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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



RACE TRACK, LLC, a Washington                       No. 70553-9-
limited liability company; PACIFIC
GRAND PRIX, LLC, a Washington                       DIVISION ONE
limited liability company; and PACIFIC
RIM PERFORMANCE, INC. d/b/a
PROFORMANCE RACING SCHOOL, a
Washington corporation,

                    Appellants,

             v.



KING COUNTY, a political subdivision                UNPUBLISHED
of Washington State,
                                                    FILED: September 2. 2014
                    Respondent.



      Cox, J. — Activities conducted at Pacific Raceways in King County must

comply with the terms and conditions of the conditional use permit (CUP) for that

property. Pursuant to the County's zoning ordinances, the King County

Department of Development and Environmental Services (DDES) issued a notice

of code violation and order of abatement based on alleged violations of the CUP.

A hearing examiner denied a timely appeal of this notice and order. And a

superior courtjudge substantially affirmed the decision of the hearing examiner in
this Land Use Petition Act (LUPA) proceeding that followed.

       The owners of Pacific Raceways and the operators of businesses on that

property substantially fail to sustain their burdens under LUPA to show that the
No. 70553-9-1/2


hearing examiner's decision was incorrect. We affirm in part, reverse in part, and

remand to the hearing examiner to consider certain modifications to his decision.

       Race Track LLC owns the property known as Pacific Raceways, a vehicle-

related sports and recreation facility. Race Track leases its facilities, including

the road course, drag strip, and kart track, to Pacific Grand Prix LLC (PGP) and

Pacific Rim ProFormance Inc. (ProFormance). PGP is primarily engaged in shift

kart racing. ProFormance Racing School provides high performance driving

instruction. We refer to Race Track LLC, Pacific Grand Prix LLC, and Pacific

Rim ProFormance Inc. collectively as "Race Track and Lessees."

       There is a history of ownership changes, changed uses of the property,

and litigation that we need not describe in detail in this overview. It is sufficient to

say that a CUP for this property was originally issued on June 27, 1972, affirmed

on February 26, 1982 following a 1981 modification, and reinstated on April 30,

1984 following a procedural matter that we need not describe further. The

current CUP is based on the April 30, 1984 reinstatement.

       The CUP Conditions that are relevant to this appeal are:

              1. The hours of tract operation shall be limited to 9:00 a.m. to
       5:30 p.m., for both testing and racing with the following exceptions:

              a. [Pacific Raceways] will be closed to all race testing and
              racing on Monday and Tuesday year-round, provided that
              these days may be used for racing when a rained out event
              could not be scheduled for the following weekend, or when a
              holiday which has a major event associated within it falls on
              a Monday or Tuesday. Race testing is not meant to exclude
              police and emergency vehicle testing and training, or other
              non-race related testing functions that are quiet, non-
              impacting.
No. 70553-9-1/3


               b. [Pacific Raceways] shall provide a minimum of one quiet
               weekend day (Saturday or Sunday) per month during the
               May through September racing season. [Pacific Raceways]
               shall notify Building and Land Development in writing of the
               five designated quiet days prior to May 1st each year.
               [Pacific Raceways] should notify interested community
               representatives in the interest of community relations.



       3. This permit and the conditions imposed herein authorize this use
       on this property and shall be binding on any future owners or
       operators of this facility, as well as the current parties.11!

       In 2003, Race Track and PGP sought to relocate the "go cart track" on the
property. They asserted that the request to move the track was not a change in

use or modification of the CUP conditions that would trigger the need for an

amended CUP. DDES agreed that the request would be acted upon as a

grading permit application. The new track opened in June 2009.

       In recent years, physical changes to the subject property as well as use

and equipment changes for activities on the property resulted in a "new wave of

complaints" to the County about the race track from surrounding community
members. In January 2011, the County issued a notice of violation and order of

abatement (Notice and Order).2 The Notice and Order found that Race Track

and Lessees violated conditions of the CUP and the King County Code. It listed
the following violations:

             1. Failure to comply with the conditions of King County
       Conditional Use (CUP) Permit A-71-0-81, April 30, 1984 Rules and



       1 Administrative Record/SC at 20.

       2 SC at 235-37.
No. 70553-9-1/4


       Procedures, and violation of Sections 21A.02.040(A), 21A.08.100,
       and 21 A.42.190(A), of King County Code (K.C.C.). Specifically.

               A. Use of primary Race Track for race-related functions on
               required quiet days in violation of permit conditions 1A and
               B, including but not limited to operation of ProFormance
               Racing School and use of the track by private vehicles for
               "lapping". DDES alleges that Race Track LLC knowingly
               permits uses on required quiet days which are race-related,
               are not quiet, and are not "non-impacting" in violation of the
               plain language of [the CUP].

               B. Use of shift kart track by vehicles other than shift karts,
               including but not limited to motorcycles and street legal
               automobiles in violation of permit condition 15 requiring all
               improvements and uses to be conducted in accordance with
               the pre-March 31, 1984 plot plan.

               . . . .[3]

       It ordered the following abatement to bring the property into compliance:

               1. Comply with all conditions of [the CUP] including:

               A. Cease all racing and performance driving school
               operations and any other race-related functions, including
               any and all racing, lapping, or similar uses of private vehicles
               on required quiet days by February 21, 2011.

               B. Cease all non-shift kart use of the shift kart track by
               February 21,2011.

                      [4]


       Race Track and Lessees timely appealed the Notice and Order. After

considering over 140 exhibits and receiving evidence from 24 witnesses over 9

days, a hearing examiner denied the appeals. He also modified the Notice and

Order in a way that we describe in more detail later in this opinion.


       3 jd, at 236.

       4 Id.
No. 70553-9-1/5


       Race Track and Lessees timely commenced this LUPA proceeding. The

superior court substantially affirmed the decision of the hearing examiner. But it

reversed a portion of the decision and amended the Notice and Order in ways we

also describe later in this opinion.

       This timely appeal by Race Track and Lessees followed.

