundary Review Board, 122

Wn.2d 648 (1993). One might conclude that the decision stands more for the proposition

that one does not exhaust remedies when only the opponent notifies the administrative

                                                 20
No. 35558-6-III
Aho Construction v. City of Moxee


agency of a pertinent issue or applicable law rather than standing for the proposition that,

to exhaust remedies, one must present “more than simply a hint or slight reference to the

issue in the record.” King County v. Washington State Boundary Review Board, 122

Wn.2d at 670. This court recently, in Office of Attorney General v. Washington Utilities

and Transportation Commission, 4 Wn. App. 2d 657, 423 P.3d 861 (2018), abandoned

the rule that another party’s raising of an issue does not fulfill the requirement of

exhaustion of remedies. We instead adopted the federal rule that excuses exhaustion

requirements when the administrative agency has the opportunity to consider the identical

issue as a result of the posturing of another party. Natural Resources Defense Council,

Inc. v. United States Environmental Protection Agency, 263 U.S. App. D.C. 166, 824

F.2d 1146, 1151 (1987); Local 512, Warehouse and Office Workers’ Union v. National

Labor Relations Board, 795 F.2d 705, 714 (9th Cir. 1986), abrogated on other grounds

by Hoffman Plastic Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137,

122 S. Ct. 1275, 152 L. Ed. 2d 271 (2002); Buckeye Cablevision, Inc. v. United States,

438 F.2d 948, 951 (6th Cir. 1971).

       We now review other Washington decisions on exhaustion of remedies to help

address the parameters we employ in determining whether Aho Construction exhausted

remedies. In Wells v. Western Washington Growth Management Hearings Board, 100

Wn. App. 657, 683, 997 P.2d 405 (2000), a party challenged the growth management

hearings board’s failure to suspend single-family residences in a watershed. This court

                                                 21
No. 35558-6-III
Aho Construction v. City of Moxee


refused to entertain the challenge because the party failed to sufficiently give notice to the

board of its contention. This court wrote:

               In her opening brief to the Board, Wells included a paragraph that
       she alleges set forth her argument that the RCW 36.70A.302(3)(b)(i)
       exemption was inappropriate for Lake Whatcom:
               The lake’s public health and safety role, plus the above
       interpretation of the SMA’s policies (ergo of GMA) makes the
       exemption provided by RCW 36.70A.302[3](b)(i) inappropriate for
       Lake Whatcom. I request that the Board specifically deny the County
       the use of this exemption in the Lake Whatcom watershed.
               This paragraph, which incorrectly cites the relevant portion of the
       statute, is embedded in a section of the brief entitled “Lake Whatcom
       Watershed.” The brief then refers to various water quality regulations and
       statutes, and reported water quality problems in the Lake Whatcom
       watershed. The superior court rejected Wells’ argument that this paragraph
       adequately raised the issue on appeal.
               We affirm the Skagit County Superior Court order dismissing the
       case. The paragraph cited above is insufficient to show that Wells raised
       the issue of single-family residence permits before the Board. It is merely
       “a hint or a slight reference” to Wells’ argument. Not only did she
       incorrectly cite the statute she intended to refer to, but she never mentioned
       permits for construction of single-family residences. In addition, the
       quoted paragraph, while in bold print, is buried in a lengthy, single-spaced
       brief and is not set out as a separate heading or issue.

Wells v. Western Washington Growth Management Hearings Board, 100 Wn. App. at

683-84 (footnote omitted).

       In Kitsap Alliance of Property Owners v. Central Puget Sound Growth

Management Hearings Board, 160 Wn. App. 250, 272, 255 P.3d 696 (2011), this court

refused to address the property owners’ claim that the board’s decision violated its rights

under RCW 82.02.020. The property owners, in its prehearing brief, mentioned that due


                                                 22
No. 35558-6-III
Aho Construction v. City of Moxee


process principles were codified in RCW 80.02.020, but did nothing further to discuss the

statute’s application to the case. The court, nonetheless, agreed to hear the property

owners’ due process challenge to a critical areas regulation because the board lacked

jurisdiction to resolve constitutional challenges.

