      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

LEO MCMILIAN, an individual,
                                               DIVISION ONE
                     Appellant,
                                               No. 70515-6-1                  c3
                                                                                t



KING COUNTY, a Washington                      UNPUBLISHED OPINION
municipal corporation,                                                              vO



                     Respondent,

SHERRY MCMILIAN, an individual,

                     Defendant.                 FILED: November 3, 2014



      Dwyer, J. — In McMillan v. King County, 161 Wn. App. 581, 605, 255

P.3d 739 (2011) (hereinafter McMilianJ), we remanded this land use dispute to

the county "hearing examiner for a decision, based on the existing record, as to

whether McMilian established that the wrecking yard use was extant on the

southern parcel prior to 1958." The hearing examiner determined the question

adversely to McMilian. Finding no error in the procedure employed or the

determination made, the superior court affirmed the hearing examiner's

decision—as do we.




       Leo McMilian owns two adjacent parcels of land in unincorporated King

County. He currently operates an automobile wrecking yard on both parcels.
No. 70515-6-1/2



McMilian purchased the northern parcel and the wrecking yard business

associated with that property in 2002. Several months later, McMilian purchased

the southern parcel. Both parcels are currently zoned for residential use.

       In 1958, King County's zoning ordinances were amended such that a

wrecking yard use was prohibited in the area. Because the northern parcel had

been used for a wrecking yard business prior to 1958, the wrecking yard use on

the northern parcel remained a valid nonconforming use. Prior to 2002, some

owners of the northern parcel had also used part of the southern parcel for the

wrecking yard business; thus, at times, the wrecking yard "bulged" past the

boundaries of the northern parcel.

       In 2005, McMilian cleared the southern parcel of much of its vegetation,

placing numerous vehicles thereon. Thereafter, the King County Department of

Development and Environmental Services (DDES) investigated complaints

regarding the southern parcel.

       In 2007, DDES issued a notice and order alleging various violations of the

King County Code (KCC). McMilian administratively appealed the notice of

violation to the Office of the Hearing Examiner for King County. The hearing

examiner at the time was Peter Donahue. McMilian argued, in part, that the

operation of the wrecking yard on the southern parcel was a valid nonconforming

use because the wrecking yard business had spilled over onto the southern

parcel for many years.

       On May 26, 2009, after an administrative hearing, the hearing examiner

issued his report and decision. The hearing examiner found, in pertinent part:

                                       -2-
No. 70515-6-1/3



      4.     An auto wrecking business has long been conducted on the
             property directly abutting to the north, under a series of
             ownerships. During prior ownerships, some spillover of the
             auto wrecking operation occurred onto the subject property,
             which was not owned by the prior ownerships of the auto
             wrecking business (it was purchased by [McMilian] after their
             purchase of the main Astro Auto Wrecking site abutting to
             the north). The spillover consisted of storage of some
             wrecked and dismantled cars and numerous junk auto parts
             and tires. The property was not utilized in active auto
             wrecking operations as was the main operation to the north.

      7.     Upon their purchase of the subject property, the Appellants
             in or around 2005 commenced clearing of the subject
             property of its significant overstory and underbrush
             vegetation and removal of a substantial amount of auto
             parts, tires, a few vehicles, etc. The tree cover was so
             substantial that the vehicles, auto parts, etc., were not visible
             (at least not easily discernible) from aerial photographs
             taken prior to the time of clearing.

      13.    After the clearing and grading activity was performed onsite,
             the Astro Auto Wrecking business expanded substantially
             onto the subject site, utilizing essentially its entirety for
             storage of and processing of wrecked vehicles, in some
             areas stacking them vertically, utilizing typical wrecking yard
             equipment for stacking, hauling and moving wrecked
             vehicles and auto parts. The subject property is utilized
             essentially as an equal component of the previously
             established auto wrecking yard abutting to the north, as one
             whole operation. The subject property is accordingly no
             longer simply a spillover site for informal and minor storage
             and indeed dumping of parts and vehicles.