                                   LUPA CLAIMS

       Race Track and Lessees argue that the hearing examiner's decision is

incorrect for several reasons under LUPA. For the most part, we disagree.

       LUPA is the exclusive means of judicial review of land use decisions.5

RCW 36.70C.130 outlines the standards in order for the superior court to grant

relief requested by a LUPA petitioner.6 Relief is granted only if the party seeking

relief establishes that the hearing examiner erred under one of six standards.7

       "An appellate court stands in the same shoes as the superior court and

reviews the administrative record."8 Alleged errors of law are reviewed de novo

and questions of fact are reviewed for substantial evidence.9 When reviewing a

decision under LUPA, an appellate court must give substantial deference to both




      5 RCW 36.70C.030.

      6RCW36.70C.130(1).

      7 Durland v. San Juan County, 174Wn. App. 1, 11, 298 P.3d 757 (2012).

      8 Dep't of Dev. and Envtl. Servs. v. King County, 177 Wn.2d 636, 643, 305
P.3d 240 (2013).

      9 Id.
No. 70553-9-1/6


the legal and factual determinations of a hearing examiner as the local authority

with expertise in land use regulations.10

       Race Track and Lessees argue that four of the six standards in RCW

36.70C.130 warrant relief in this case. They specifically rely on the standards set

forth in the following subsections:

       (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;




       (f) The land use decision violates the constitutional rights of the
       party seeking relief.1111

       We address each argument in turn.

                              RCW 36.70C.130(1)(b)

       Race Track and Lessees argue that the hearing examiner's decision is an

erroneous interpretation of the law because "use of the track by ProFormance

complies with CUP Condition 1(a)." For the most part, we disagree.

       We note that the County does not challenge in its briefing whether this

argument properly is one under RCW 36.70C.130(1)(b). Accordingly, we will

analyze this and the remaining claims as presented in the briefing of the parties.


       10 Durland, 174 Wn. App. at 12.

       11 RCW 36.70C. 130(1).
No. 70553-9-1/7


       RCW 36.70C.130(1)(b) provides that the superior court may grant relief if

"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." Whether a decision reflects an erroneous interpretation of the law

under this standard is a question of law that the court reviews de novo.12

       Here, CUP Condition 1(a) states:

             1. The hours of tract operation shall be limited to 9:00 a.m. to
      5:30 p.m., for both testing and racing with the following exceptions:

              a. [Pacific Raceways] will be closed to all race testing and
              racing on Monday and Tuesday year-round, provided that
              these days may be used for racing when a rained out event
              could not be scheduled for the following weekend, or when a
              holiday which has a major event associated within it falls on
              a Monday or Tuesday. Race testing is not meant to
              exclude police and emergency vehicle testing and
              training, or other non-race related testing functions that
              are quiet, non-impactingP3]

      As stated earlier, the Notice and Order found a violation for the following:

             A. Use of primary Race Track for race-related functions on
      required quiet days in violation of permit conditions 1A and B,
      including but not limited to operation of ProFormance Racing
      School and use of the track by private vehicles for "lapping". DDES
      alleges that Race Track LLC knowingly permits uses on required
      quiet days which are race-related, are not quiet, and are not
       "non-impacting" in violation of the plain language of [the CUP].[14]

      To bring the property into compliance, the Notice and Order required Race

Track and Lessees to:



      12 Dep't of Ecology v. City of Spokane Valley, 167 Wn. App. 952, 961, 275
P.3d 367, review denied, 175 Wn.2d 1015 (2012).

       13 SC at 20 (emphasis added).

       14 jd at 236 (emphasis added).
No. 70553-9-1/8


              A. Cease all racing and performance driving school
      operations and any other race-related functions, including any and
      all racing, lapping, or similar uses of private vehicles on required
      quiet days by February 21, 2011 .[15]

      On appeal of the Notice and Order, the hearing examiner concluded:

              10. The provision of Operating Condition No. 1 of the CUP
      is structured to control the hours of track operation. The general
      statement of hours was from 9:00 a.m. to 5:30 p.m., "for both
      testing and racing, with the following exceptions ..." The first
      exception is that the track "will be closed to all race testing and
      racing on Monday and Tuesday year-round ...", but that, "Race
      testing is not meant to exclude police and emergency vehicle
      testing and training, or other non-race related testing functions that
      are quiet, non-impacting." There is no reasonable way that the
      foregoing language can be read as authorizing driver training
      for persons who are not police or emergency vehicle drivers
      on Mondays and Tuesdays at Pacific Raceways (SIR). If the
      language of the CUP is ambiguous in other respects, it does not
      create or harbor any ambiguity on the question in issue. It does
      not authorize the operation of a driving school on Monday or
      Tuesday, or on weekend quiet daysP6]

      The superior court reached the opposite conclusion when reviewing the

hearing examiner's decision:

             ProFormance Racing maintains that its schools and clinics
      do not race or race test on Mondays, Tuesdays, or the required
      quiet summer weekend days. If they are correct, nothing in the
      CUP prohibits non-racing and non-race testing activities that
      are quiet and non-impacting. Under the plain language of the
      CUP, it is not the existence of a driver education school that
      violates the CUP; it is only a use that is not quiet and that is
      impacting that contravenes the permits




      15 ]d

      16 ]d. at 2542 (emphasis added) (alterations in original).

      17 Clerk's Papers at 35 (emphasis added).

                                              8
No. 70553-9-1/9


       We agree with the superior court that the language of this condition does

not, by its terms, prohibit a driver education and training school. But this is

subject to an important proviso: the activities of such a school must be "quiet"

and "non-impacting." To the extent such activities violate these conditions, they

are prohibited. Like the superior court, we conclude that the hearing examiner

erroneously concluded that a driver training school is not permitted under the

CUP.