        Washington courts’ most recent decision on exhaustion of remedies comes from

this court in Office of Attorney General v. Washington Utilities and Transportation

Commission, 4 Wn. App. 2d 657 (2018). In an investor owned utility ratemaking case,

the Attorney General’s Office argued before the superior court that the Utilities and

Transportation Commission improperly used an attrition adjustment when setting

Avista’s electricity rates. The Commission responded that the Attorney General’s office

waived this argument because it failed to raise the contention before the Commission.

According to this reviewing court, the Attorney General’s office presented its argument

in a:

                single-sentence conclusory paragraph and its brief did not discuss
        the issue further. . . . [The Attorney General’s Office] did not cite any law,
        argue that this made the adjustment legal, or explain the significance of the
        “used and useful” terminology. [The Attorney General’s Office’s]
        treatment of the issue before the [Washington Utilities and Transportation
        Commission] was one sentence in a fifty-nine-page brief, in an
        administrative record spanning thousands of pages.

Office of Attorney General v. Washington Utilities and Transportation Commission, 4

Wn. App. 2d at 678.



                                                 23
No. 35558-6-III
Aho Construction v. City of Moxee


       This court, in Office of Attorney General, based its decision on the Administrative

Procedure Act’s exhaustion statute, RCW 34.05.554(1), rather than the LUPA exhaustion

requirement. Nevertheless, as already noted, the Washington Supreme Court applies the

same standard under each act. This court characterized the Attorney General’s office

treatment of the attrition adjustment issued before the Utilities and Transportation

Commission as “exactly the type of ‘hint’ or ‘slight reference’ to the issue that is

insufficient to preserve it on appeal.” Office of Attorney General v. Washington Utilities

and Transportation Commission, 4 Wn. App. 2d at 678.

       If the Attorney General’s office had been the only one arguing an improper

attrition adjustment, the Office of Attorney General court would have refused to entertain

the argument. Nevertheless, another party had argued in its posthearing brief before the

Utilities and Transportation Commission that Avista’s proposed attrition adjustment did

not satisfy law. This court did not depict the extent to which the other party presented its

argument before the agency, other than quoting portions of two sentences from the

posthearing brief.

       The enduring principle arising from King County v. Washington State Boundary

Review Board reads:

               In order for an issue to be properly raised before an administrative
       agency, there must be more than simply a hint or a slight reference to the
       issue in the record.

122 Wn.2d at 670. Even though the principle might be dicta, we choose to follow this

                                                 24
No. 35558-6-III
Aho Construction v. City of Moxee


principle because subsequent Washington courts consistently recite the principle. Office

of Attorney General v. Washington Utilities and Transportation Commission, 4 Wn. App.

2d. at 678 (2018); Goding v. King County Civil Service Commission, 192 Wn. App. 270,

297, 366 P.3d 1 (2015); ABC Holdings, Inc. v. Kittitas County, 187 Wn. App. 275, 282-

83, 348 P.3d 1222 (2015); Kitsap Alliance of Property Owners v. Central Puget Sound

Growth Management Hearings Board, 160 Wn. App. at 272 (2011); Wells v. Western

Washington Growth Management Hearings Board, 100 Wn. App. at 683 (2000); Mader

v. Health Care Authority, 109 Wn. App. 904, 922 n.37, 37 P.3d 1244 (2002) rev’d in

part, 149 Wn.2d 458, 70 P.3d 921 (2003). Office of Attorney General and Wells

illuminate the “more than a hint” test by providing examples of insufficiency.