      The hearing examiner upheld all of the violations alleged in the notice and

order and, reasoning that any prior wrecking yard use of the subject parcel would
have constituted a trespass, concluded that "[t]he subject property does not

benefit from a nonconforming use right to an auto wrecking yard or an auto

storage yard."

      McMilian judicially challenged the hearing examiner's decision and the

                                        -3-
No. 70515-6-1/4



superior court reversed. On further appeal, we reversed the superior court. As

we explained in our opinion, "The hearing examiner did not make any finding with

regard to whether the wrecking yard use was established on the southern parcel

prior to 1958, only that it 'has long been conducted' on the northern parcel and

that some spillover had occurred onto the southern parcel." McMilian I, 161 Wn.

App. at 603. Our opinion required further resolution of a single issue: "We

remand the matter to the hearing examiner for a decision, based on the existing

record, as to whether McMilian established that the wrecking yard use was extant

on the southern parcel prior to 1958." McMilian I, 161 Wn. App. at 605. The

clerk's mandate issued on June 17, 2011.

       Donahue's tenure as King County Hearing Examiner ended on June 15,

2012. Prior to then, Donahue assigned McMillan's case to Stafford Smith, a

hearing examiner pro tern. Donahue informed counsel for both King County and
McMilian via e-mail that Smith would assume responsibility for resolution of the

matter on remand. Neither party objected.

       On June 28, 2012, the hearing examiner submitted a supplemental report

and decision on remand. Therein, he concluded that McMilian did not meet "his

burden of proofto establish that a valid nonconforming use existed on [the

subject parcel] in 1958 prior to the adoption of King County zoning regulations."
McMilian filed a land use petition in superior court, challenging the decision.

       The superior court denied McMillan's appeal. The court concluded that

the hearing examiner's decision was supported by substantial evidence and that
McMillan's due process rights had not been violated. The superior court

                                        -4-
No. 70515-6-1/5



reasoned:


       McMilian has the burden to prove that a lawful wrecking yard use
       existed in 1958 and that it was more than intermittent or occasional.
      In his testimony regarding the condition of the property when he
      was 10 years old Richie Horan disclaimed knowledge of property
      lines. Helene Mecklenburg's description of the property as fenced
      is not conclusive, but weighs against McMilian, and Smith's reliance
      on the 1945 tax form describing a residential property, and the
      1960 aerial photo was proper. The aerial photograph showed no
      evidence of active wrecking yard use of the subject parcel. The
      mere possibility of wreckage under the tree canopy is not sufficient
       to establish the existence of a substantial use.

       This appeal follows.



       Judicial review of land use decisions is governed by the Land Use Petition

Act, chapter 36.70C RCW. We sit in the same position as did the superior court

and apply the standards set forth in RCW 36.70C.130(1) to the administrative

record that was before the body responsible for the land use decision. Whatcom

Countv Fire Dist. No. 21 v. Whatcom County, 171 Wn.2d 421, 426, 256 P.3d 295

(2011). In order to set aside a land use decision, the party seeking relief must

establish that one of the following standards is satisfied:

              (a) The body or officer that made the land use decision
       engaged in unlawful procedure or failed to follow a prescribed
       process, unless the error was harmless;
              (b) The land use decision is an erroneous interpretation of
       the law, after allowing for such deference as is due the construction
       of a law by a local jurisdiction with expertise;
              (c) The land use decision is not supported by evidence that
       is substantial when viewed in light of the whole record before the
       court;
                (d) The land use decision is a clearly erroneous application
       of the law to the facts;
               (e) The land use decision is outside the authority or
       jurisdiction of the body or officer making the decision; or
No. 70515-6-1/6



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

RCW 36.70C. 130(1). "Standards (a), (b), (e), and (f) present questions of law,

which we review de novo." Abbey Rd. Grp., LLC v. City of Bonnev Lake. 167

Wn.2d 242, 250, 218 P.3d 180 (2009). On review of a decision that presents

mixed questions of law and fact, we determine the law independently and apply it

to the facts as found by the hearing examiner. Miller v. City of Bainbridqe Island.