       But we nonetheless agree with the hearing examiner's ultimate

conclusion that there was a violation of the CUP. The hearing examiner also

concluded that even if a driving school was permitted, the activities by

ProFormance still did not comply because of noise:

              Even if one could interpret the CUP as authorizing a driving
       school on Mondays and Tuesdays, as King County did for a lengthy
       period of time, the training done by ProFormance Racing
       School has not been "quiet" and "non-impacting", as those
       words are commonly understood. The noise heard at nearby
       residential properties has been substantial, and the residents on
       some of those properties have been impacted.f18]

       We previously stated in this opinion that the plain words of the CUP

require that activities on the property must be both "quiet, [and] non-impacting."

To the extent they are not, they violate the CUP. Thus, the hearing examiner

was ultimately correct in deciding that Race Track and Lessees violated this

condition. We consider later in this opinion whether there is substantial evidence

in this record to support the finding that noise violated the CUP as the Notice and

Order stated.



       18 SC at 2542 (emphasis added).
No. 70553-9-1/10


       In sum, Race Track and Lessees fail in their burden to show that the

hearing examiner's decision is an erroneous interpretation of the law to the

extent it is based on the requirement that activities on the property must be

"quiet" and "non-impacting." To the extent the decision rests solely on the view

that the CUP bans a driving school outright, it is incorrect. We discuss later in

this opinion the proper remedy for this error.

       Race Track and Lessees also argue that the hearing examiner's decision

is erroneous for a different reason. They claim that "the County has consistently

defined 'non-impacting' to include the use of street-legal, muffled vehicles—not

just within ambient levels." They argue that the superior court failed "to confirm

that the words 'quiet, non-impacting' means within ambient noise levels."

Because these arguments are not clearly and persuasively made, we do not

address them any further.

                              RCW 36.70C.130(1)(c)

       Race Track and Lessees next argue that the hearing examiner's decision

is incorrect because there is not substantial evidence in the record to support the

hearing examiner's determination that Race Track and Lessees permitted

activities that were neither "quiet" nor "non-impacting" in violation of the CUP.

They also contend that there was no evidence in the record to support the

hearing examiner's determination that in 1989 the County's interpretation of the

CUP "evolved" and "expanded." We disagree with both assertions.

       Under the substantial evidence standard, there must be a "sufficient

quantum of evidence in the record to persuade a reasonable person that the



                                             10
No. 70553-9-1/11


declared premise is true."19 When reviewing a challenge to the sufficiency of the

evidence under this standard, a court views facts and inferences in a light most

favorable to the party that prevailed in the highest forum exercising fact-finding

authority.20 Doing so "'necessarily entails accepting] the factfinder's views

regarding the credibility of witnesses and the weight to be given reasonable but

competing inferences.'"21

       Here, the County prevailed before the highest fact-finding authority: the

hearing examiner. Accordingly, all facts and inferences are viewed in a light

most favorable to the County. Applying this standard, there is substantial

evidence in the record to support the challenged determinations.

       First, there is substantial evidence that Race Track and Lessees permitted

activities that were neither "quiet" nor "non-impacting," in violation of CUP

Condition 1(a).

       As discussed earlier, the hearing examiner determined, "[T]he training

done by ProFormance Racing School has not been 'quiet' and non-impacting', as

those words are commonly understood. The noise heard at nearby residential




      19 Phoenix Dev., Inc. v. City of Woodinville, 171 Wn.2d 820, 829, 256 P.3d
1150(2011).

      20 Id, at 828-29.

      21 Spokane County v. Eastern Wash. Growth Mqmt. Hearings Bd., 176
Wn. App. 555, 565, 309 P.3d 673 (2013) (alteration in original) (internal quotation
marks omitted) (quoting State ex rel. Lige & Wm. B. Dickson Co. v. County of
Pierce, 65 Wn. App. 614, 618, 829 P.2d 217 (1992)), review denied, 179 Wn.2d
1015(2014).


                                             11
No. 70553-9-1/12


properties has been substantial, and the residents on some of those properties

have been impacted."22

      The hearing examiner looked to dictionaries for the definition of "quiet" and

stated that the ordinary meaning is '"still; calm; motionless ... not noisy; hushed .

.. or 'making no noise; silent... free of noise; hushed .. ."23 This was proper.

      Additionally, in one of the hearing examiner's unchallenged findings, he

pointed to specific evidence to support this determination:

              21. The preponderance of evidence at the hearing
      established that noise from vehicles operating at Pacific Raceways
      could be heard at nearby residential properties on Mondays and
      Tuesdays and on designated weekend quiet days. The audibility of
      this off-site noise was testified to by the expert witnesses called by
      both King County and the appellants. The experts called by King
      County and the appellants measured noise levels using different
      standards, and offered different interpretations of "ambient noise
      levels". They also differed in their assessments of the degree of
      "impact" on persons hearing the noise. However, there was no
      substantial disagreement that the noise could be heard by
      surrounding residents.

      Exhibit 61, p. 7, Figures 6 and 7, provides a dramatic depiction of
      the noise differential at one nearby residence on Monday, August
       15, 2011, between times when noise events were and were not
      observed emanating from Pacific Raceways. Although the noise
      level averages, identified as 30 minutes Leq, are moved by only 2.9
      dBA (from 50.5 dBA to 53.4 dBA), the number and amplitude of
      peak noise events during the raceway activity are changed
      dramatically, with numerous events during raceway activity that are
      10 dBA and more in excess of the 30 minute Leq without raceway
      activity.




      22 SC at 2542.

      23 id. at 2535 (internal citations omitted) (quoting Webster's New World
Dictionary 612 (2d ed. 1975); American Heritage Dictionary 1016 (2d ed.
1985)).


                                            12
No. 70553-9-1/13


       In addition, there was substantial testimony offered by King County
       that the noise heard on Mondays, Tuesdays and weekend quiet
       days was disturbing to some community residents. The testimony
       by other community residents, that they did not hear or were not
       bothered by noise from the race track, is credible, but does not
       detract from the fact that other residents did hear the noise and
       were bothered by it, and that the impact on some was
       substantial.'24]

       The record also supports this determination. Many neighborhood

witnesses testified about the loud activities at Pacific Raceways on "quiet days."