      We conclude that the Washington test for exhaustion of remedies imposes a

minimal burden on the challenger of the administrative agency action. Law is not a

mathematical exercise. Thus, we cannot measure what constitutes more than a hint or

greater than a slight reference. Nevertheless, we assemble, from Washington cases,

factors germane to determining sufficiency of exhaustion, which include: the number

of sentences devoted to an issue in any written brief given to the administrative

agency; the amount of language devoted to the argument compared to the amount of

language devoted to other arguments; the clarity of the presentation before the

administrative agency; citations to statutes and case law and the accuracy of the



                                               25
No. 35558-6-III
Aho Construction v. City of Moxee


citations; if the party asserts numerous issues in a brief, whether the issue on appeal

was separated in the brief or introduced with a heading; and whether the challenger’s

presentation to the administrative agency applied facts to the law. We expect further

cases will add to these factors.

       We glean from the record before the Moxee City Council that Aho Construction

repeatedly asserted to the city that the city’s demand for an extension of Chelan Avenue

lacked proportionality and a nexus to a public interest and constituted a taking of property

without just compensation. John Manix, Aho’s engineer, penned a report that disputed

the need to extend Chelan Avenue because the subdivision would add minimal traffic to

the vicinity and increase emergency vehicle response time. Steven Madsen, Aho’s

general counsel, wrote Moxee officials and complained about the lack of justification for

extending Chelan Avenue across the plat. The letter argued that the condition of

extending Chelan Avenue lacked a legitimate state interest and constituted a taking of

property. The letter accurately cited United States Supreme Court and Washington

Supreme Court decisions supporting Aho’s legal position and applied the law to the facts.

Madsen not only cited the law but expounded on the law. The letter focused on the

taking of property without just compensation, without the letter wandering into other

topics. Madsen did not bury Aho’s lack of a nexus, lack of proportionality, and taking

arguments in lengthy briefs containing other arguments. Madsen wrote more than a

sentence and more than a paragraph in favor of Aho’s contentions.

                                                26
No. 35558-6-III
Aho Construction v. City of Moxee


      During the hearing before the city of Moxee hearing examiner, both city staff and

Aho representatives, including attorney Steven Madsen, noted that the principal dispute

for both the SEPA appeal and preliminary plat application concerned the propriety of

conditioning approval of the project on the extension of Chelan Avenue. The hearing

examiner’s written decision listed Madsen’s letter as an exhibit before him. The decision

noted that Madsen’s letter presented constitutional arguments because the extension

condition provided no solution to any public problem. The hearing examiner later, in his

decision, noted that Aho repeated the arguments from Madsen’s letter during the open

record hearing.

      Presumably, the city of Moxee agrees that Aho took steps, before the hearing

examiner, necessary to exhaust remedies and advance its position before the city council.

Presumably, Moxee only contends Aho failed to exhaust administrative remedies before

the city council. Nevertheless, exhaustion of remedies before the hearing examiner

should extend to exhaustion of remedies before the city council since the city council

merely reviewed the hearing examiner’s record and decision in a closed record meeting.

      The hearing examiner’s decision affirming the approval of the rezone and the

preliminary plat conditioned on the extension of Chelan Avenue underwent automatic

review by the Moxee City Council. The city council received the entire record from the

hearing examiner, which record included the letter from Steven Madsen, the report

prepared by John Manix, and the hearing examiner’s decision. All three documents

                                               27
No. 35558-6-III
Aho Construction v. City of Moxee


mentioned Aho’s complaint about the extension of Chelan Avenue in part on taking

grounds. During Moxee consultant Bill Hordan’s presentation before the city council,

Hordan referenced the letters from Madsen and Manix.

       If city council members lacked notice of Aho’s claim of a taking, the council

members failed to read the closed record before it and failed to listen to Steven Madsen.

No city council member is on record stating that he or she did not comprehend Aho’s

arguments because of an inchoate or unintelligible presentation. This court sometimes

receives briefs with less definition and less explanation as to a party’s contentions.

       The city of Moxee faults Aho because Steven Madsen, during his short

presentation to the Moxee City Council, failed to assert the underlying basis for the

takings claim, that being a missing nexus between the public need and the extension of

Chelan Avenue and the absence of proportionality between the cost of the extension and

the public benefit. Aho thereby criticizes Madsen’s presentation to the city council as

failing to provide an articulable reason to reverse the hearing examiner’s ruling. We

recognize the stunted nature of Steven Madsen’s presentation to the Moxee City Council.