111 Wn. App. 152, 161, 43 P.3d 1250(2002).

                                                 Ill


        We remanded this case for the hearing examiner to decide whether

McMilian established that the wrecking yard use was extant on the southern

parcel prior to 1958. In response to our mandate, the hearing examiner found

that McMilian failed to prove that an auto wrecking yard existed on the subject

parcel at that time.1 This is the factual finding on which we focus our sufficiency

of the evidence review pursuant to RCW 36.70C.130(1)(c).2

        "We defer to the hearing examiner on factual determinations and, under

[RCW 36.70C.130(1)(c)], we will not overturn the examiner's findings of fact

unless they are not supported by evidence that is substantial in view of the entire

record before the examiner." Miller. 111 Wn. App. at 162. "'Substantial evidence

exists where there is a sufficient quantity of evidence in the record to persuade a


        1The hearing examiner denominates this factual finding as a "conclusion." No matter the
label he attaches to it, this "conclusion" is a response to our directive that the hearing examiner
decide a factual issue on remand. We, therefore, review it for what it is—a factual finding.
         2 McMilian challenges a number of other findings. As the finding we examine above is
dispositive, we need not address whether each of the other challenged findings is also supported
by substantial evidence.
No. 70515-6-1/7



fair-minded, rational person of the truth of the finding.'" Hilltop Terrace

Homeowner's Ass'n v. Island Countv. 126 Wn.2d 22, 34, 891 P.2d 29 (1995)

(quoting State v. Maxfield. 125 Wn.2d 378, 385, 886 P.2d 123 (1994)). Our

review is deferential. We view the evidence and any reasonable inferences

therefrom in the light most favorable to the party that prevailed in the highest

forum exercising factfinding authority.3 Schofield v. Spokane Countv, 96 Wn.

App. 581, 586, 980 P.2d 277 (1999).

        The hearing examiner reviewed and considered all of the evidence in the

record pertinent to the question assigned on remand. This consisted mostly of

documentary evidence, including: an aerial photograph taken in 1960 that

showed the wrecking yard parcel next to the vegetated subject parcel; a tax

record from 1945 that showed and described a residence on the subject parcel;

and affidavits submitted by Helene Mecklenburg, who owned the subject parcel

in 1958, and various of McMiiian's customers. He also considered the

transcribed testimony of Richard "Ritchie" Horan.4 After considering the

evidence, the hearing examiner found the aerial photograph and the tax record

most compelling.



        3 Because Donahue, rather than Smith, presided over the evidentiary hearing itself,
McMilian calls upon us to determine whether Smith's assessment of the credibility of the evidence
is entitled to any deference. McMiiian's question is merely theoretical in the context of this case,
given that Smith included only one relevant credibility determination in his report—finding that
McMilian had diminished credibility given his possible motivation to conform his testimony to
serve his personal interests in the case—and his determination of the key factual question was
not based on the manner of presentation of any witness at the evidentiary hearing. We need not
opine on a theoretical inquiry in order to resolve this dispute.
          4 Horan visited the wrecking yard in his youth with his father, who was a mechanic. He
also owned the northern parcel and wrecking yard business from 1977 until 2002, when it was
purchased by McMilian.
No. 70515-6-1/8



       By contrast, the hearing examiner found that the affidavits were

"sufficiently defective as to preclude placing reliance upon any of them." He

noted that the affidavits were vague and provided no solid basis of knowledge

regarding property boundaries. Because he found all of the affidavits to be

"fundamentally flawed documents," he did not rely on any of their averments in

reaching his conclusion.