Several testified that more noise reaches their homes now than in the past or the

noise has been getting louder. Generally, they described distinct noises coming

from the race track and described the impact of the noise on their lives. For

example, they testified that the track noise interfered with their ability to talk with

others, hold social gatherings, or concentrate on work.

       Race Track and Lessees argue that the hearing examiner's determination

is not supported by substantial evidence because it is based on testimony of

"only some local community members" and these community members are

biased and lack credibility. Specifically, Race Track and Lessees assert that: (1)

the majority of these community members did not report CUP violations, (2)

these community members' testimony identifies significant environmental noise

sources surrounding the track, (3) "[s]ubjective 'annoyance' with sound from

Pacific Raceways does not equate to a violation of the CUP"; (4) these

community members' testimony lacks credibility; and (5) a majority of these

community members "demonstrated that they cannot discern the difference



       24 jcL at 2538.

                                              13
No. 70553-9-1/14


between the ProFormance School and police training." Additionally, Race Track

and Lessees argue that these community members' testimony is "further

undercut by the testimony from [other community members] who are not biased

against the track."

       None of these arguments are persuasive. The controlling rule is that this

appellate court views facts and inferences in a light most favorable to the County,

as the prevailing party below.25 Appellants fail to cite any persuasive rule to the

contrary. In following the controlling rule, we accept the factfinder's views

regarding the credibility of witnesses and the weight to be given reasonable but

competing inferences.26 In this case, the hearing examiner (the fact-finder)

expressly stated that testimony from other community residents "does not detract

from the fact that other residents did hear the noise and were bothered by it, and

that the impact on some was substantial."

       Second, there is substantial evidence to support the examiner's

determination that in 1989, the County's interpretation of the CUP evolved and

activities allowed under the CUP expanded.

       We first note that even if there was no substantial evidence to support this

finding, Race Track and Lessees fail to explain how this would require reversal of

the hearing examiner's decision. This finding regarding evolving interpretation by

the County is not material to the outcome.




       25 See Phoenix Dev., Inc., 171 Wn.2d at 828-29.

       26 Eastern Wash. Growth Mgmt. Hearings Bd., 176 Wn. App. at 565.


                                             14
No. 70553-9-1/15


         In any event, this argument overlooks one of the hearing examiner's other

findings. This other finding details correspondence between the permit

administrator and the track manager in 1989, when the administrator affirmatively

responded that a driver's training school was permitted under the CUP. This

evidence supports the finding that the activities evolved and expanded in 1989.

         In sum, there is substantial evidence to support the hearing examiner's

factual determinations and its decision. We reject the arguments to the contrary.

                               RCW 36.70C.130(1)(d)

         Race Track and Lessees argue that the hearing examiner's decision is

incorrect because the doctrines of equitable estoppel and laches bar

enforcement of the CUP. We disagree.

         Under LUPA, a land use decision is a clearly erroneous application of the

law to the facts if "the reviewing court is left with the definite and firm conviction

that a mistake has been committed."27 But the hearing examiner did not have the

authority to decide claims based on either equitable estoppel or laches.

         Nevertheless, the parties presented evidence on these issues during the

proceedings before the hearing examiner. The superior court considered these

doctrines and rejected application of both doctrines in this LUPA proceeding. So

do we.


         First, Race Track and Lessees argue that the County is estopped from

"reversing its continuous, decades-long interpretations of the CUP Conditions."



         27 Citizens to Preserve Pioneer Park LLC v. City of Mercer Island, 106 Wn.
App. 461, 473, 24 P.3d 1079 (2001).


                                              15
No. 70553-9-1/16


       "Equitable estoppel prevents a party from taking a position inconsistent

with a previous one where inequitable consequences would result to a party who

has justifiably and in good faith relied."28 When equitable estoppel is asserted

against the government, the party asserting estoppel must establish five

elements by clear, cogent, and convincing evidence. Those elements are: "(1) a

statement, admission, or act by the party to be estopped, which is inconsistent

with its later claims; (2) the asserting party acted in reliance upon the statement

or action; (3) injury would result to the asserting party if the other party were

allowed to repudiate its prior statement or action; (4) estoppel is 'necessary to

prevent a manifest injustice'; and (5) estoppel will not impair governmental

functions."29 "The evidence must present unmistakable justification for imposition

of the doctrine when a municipality has acted in its governmental capacity."30

Application of the doctrine against the government is "not favored."31

       We start our consideration of this argument with evaluation whether there

is the required level of proof for the fifth element—whether estoppel will not




      28 Silverstreak, Inc. v. Dep't of Labor & Indus., 159 Wn.2d 868, 887, 154
P.3d 891 (2007).

       29IU (quoting Kramarevckv v. Dep't of Soc. & Health Servs.. 122 Wn.2d
738, 743, 863 P.2d 535 (1993)).

       30 City of Mercer Island v. Steinmann, 9 Wn. App. 479, 482, 513 P.2d 80
(1973).

      31 Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 20, 43 P.3d
4 (2002).


                                              16
No. 70553-9-1/17


impair governmental functions. The level of proof required is clear, cogent, and

convincing.32

       In City of Mercer Island v. Steinmann, this court noted that equitable

estoppel will not apply to a governmental entity "where its application would

interfere with the discharge of governmental duties ... ."33 It stated that estoppel

may be applied equitably against a governmental entity acting in a proprietary

capacity but stated that "the bar of the doctrine is less likely to be applied" when it

acts in a governmental capacity.34 It then quoted authorities that established that

zoning ordinances constitute a governmental function.35

       In concluding that the municipality was not precluded from enforcing

zoning regulations in that case, this court stated, "The governmental zoning

power may not be forfeited by the action of local officers in disregard of the

statute and the ordinance. The public has an interest in zoning that cannot thus

be set at naught."36

       Here, Race Track and Lessees seek to avoid the requirements of an

important governmental function: enforcement of a CUP promulgated under

County zoning laws. Their attempt to do so conflicts with the principles stated in




       32 Lvbbert v. Grant County, 141 Wn.2d29, 35, 1 P.3d 1124 (2000).

       33 9 Wn. App. 479, 481, 513 P.2d 80 (1973).