Nevertheless, Moxee cites no law that an oral presentation must sufficiently identify the

issues before the administrative agency when written pleadings or letters already identify

the issues, particularly when the oral presentation occurs during a closed record review.

When a party explains its position in writing, sometimes the best oral argument may be

no oral argument. Nevertheless, when he spoke, Madsen emphasized Aho’s contention

                                                 28
No. 35558-6-III
Aho Construction v. City of Moxee


that the city requirement of Chelan Avenue constituted a taking. Madsen asserted that

Aho’s position remained that the city engaged in “an unconstitutional taking that is in

conversion of private properties for public use without just compensation.” CP at 272.

       The city of Moxee contends that Aho may not rely on papers and arguments

presented to the hearing examiner and needed to repeat those arguments before the city

council. Such an argument recycles the argument critical of Steven Madsen’s oral

presentation. Moxee cites no law to support this additional position. The city council

received the entire record before the hearing examiner and was tasked in a closed record

hearing to either affirm or reverse the hearing examiner’s ruling. That mission should

have included a thorough reading of the hearing examiner’s record. Perusal of the record

would enlighten city council members of the issues presented by Aho that became issues

before the superior court in the LUPA action. If the city council did not understand that it

was reviewing Aho’s arguments of a missing nexus, a lack of proportionality, and a

taking, one wonders what the city council believed itself to be reviewing. Notice to the

city council of those issues by the hearing examiner’s record fulfills the purpose of the

doctrine of exhaustion of remedies.

       The city of Moxee characterizes city council members as lay people, who lack

expertise in land use law. This argument ignores the fact that city council members had

available city staff and a consultant with expertise in land use, with the consultant

outlining the issues before the city council. Moxee city council members also had legal

                                                 29
No. 35558-6-III
Aho Construction v. City of Moxee


counsel available and present by phone during the city council meeting. If council

members lacked understanding, the city council could have postponed the meeting or

recessed the meeting into a closed session to speak with legal counsel.

       The city of Moxee also faults Aho because Steven Madsen’s letter failed to cite

RCW 82.02.020, a statute prohibiting a city from assessing payments for a property

development not in proportion to public needs caused by the development. We note that

none of the record before the Moxee City Council cites RCW 82.02.020. Based on

Washington case law, we conclude that, if a party fails to cite a statute or ordinance

before the administrative agency, the party may not rely on the statute or ordinance in the

superior court suit challenging the agency action. Therefore, we rule, based on the

exhaustion of remedies doctrine, that Aho may not rely on RCW 82.02.020 on remand as

part of its LUPA petition claim. This ruling may assist Moxee none since Aho may still

rely on the takings clause of the Washington Constitution and RCW 82.02.020 constitutes

a statutory analog to the constitutional clause.

       The parties agree that Aho could not raise its constitutional arguments before the

city of Moxee hearing examiner. We do not know if Aho could raise constitutional

challenges before the Moxee City Council, but question Aho’s ability to do so when the

city council merely reviewed the record before the hearing examiner. Assuming Aho

could not raise its takings claim before the city council, an additional ground requires

reversal on the basis of exhaustion of remedies at least as to the takings argument under

                                                   30
No. 35558-6-III
Aho Construction v. City of Moxee


the rubric ofLUPA. This court may review an issue not adequately raised before the

administrative agency if the petitioner lacked an opportunity to raise the issue below.

Kitsap Alliance of Property Owners v. Central Puget Sound Growth Management

Hearings Board, 160 Wn. App. at 272 (2011 ).

                                     CONCLUSION

       Aho Construction delivered the Moxee City Council more than an intimation of

the issue, more than an allusion to its argument, and more than a tipoff of a taking. We

reverse the trial court's dismissal of Aho's LUPA petition and remand for proceedings

consistent with this opinion.




WE CONCUR:




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