       In addition, although the hearing examiner credited Ritchie Horan's

testimony regarding his memories of visiting the wrecking yard as a child, he

concluded that it "hardly qualifies as a strong positive identification" of the

boundaries of the wrecking yard. Although Horan had some relatively clear

recollections of the wrecking yard and related structures from his childhood visits,

he "was unaware of property lines" at the time. Horan also attempted to

reconcile aerial photographs with his recollections but struggled to identify the

terrain and structures pictured in the photographs.5

       The hearing examiner focused on the remaining documentary evidence—

the tax record from 1945 and the aerial photograph taken in 1960. Based on

evidence that the property was freshly logged in 1945, the hearing examiner

made a reasonable inference as to the height of the trees shown on the subject

parcel in the aerial photograph. The hearing examiner declined McMiiian's



       5 For example, McMiiian's counsel's examination of Horan included the following
exchange:
       A: You showed this to me earlier.
       Q: Yes. I did.
       A: And I have a hard time with it. . . . But it's hard to determine exactly, but the
       terrain is right.

                                                -8-
No. 70515-6-1/9



invitation to speculate that wreckage could have been stored under the tree

cover, concluding that it was an "improbable hypothesis."

       In the end, the hearing examiner concluded:

       The only completely reliable item of evidence bearing on the status
       of parcel 9038 in the 1958 timeframe is the 1960 aerial photograph
       appearing at exhibit no. 21. It shows an auto wrecking yard well
       established on parcel 9005 with no apparent extension southward
       over the boundary onto parcel 9038. Further, the visual context
       depicted in that timeframe discloses no necessity for the existing
       auto salvage yard on parcel 9005 to expand beyond its boundaries.
       As shown in the 1960 aerial photograph, parcel 9005 itself still
       retained ample unused area for the placement of more vehicles,
       especially near its northwest corner.

       The hearing examiner was entitled to credit some evidence and to decline

to credit other evidence. His conclusion that McMilian did not establish that an

auto wrecking yard use existed on the subject parcel prior to the enactment of

the 1958 zoning ordinance was supported by substantial evidence in the record.

                                        IV

       McMilian next contends that, pursuant to RCW 36.70C.130(1)(d), the

hearing examiner's decision constituted a clearly erroneous application of the law

to the facts.

       One who asserts a prior legal nonconforming use bears the burden of

proving, inter alia, that the use existed before the county enacted the zoning

ordinance. First Pioneer Trading Co. v. Pierce Countv. 146 Wn. App. 606, 614,

191 P.3d 928 (2008). The use must have been more than intermittent or

occasional prior to the change in the zoning legislation. McMilian I. 161 Wn. App.

at 591. The hearing examiner found as a fact that the wrecking yard use was not
No. 70515-6-1/10



established on the subject parcel in 1958, when the zoning ordinance was

enacted. Therefore, it necessarily follows that McMilian did not carry his burden

of proving a nonconforming use. The hearing examiner's conclusion was

proper.6

                                                 V


        McMiiian's next set of challenges is directed at the scope of the hearing

examiner's decision. McMilian contends that the hearing examiner "engaged in

unlawful procedure" by (1) addressing the credibility of the evidence and (2)

violating the scope of our directive on remand by, for example, making a finding

that was not required.7 We disagree.

        McMilian identifies two sources of prescribed process in this case: the

KCC and this court's mandate on remand. KCC 20.24.080 provides:

        The examiner shall receive and examine available information,
        conduct open record public hearings and prepare records and

       6 McMilian next contends that, pursuant to RCW 36.70C.130(1)(b), the hearing
examiner's decision was an erroneous interpretation of the law, because the hearing examiner
concluded that no legal nonconforming use could be found absent evidence that it had been
consistently used to a "sufficient degree." This is a mischaracterization of the hearing examiner's
analysis. In the facts section of his report and decision, the hearing examiner identified the issue
presented on remand as: "whether the intrusion of an auto wrecking yard use onto [the subject
parcel] occurred prior to 1958 in sufficient degree to support a determination that it too is entitled
to recognition as the location of a legal non-conforming auto wrecking yard use." However, in the
conclusions section of his report and decision, the hearing examiner clarified the law that he
applied to the case. He stated: "[T]he [McMilian II opinion requires that to establish a valid
nonconforming [use] it must be demonstrated to have been 'more than intermittent or occasional
prior to the change in the zoning legislation."' This subsequent explication clarifies that what the
hearing examiner meant by "sufficient degree" was "more than intermittent or occasional." This is
a correct statement of the law.
         7 McMilian frames the hearing examiner's actions as violations of subsections (a) and (e)
of RCW 36.70C.130(1). However, McMiiian's argument that the hearing examiner's decision was
outside his authority or jurisdiction under subsection (e) must be based on an implied argument
that the hearing examiner violated the prescribed process under subsection (a). Otherwise, there
is no possible argument that a hearing examiner does not have the authority or jurisdiction to
examine the evidence and make factual findings. Therefore, we address only the argument as to
subsection (a).