       34 lU at 482.

       35 See id at 482-83.

       36 id at 483.

                                             17
No. 70553-9-1/18


Steinmann. In short, they fail to fulfill the fifth element of equitable estoppel

against a governmental entity.

       Race Track and Lessees attempt to distinguish Steinmann. They argue

that the unlawful use was clearly prohibited under the zoning code in that case,

and here, there is no plain mandate under the CUP that prohibits driving schools.

This is not a material distinction. While Race Track and Lessees could not have

known driving schools were prohibited, the plain language of the CUP provides

fair notice that any activities had to be "quiet, non-impacting." Activities that did

not meet these requirements were clearly prohibited.

       We next consider the fourth element—that estoppel is necessary to

prevent manifest injustice. Race Track and Lessees also do not persuasively

establish this element. This is particularly so given that the hearing examiner

properly concluded that they violated CUP Condition 1(a) for permitting activities

that were not quiet and non-impacting.

       More importantly, "A 'conditional use permit' is a permitted exception to

zoning ordinances; it allows a property owner to use his or her property in a

manner that the zoning regulations expressly permit under conditions specified in

the regulations."37 "But it is not a 'regularly permitted' use; it is permitted only

upon the grant of a 'conditional use permit'. .. ."38




      37 Weyerhaeuser v. Pierce County, 95 Wn. App. 883, 885 n.1, 976 P.2d
1279(1999).

       3817 William B. Stoebuck & John W. Weaver, Washington Practice:
Real Estate: Property Law § 4.22 (2d ed.).


                                              18
No. 70553-9-1/19


       Here, the race track may operate only under the CUP. Its activities are

not authorized for the area without conforming to the conditions. Accordingly,

estoppel is not necessary to prevent a manifest injustice. Rather, enforcement

of the CUP is necessary to prevent a manifest injustice, namely, permitting

continued noise from the track in this neighborhood. Accordingly, Race Track

also fails to prove this element.

       Additionally, Race Track and Lessees cannot establish the first element—

a statement, admission, or act by the County, which is inconsistent with its later

claims. They argue generally that the issuance of the Notice and Order was

contrary to "the County's 21-years of consistent interpretations allowing driving

schools for street-legal, muffled vehicles on 'quiet days' and Mondays and

Tuesdays."

       It is true that the County took inconsistent positions on whether driving

schools were allowed under the CUP. But the violation was not based solely on

the fact that Race Track and Lessees permitted driving schools. Rather, the

Notice and Order found a violation based on the fact that Race Track permitted

activities that "are race-related, are not quiet, and are not 'non-impacting."39

       And this material portion of this finding is not inconsistent with the

County's prior statements. As the superior court correctly pointed out, the

County consistently represented that such activities were permitted as long as

they were quiet and non-impacting.




       39 SC at 236 (emphasis added).

                                             19
No. 70553-9-1/20


        For example, a 1992 letter from the county to the track manager

expressed concern "regarding noise on quiet days" and said that several sources

stated that it was "not quiet at the track." The letter further stated:

              The type of activities which have been previously approved .
       .. namely filming or video taping, instructional driving schools and
       track maintenance work are all acceptable 'quiet day' activities
       provided they are non-spectator events, use non-impacting
       (muffled) vehicles, create no noise above ambient levels, and
       create no traffic impacts outside the track.[40]

       Additionally, a 2005 letter from DDES stated, "Mon/Tues: Track is closed

to 'racing' events. Training or driving courses involving 'street legal' cars are

allowed as long as the activity is 'quiet and non-impacting.'"41

       Race Track and Lessees fail to show that the County's statements are

inconsistent with its later claims that Race Track violated CUP Condition 1(a) by

permitting activities that were not quiet and non-impacting. Rather, the County

consistently maintained that activities on "quiet days" were subject to noise

restrictions.


       In arguing that equitable estoppel applies, Race Track and Lessees point

to the following finding made by the hearing examiner:

              31. Pacific Raceway's officials and King County DDES
       employees, including management, have agreed over the years
       that the use of the track on Mondays and Tuesdays for emergency
       vehicle testing and training, driver training, car clubs, and similar
       events that operate street legal (licensed) vehicles in a non-racing
       venue, have generally met CUP requirements for those events on




       40 SC at 91 (emphasis added).

       41 id at 129 (emphasis added).

                                              20
No. 70553-9-1/21



       Mondays and Tuesdays and on quiet weekend days to be 'quiet
       and non-impacting'.[42]

       But the County's statements that such activities "generally meet CUP

requirements is not a statement that these activities would always be permitted.

In short, Race Track fails to show inconsistent statements by clear, cogent and

convincing evidence.

       Race Track relies on Silverstreak Inc. v. Department of Labor & Industries

to support its estoppel claim.43 That reliance is misplaced.

       There, the supreme court held that the Department of Labor and

Industries was estopped from enforcing a violation order, because the

Department's present position on the applicability of the prevailing wage act was

inconsistent with the position it adopted in an earlier policy memorandum.44

       Silversteak is distinguishable from this case. Unlike this case, that case

did not involve enforcement of permit conditions or city code, and it did not

involve the public and community members who have an interest in zoning.

Importantly, in that case, the court explained that precluding the Department from

applying its new policy position "does not impair any legitimate department

functions."45




       42 id at 2541.

       43 Opening Brief of Appellants at 23-24 (citing Silverstreak, Inc. v. Dep't of
Labor & Indus., 159 Wn.2d 868, 887, 154 P.3d 891 (2007)).

       44 Silverstreak, 159 Wn.2d at 876.

       45 Id. at 891.


                                             21
No. 70553-9-1/22


       Here, in contrast, for reasons already discussed, governmental functions

would be impaired. Specifically, precluding the County from enforcing the CUP

impairs zoning laws. Additionally, unlike Silverstreak, no manifest injustice would

occur. This conditional use is not authorized for the area without conforming to

the negotiated conditions of the CUP. Accordingly, Race Track and Lessees'

reliance on this case is not persuasive.