                                               -10-
No. 70515-6-1/11



       reports thereof, and issue final decisions, including findings and
      conclusions, based on the issues and evidence in the record.

This process was restricted by our decision in McMilian I. which provided: "We

remand to the hearing examiner for a decision, based on the existing record, as

to whether McMilian established that the wrecking yard use was extant on the

southern parcel prior to 1958." 161 Wn. App. at 605 (emphasis added). Thus,

the modified process prescribed for this case eliminated any requirement (or

allowance) that additional hearings be held.

       McMilian first contends that the hearing examiner perpetrated a statutory

violation by addressing the credibility of the evidence. Despite McMiiian's

assertion, making credibility determinations does not run afoul of any

requirement of the prescribed process. In fact, it falls squarely within the

mandate that the hearing examiner "examine available information" and "issue [a]

final decision[]." Therefore, the hearing examiner did not violate RCW

36.70C.130(1)(a) by evaluating the credibility of the evidence in the record.8

       McMiiian's second contention is that the hearing examiner acted outside

the scope of our mandate by entering a conclusion as to whether the

presumption of permissive use applied in this case. Even the hearing examiner

acknowledged that this conclusion was not strictly within this court's directive.

Indeed, he began the challenged conclusion by noting, "Although not strictly

required by this decision on remand . . . ." However, the hearing examiner also

made a factual finding that the wrecking yard use was not established on the


       8Any potential due process violations are examined in section VI, B.

                                            -11 -
No. 70515-6-1/12



subject parcel in 1958, when the zoning ordinance was enacted. From that it

necessarily followed that McMilian had not carried his burden of proving a

nonconforming use on the subject parcel. Therefore, any error arising from the

hearing examiner's alleged failure to follow the process prescribed by this court

on remand was harmless as a matter of law.9 The challenged conclusion is

merely surplusage.

                                               VI


       McMiiian's third set of complaints relates to the process used by the

Hearing Examiner's Office in assigning McMiiian's case to Smith for decision.

McMilian contends that (1) it was a statutory violation for a pro tern hearing

examiner to decide his case on remand and (2) the delay after this court's

remand, which resulted in Smith deciding the case instead of Donahue, violated

McMiiian's constitutional due process rights. We disagree. The process utilized

by the Hearing Examiner's Office on remand did not violate any statutory or

constitutional directives.

                                                A


        McMilian asserts that it was a violation of RCW 36.70C.130(1)(a)10 for a

pro tern hearing examiner to decide his case. This is so, he contends, because
"The [KCC] does not permit... a pro tern hearing examiner to issue decisions

        9McMilian further challenges other actions taken by the hearing examiner on remand^
including that the hearing examiner "opined on who should have testified at the hearing," App.'s
Amended Br. at 35, and "took a much more aggressive role in formulating his own independent
opinion on the evidence and case." App.'s Amended Br. at 37. We disagree that any of the other
actions ofwhich McMilian complains were outside the scope ofactivities thatwere appropriate for
the hearing examiner to undertake on remand.
        10 Again, McMilian frames the hearing examiner's actions as violations ofsubsections (a)
and (e) of RCW 36.700.130(1). See, infra, n. 7.

                                              -12-
No. 70515-6-1/13



after the conclusion of an administrative hearing; the Code only permits a pro

tern hearing examiner to hear pending applications and appeals." App.'s

Amended Br. at 34 (bold face and italicization omitted). His assertion is

unavailing.

        King County permits the use of pro tern hearing examiners pursuant to

KCC 20.24.065, which provides: "The chief examiner may hire qualified persons

to serve as examiner pro tempore, as needed, to expeditiously hear pending

applications and appeals."

        In asserting that the foregoing provision is inapposite, McMilian

mischaracterizes the record. Contrary to McMiiian's assertion, the hearing

examiner on remand did not simply "issue [a] decision[] after the conclusion of an

administrative hearing." Rather, he resolved McMiiian's case according to the

case-specific prescribed process. As mandated by this court, the hearing

examiner did not conduct any additional hearings but, rather, completed the

remaining requirements for resolving the case, including examining the evidence
and issuing a final decision on the question presented.11'12


        11 McMilian also contends that the County violated prescribed process because
McMiiian's case was assigned to Smith by someone other than Donahue. McMiiian's contention
is contrary to the record, which includes an e-mail from Donahue to Smith, on which counsel for
McMilian and the County were both copied, assigning McMiiian's case to Smith. The e-mail reads
as follows:
        Stafford [Smith]- as we just discussed, I am assigning to you the above case to
        respond to the COA remand of the trespass issue. As noted, the remand calls
        for the issue to be addressed on the existing evidentiary record. Post-remand
        briefing ofthe issue has been submitted by the parties, represented by Jean
        Jorgensen for Appellant McMilian and Cristy Craig for Respondent DDES.
                 Pete [Donahue]
         12 McMilian also alleges that itwas a due process violation for Smith to decide his case.
However, any constitutional argument challenging the process ofappointing Smith isforeclosed
by the undisputed fact that McMilian never objected to Smith deciding his case until after the

                                               -13-
No. 70515-6-1/14



                                                   B


        McMilian also contends that the delay in deciding the case after remand

by this court violated his due process rights.1314 The focus of McMiiian's due

process claim is that it was a violation to substitute Smith for Donahue as

decision-maker.15 We conclude that no due process violation is established.



decision was rendered. See State v. Holmes. 12 Wash. 169, 174, 179, 40 P. 735 (1895) ("It will
be presumed ... that a man acting in a public office has been rightly appointed.") (holding that
the acts of a de facto judge were conclusive against a defendant who was tried before the judge
and who did not timely raise any objection to the judge presiding over the matter, notwithstanding
that the commission of the judge was later alleged to be invalid).
        13 McMilian also makes arguments based on alleged delays occurring prior to our initial
review of this matter. These claims are barred. See RCW 36.70C.040(3)-(4) (setting forth
timeliness requirements for the commencement of review of a land use decision).
        14 McMilian also contends that the delay between this court's remand and the hearing
examiner's decision violated RCW 36.70C. 130(1), because the delay violated the prescribed
process. However, McMilian does not direct us to any KCC provision, mandate of this court, or
other authority that sets forth a time frame within which decisions must be made in cases on
remand from this court. In fact, at oral argument, counsel for McMilian acknowledged that no
such authority exists. The claim, therefore, merits no further discussion.
        15 In his merits briefing, McMilian attempts to make a separate argument that the time
delay in itself violated due process. However, in making that argument, McMilian consistently
relates the delay to the substitution of decision makers, such that the arguments collapse. See,
e.g., App.'s Amended Br. at 31-33. Moreover, at oral argument, McMiiian's counsel conceded
that his due process claim rests on the substitution of Smith for Donahue.
         In any event, McMiiian's claim that the time delay alone violated his due process rights
rests on two distinguishable cases—Barry v. Barchi. 443 U.S. 55, 99 S. Ct. 2642, 61 L. Ed. 2d
365 (1979), and State v. Smith, 68 Wn. App. 201, 842 P.2d 494 (1992).
         First, any comparison to Smith is inapt, given that it involved a claimed violation of article
I, section 10 of the Washington Constitution, prohibiting "unnecessary delay" in criminal appeals.
The decision did not analyze a claimed due process violation. See Smith, 68 Wn. App. at 209.
         Second, the administrative process that was found to violate due process in Barchi is
unlike the process McMilian received. See 443 U.S. 55. Barchi involved a New York regulation
specifying the standards of conduct that horse trainers must satisfy to keep their licenses. 443
U.S. at 57-59. Under the regulation, if a postrace test revealed the presence of drugs in a horse's
system, the trainer's license could be subject to an interim suspension prior to a hearing, with the
opportunity for a hearing to be scheduled later. Barchi, 443 U.S. at 59-61.
       The Supreme Court held that the prehearing suspension process did not violate due
process, but concluded that itwas unconstitutionally applied to Barchi, the horse trainer, because
his postsuspension hearing was not timely held. Barchi, 443 U.S. at 63-64. The Court noted that
"'[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful
time and in a meaningful manner.'" Barchi, 443 U.S. at 72 (internal quotation marks omitted)
(quoting Mathews v. Eldridqe, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2 18 (1976)). Because
"the consequences to a trainer of even a temporary suspension can be severe," nothing in the
regulation "assured a prompt proceeding and prompt disposition of the outstanding issues
between Barchi and the State," and because the Court could "discern little or no state interest" in