       In sum, Race Track and Lessees fail to show that equitable estoppel bars

enforcement of the CUP condition in this case.

       Second, Race Track and Lessees' argument that the doctrine of laches

prevents the County from changing its interpretations of the CUP conditions is

also not persuasive.

       "Laches applies if three conditions exist: '(1) knowledge or reasonable

opportunity to discover on the part of a potential plaintiff that he has a cause of

action against a defendant; (2) an unreasonable delay by the plaintiff in

commencing that cause of action; [and] (3) damage to defendant resulting from

the unreasonable delay.'"46 "'[I]t is generally held that in respect of the

enforcement of zoning ordinances, neither laches nor estoppel applies.'"47

       Here, laches does not apply because the County did not unreasonably

delay enforcing the CUP. As the superior court correctly stated, "[T]he factual



      46 Citizens for Responsible Gov't v. Kitsap County, 52 Wn. App. 236, 240,
758 P.2d 1009 (1988) (guoting Buell v. City of Bremerton, 80Wn.2d518, 522,
495P.2d 1358(1972)).

      47 Steinmann, 9 Wn. App. at 482 (quoting 3 C. Rathkopf, The Law of
Zoning and Planning § 2 (3d ed. 1972)).


                                             22
No. 70553-9-1/23


record established before the Hearing Examiner defeats [Race Track and

Lessees'] argument that there was an undue delay between the County's

knowledge of CUP violations and the issuance of the Notice and Order."

       For example, the record shows that the County received a "new wave of

complaints" about Pacific Raceways in 2010. Additionally, witnesses testified

that the track noise got louder over the years, and became more constant,

especially by 2010. Some witnesses testified that they heard noise every single

day by 2010. Additionally, several witnesses testified that they did not even

know about the CUP until 2010. And some witnesses testified that they did not

make complaints to the County about track noise until 2010.

       Race Track and Lessees cite two extra-jurisdictional cases to argue that

laches should apply.48 But in those cases, the governmental entity delayed six

and eight years respectively before commencing action.49 Those cases are

distinguishable based on that fact alone. Further, one of those cases

acknowledged that "a claim of laches in the zoning context is not judicially

favored and is rarely applied 'except in the clearest and most compelling

circumstances."'50 This is not one of those compelling circumstances.




      48 Opening Brief of Appellants at 28-29 (citing Wieck v. D.C. Bd. of Zoning
Adjustment, 383 A.2d 7 (D.C. 1978); City of Hancock v. Hueter, 118 Mich. App.
811 (Mich. Ct. App. 1982)).

      49 See Wieck, 383 A.2d at 11-12; Hancock, 118 Mich. App. at 818.

      50 Wieck, 383 A.2d at 11 (emphasis added) (quoting Moore v. Bridqewater
Twp., 69 N.J. Super. 1, 25, 173 A.2d 430 (N.J. Super. Ct. App. 1961)).


                                           23
No. 70553-9-1/24


       The failure to prove the second element of laches makes it unnecessary

for us to address either of the remaining two elements. Accordingly, we do not

discuss either.


       We reject application of the doctrine of laches in this case.

       The County also argues that equitable estoppel and laches do not apply

based on RCW 7.48.190. Because of our resolution of these issues in the

manner we already discussed in this opinion, we need not address this

argument.

                              RCW 36.70C.130(1)(f)

       Race Track and Lessees argue that the hearing examiner's decision

violates the constitutional principles of due process and fundamental fairness.

Specifically, they argue the CUP Conditions are unconstitutionally vague as

applied to them because a person of common intelligence cannot determine

which activities are allowed or prohibited. We hold that Race Track and Lessees

fail in their burden to prove beyond a reasonable doubt that there is any

constitutional violation.


       An ordinance is presumed constitutional, and the party challenging it must

demonstrate that it is unconstitutional beyond a reasonable doubt.51 "An

ordinance is unconstitutionally vague if it does not provide 'fair warning and

nondiscriminatory enforcement.'"52 A statute is void for vagueness if it '"is framed



      51 Kitsap County v. Mattress Outlet/Gould, 153 Wn.2d 506, 509, 104 P.3d
1280(2005).

       52 Young v. Pierce County, 120 Wn. App. 175, 182, 84 P.3d 927 (2004)
(quoting City of Seattle v. Eze, 45 Wn. App. 744, 748, 727 P.2d 262 (1986)).
                                            24
No. 70553-9-1/25


in terms so vague that persons of common intelligence must necessarily guess at

its meaning and differ as to its application.'"53 "But the ordinance does not need

to 'meet impossible standards of specificity.'"54 In examining a vagueness

challenge, this court examines the ordinance as applied, not for facial

vagueness.55 An alleged constitutional violation presents a question of law that

this court reviews de novo.56

       Here, we review the challenge to the CUP in the same manner as a

challenge to an ordinance or other law. Race Track and Lessees argue

generally that they are being subjected to ad hoc interpretations of the law by

County officials. They contend the County "issued multiple interpretations over a

21-year time period prior to suddenly reversing that interpretation in 2010." And

they argue in their reply brief that the language "non-race related testing

functions that are quiet, non-impacting" is vague.

       Whatever lack of clarity that exists in some of the language of the CUP is

clearly outweighed by the express language that states that the activities within

the scope of CUP Condition 1(a) must be "quiet and non-impacting." This is not

vague. It provides fair notice that activities allowed under this condition are



       53 id (quoting Mvrick v. Bd. of Pierce County Comm'rs, 102 Wn.2d 698,
707, 677 P.2d 140 (1984)).

       54 id (quoting Anderson v. City of Issaquah, 70 Wn. App. 64, 75, 851 P.2d
744(1993)).

       55
            Id.


      56 Abbey Road Grp., LLC v. City of Bonnev Lake, 167 Wn.2d 242, 250,
218 P.3d 180 (2009).


                                             25
No. 70553-9-1/26


subject to noise restrictions. The County cited this as a basis for its Notice and

Order. Race Track and Lessees fail to specifically articulate how "quiet and non-

impacting" is vague as applied to them.

       Moreover, the CUP does not need to '"meet impossible standards of

specificity.'"57 Thus, even though it does not specifically list the type of activities

that are included within "non-race related testing functions," the condition

nonetheless makes clear that any such activities must be quiet and non-

impacting. Overall, persons of common intelligence would understand the

meaning of this condition, and Race Track and Lessees fail to show beyond a

reasonable doubt that this condition is unconstitutional.


       Race Track and Lessees argue that the supreme court's decision in

Burien Bark Supply v. King County "should control the outcome here."58 Their

reliance on that case is misplaced.

       There, the supreme court concluded that a zoning ordinance was

unconstitutionally vague in its application to Burien Bark Supply.59 Burien Bark

Supply, a beauty bark business, was trying to bring its activities into compliance

with a zoning statute.60 The zoning ordinance permitted manufacturing and




       57 See Young. 120 Wn. App. at 182 (quoting Anderson, 70 Wn. App. at
75).

       58 Appellants Opening Brief at 31 (citing Burien Bark Supply v. King
County, 106 Wn.2d 868, 725 P.2d 994 (1986)).

       59 Burien Bark Supply, 106 Wn.2d at 868-69.

       60 Id.


                                              26
No. 70553-9-1/27


processing "in limited degree."61 The supreme court stated:

       The code does not explain how a procedure is to be deemed
       "limited." We cannot tell, for example, whether one should consider
       the number of steps in the process; the percentage of business
       time devoted to the process; the extent to which the process is
       necessary for the overall business; or the physical size of the
       process. The code unconstitutionally leaves to the discretion of
       county officials the substance of determining what activities are
       prohibited.1621

       Here, in contrast, the phrase "quiet and non-impacting" does not leave to

the discretion of the County officials what activities are prohibited. Rather, the

CUP requires activities that are within these commonly understood terms.

       Further, as the superior court correctly noted, the language at issue in this

case is not a general zoning ordinance, but rather it is a "specific, negotiated

permit that contains clear, express language ('quiet') that it and the community

both knew it must abide by to be able to conduct business under the permit."

       For these reasons, Race Track and Lessees' reliance on this case is not

persuasive.

                         RCW36.700.130(1)(b), (d), and(f)

       Race Track and Lessees argue that the hearing examiner's decision is

incorrect because "vehicles other than karts complies with [the] conditions of the

CUP." Specifically, they argue that the County is barred from prohibiting vehicles

other than karts on the track under "equitable estoppel, laches, and/or




       61 id at 869.

       62 Id. at 871.


                                             27
No. 70553-9-1/28


constitutional principles of due process and fundamental fairness." These

arguments have no merit.

       In general, a party with unclean hands may not assert equitable estoppel

or laches.63 Since these are equitable defenses, they cannot "be urged by those

who withhold information which would have prompted action at an earlier time."64

      Although Race Track and Lessees point to several possible grounds for

reversal and cite to the LUPA statute, their arguments appear to be primarily

based on equitable estoppel. Thus, the County argues that Race Track and

Lessees are not entitled to equitable relief because PGP's owner engaged in

willful misconduct in the permit process when he sought to relocate the kart track.

We agree with the County.

       Here, as discussed previously in this opinion, in 2003, Race Track and

PGP contacted DDES regarding the relocation of the "go cart track." They

asserted that the request to move the track was not a change in use or

modification of the CUP conditions that would trigger the need for an amended

conditional use permit.

      This portion of the Notice and Order alleged a violation for:

              B. Use of shift kart track by vehicles other than shift karts,
      including but not limited to motorcycles and street legal automobiles
      in violation of permit condition 15 requiring all improvements and
      uses to be conducted in accordance with the pre-March 31,1984
       plot plan.1651


        63 Retail Clerks Health & Welfare Trust Funds v. Shopland Supermarket,
Inc., 96 Wn.2d 939, 949, 640 P.2d 1051 (1982).

      64 \±

      65 SC at 236.

                                           28
No. 70553-9-1/29




         To bring the property into compliance, it stated:

               B. Cease all non-shift kart use of the shift kart track by
         February 21, 2011.1661

         The superior court properly concluded that Race Track and PGP's willful

misconduct was a sound basis for King County's violation order and the hearing

examiner's affirmation of the Notice and Order.

         The hearing examiner made several findings about PGP's representations

to the County when it sought to relocate the kart track. Specifically, the hearing

examiner focused on PGP's representation that only "karts" would be using the

track:


               27. Other significant documents submitted to King
         County in 2005 in support of the re-location of the Kart Track
         stated or implied that use of the relocated track would be
         exclusively by go karts or shift karts. They were the
         Environmental Checklist, which stated, "Exhaust and emissions
         from karts will continue to occur as a result of kart track operations",
         and "Long term effects will be the noise created by the karts during
         racing, practice and track operations.. ." (Exh. No. 79, deposition of
         [PGP's owner], exh. No. 7, pp. 5 and 9) The noise study requested
         by King County and submitted by the applicants analyzed only use
         of the new track by karts.

               28. When DDES issued its MDNS and Clearing and
         Grading Permit for relocation of the kart track, it reasonably
         understood from the application documents and other
         communications received from the applicants (Race Track and
         [PGP]), and from the applicants' engineers, that the use proposed
         for the re-located track would be for go karts, shift karts or
         performance karts. If the applicants had a different understanding,
         based upon industry usage of terms or the applicants' intentions,
         they failed to communicate that to King County. Consequently,
         use of the relocated Kart Track by other types of vehicles was
         not considered by King County when reviewing the proposal


         66 id


                                               29
No. 70553-9-1/30


       that resulted in the approval of [the] Clearing and Grading
       Permit.^

       In another finding, the hearing examiner stated:

      Based upon the documents presented to King County by the
      applicants preceding and throughout the application process, King
      County intended, and the applicants either understood or should
      have understood, that the description of uses as "shift kart race
      events, driver training and track rental," limited all uses on the track
      to kartsJ681

      These findings are not challenged. Further, they are supported by the

documents referenced by the hearing examiner. They are also supported by

other evidence in the record, for example, Race Track and PGP's 2003 letter to

the County, which stated, "The go cart track needs to be moved in order for it to

be used by shift carts because the frequency of use will increase and create

conflicts with usage of the road course."69

       In sum, Race Track and Lessees are not entitled to equitable relief.