                                                -14-
No. 70515-6-1/15



         Procedural due process constrains governmental decision making that

deprives individuals of property interests within the meaning of the due process

clause. Mathews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 47 L. Ed. 2d 18

(1976). It is a flexible concept, and the exact contours are determined by the

particular situation. Mathews. 424 U.S. at 334. The essential elements are notice

and an opportunity to be heard. Cleveland Bd. of Educ. v. Loudermill, 470 U.S.

532, 542, 105 S .Ct. 1487, 84 L. Ed. 2d 494 (1985) (quoting Mullane v. Cent-

Hanover Bank & Trust Co.. 339 U.S. 306, 313, 70 S. Ct. 652, 94 L. Ed. 865

(1950)).

         In order to succeed on a due process claim, McMilian must prove that he

was actually prejudiced by the lack of process afforded to him. See Wilburn v.

Astrue. 626 F.3d 999, 1003 (8th Cir. 2010) (quoting Briones-Sanchez v.

Heinauer. 319 F.3d 324, 327 (8th Cir.2003)).

         It is well established that an agency may substitute its judgment for that of

an examiner on factual questions, including the credibility of witnesses observed

by the examiner and not by the agency. Fed. Commc'ns Comm'n v. Allentown

Broad. Corp., 349 U.S. 358, 364, 75 S. Ct. 855, 99 L Ed. 1147 (1955). Due

process in administrative proceedings does not require that the testimony be

appreciable delay, the Courtconcluded that there was a constitutional violation. Barchi, 443 U.S.
at 66.
       Unlike Barchi, McMilian has had many opportunities to be heard. In 2008, Donahue
conducted a full evidentiary hearing over multiple days. McMilian presented evidence,
questioned the evidence against him, and appealed two adverse decisions to this court. See
Svs. Amusement. Inc. v. State. 7 Wn. App. 516, 518, 500 P.2d 1253 (1972) ("The [due process]
clause is a protection against arbitrary action by the state; but if a person has his day in court, he
has not been deprived of due process."). Moreover, in clear contrast to Barchi, whose license
was suspended without a hearing, McMilian has continued to use the subject parcel as a
wrecking yard throughout the long, protracted life of this dispute.

                                                -15-
No. 70515-6-1/16



evaluated by an officer who heard and observed the witnesses. Nat'l Labor

Relations Bd. v. Stocker Mfg. Co., 185 F.2d 451, 453 (3rd Cir. 1950);16 see also

Wilburn, 626 F.3d at 1003 ("We long ago stated, 'A change in personnel

occurring during the course of or at the close of an administrative hearing does

not as such give rise to constitutional repugnance in a decision or order made by

the administrative tribunal on the basis of the previous hearing.'" (quoting

Gamble-Skogmo. Inc. v. Fed. Trade Comm'n. 211 F.2d 106, 112 (8th Cir.