       Race Track and Lessees argue that "kart track" is an industry term, the

requirements of the CUP are unclear, and they "reasonably believed that those

same activities could continue on the relocated track." They also argue that use

of the track by other vehicles has been the "status quo for years," the County

inspected the track after it was completed, County officials expressly stated that

a wide range of uses are allowed on the track, and they invested substantially in

the track relocation and improvements. But these arguments are equitable in


      67 SC at 2539-40 (emphasis added).

      68 id at 2540.

      69 \_± at 97 (emphasis added).

                                              30
No. 70553-9-1/31


nature. Because Race Track and PGP have unclean hands, these arguments

are not persuasive.

                                        RELIEF

       Based on our rejection of most of the challenges based on LUPA, we

substantially affirm the hearing examiner's decision. We reverse the decision

only to the extent of the modification of the Notice and Order by the hearing

examiner.


       The question, then, is what must be done to address the portion of the

hearing examiner's decision that was incorrect. As previously discussed, the

language of the CUP does not, by its terms, prohibit a driver education and

training school. But the activities of such a school must be "quiet" and "non-

impacting." Among other things, the Notice and Order requires Race Track and

Lessees to "[c]ease all racing and performance driving school operations...

."70 This modification is too broad.

       RCW 36.70C.140 states, "The court may affirm or reverse the land use

decision under review or remand it for modification or further proceedings."71

In our view, this statute does not authorize a reviewing court—either the superior

court or this court—to modify the Notice and Order itself.72 Accordingly, we

remand the decision to the hearing examiner with directions to modify its decision

so that it is not inconsistent with this decision.



       70 Id at 236 (emphasis added).

       71 (Emphasis added.)

       72 See RCW 36.700140.


                                               31
No. 70553-9-1/32


       One final point. Race Track and Lessees claim there is a need to address

"defining whether the terms 'quiet and non-impacting' equate to within ambient

noise levels."73 The County does not respond to this argument. And there is no

further clarification of this claim for purposes of this appeal. Accordingly, we do

not further address this assignment of error.

                                ATTORNEY FEES

      The County seeks an award of reasonable attorney fees on appeal based

on RCW 4.84.370. Because this statute does not authorize an award of attorney

fees to the County under the circumstances of this case, we deny the request.

       RCW 4.84.370 states:

             (1) Notwithstanding any other provisions of this chapter,
      reasonable attorneys' fees and costs shall be awarded to the
      prevailing party or substantially prevailing party on appeal before
      the court of appeals or the supreme court 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, site plan, or similar land use approval or decision. The
      court shall award and determine the amount of reasonable
       attorneys' fees and costs under this section if:

             (a) The prevailing party on appeal was the prevailing or
      substantially prevailing party before the county, city, or town, or in a
      decision involving a substantial development permit under chapter
      90.58 RCW, the prevailing party on appeal was the prevailing party
      or the substantially prevailing party before the shorelinefs] hearings
       board; and

             (b) The prevailing party on appeal was the prevailing party or
      substantially prevailing party in all prior judicial proceedings.

              (2) In addition to the prevailing party under subsection (1) of
      this section, the county, city, or town whose decision is on appeal is


      73 Opening Brief of Appellants at 2.

                                             32
No. 70553-9-1/33


       considered a prevailing party if its decision is upheld at superior
       court and on appeal.1741

       The County initially characterized this case in its briefing as one that

"involvefs] a decision to issue, condition, or deny a conditional use permit." Not

so. As this opinion makes clear, this is a case enforcing violations of a CUP.

Given this mischaracterization of the nature of this proceeding and the lack of

any argument that this proceeding falls within the emphasized language of the

above quotation of the statute, we reject this theory of recovery.

       This approach is consistent with Tugwell v. Kittitas County.75 There,

Division Three denied a request for attorney fees on the basis that the case

involved rezoning, not a development permit.76 Thus, RCW 4.84.370 was

inapplicable.

      The County supplemented its request for fees by citing Mower v. King

County.77 There, the decision on the LUPA appeal was one to enforce an

alleged code violation arising from dumping fill and debris without obtaining a

permit.78 The County prevailed at the hearing examiner level, the superior court,

and at this court.79 This court awarded fees on appeal to the County. In doing



      74 (Emphasis added) (alteration in original).

      75 90 Wn. App. 1, 951 P.2d 272 (1997).

      76idat15.

      77 Statement of Additional Authorities at 2 (citing Mower v. King County,
130 Wn. App. 707, 125 P.3d 148 (2005)).

      78 Mower, 130 Wn. App. at 711.

      79 id at 710-11.
                                            33
No. 70553-9-1/34


so, this court appears to have relied on subsection 2 of the above statute.80 That

subsection provides for an award of fees to a governmental entity whose

"decision" is upheld by the courts. While stating that the plain language of this

subsection supported the award of fees, this court did not expressly address

whether the "decision" was within the scope of the matters described in

subsection 1. We conclude the types of decisions must be the same. And we

know that the decision before us does not fall within the language of subsection

1. Accordingly, we conclude that Mower is distinguishable.

       In sum, the County is not entitled to an award of reasonable attorney fees

on appeal in this case.

       We affirm in part, reverse in part, and remand to the hearing examiner for

modification of the decision so that it is not inconsistent with this decision. We

deny the County's request for attorney fees.

                                                        Cat^
WE CONCUR:




  I f\ CA/X fc Kj     ~J                               rAg^^j




       80 See id. at 720-21.


                                             34