1954))); Twin City Milk Producers Ass'n v. McNutt. 122 F.2d 564, 569 (8th Cir.

1941) ("It is well settled that a change of personnel in an administrative agency or

tribunal during the course of a hearing, or at any time before the issuance of a

final order on the hearing, does not invalidate the order."). Where the original

hearing officer is no longer available, it does not violate due process to reassign

an administrative matter to a new officer for additional findings, especially if

credibility is not a central concern. Fife v. Dir.. Office of Workers' Comp.

Programs. U.S. Dep't of Labor. 888 F.2d 365, 370 (6th Cir. 1989); see also

Wilburn, 626 F.3d at 1003 ("[The second ALJ's] conclusion . . . relied

predominately upon inconsistencies in the medical record as opposed to

credibility determinations based upon the demeanor of the witnesses, thus

diminishing the need to observe the testimony personally.").

         16 McMilian quoted Stocker in his merits briefing. App.'s Reply Br. at 1-2. In doing so, he
materially omitted the context for the quotation. The two sentences following the partial sentence
he quoted provide: "The Morgan KMoraan v. United States, 298 U.S. 468, 56 S. Ct. 906, 80 L.
Ed. 1288 (1936))] opinion says that the officer who actually decides the controversy may do so on
the basis of evidence taken by an examiner and thereafter sifted and analyzed by some other
subordinate. Due process in administrative proceedings of the type now under consideration
does not require that the testimony be evaluated by an officer who heard and observed the
witnesses." Stocker, 185 F.2d at 453.


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          Credibility was not a central concern in this case. Smith made one explicit

credibility determination—pertaining to McMilian—and this determination was

based on McMiiian's possible motivations given his status as a party and his

stake in the outcome. This is a perfectly logical inference for the fact finder to

draw and one that was not based on McMiiian's presentation while testifying.

Smith's decision relied largely on documentary evidence—including the aerial

photograph, the tax record, and the affidavits—not on testimony. Moreover, the

lack of prejudice to McMilian from the substitution of Smith for Donahue is

demonstrated by the consistency of Smith's and Donahue's findings regarding

the use of the subject parcel. Both examiners found that over the course of

several different ownerships, some of the wrecking yard activities extended onto

the subject property. Both examiners found that the use expanded somewhat

during Horan's ownership and substantially under McMiiian's ownership. These

findings were entirely consistent with the evidence. The critical difference is that

Donahue made no specific finding relative to 1958, whereas, pursuant to our

remand order, that time frame was the focus of Smith's findings. McMilian

suffered no due process violation by virtue of Smith—rather than Donahue—

resolving the case on remand.1718


          17 McMiiian's reliance on Hearne v. Chicago School Reform Board of Trustees, 322 III.
App. 3d 467, 749 N.E.2d 411 (2001), is misplaced. In that case, the credibility of witnesses was a
determining factor. However, the final decision-maker (the board) overturned the hearing officer's
factual findings without either conferring with the hearing officer or independently reviewing and
analyzing the evidence. Indeed, the board's unsigned, substitute findings lacked any substantive
discussion of the evidence or controlling legal principles. Such is obviously not the circumstance
herein.
          18 McMilian also challenged the land use decision as "an unconstitutional taking and a
violation of substantive due process." App.'s Reply Br. at 18.

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No. 70515-6-1/18



                                                 VII


        King County requests an award of reasonable attorney fees pursuant to

RCW 4.84.370(2). A party is entitled to an award of attorney fees pursuant to

this statute only where a land use decision of a county, city, or town is rendered

in the party's favor and at least two courts affirm that decision. RCW

4.84.370(2); see also Habitat Watch v. Skagit Countv. 155 Wn.2d 397, 413, 120

P.3d 56 (2005) ("The possibility of attorney fees does not arise until a land use

decision has been appealed at least twice: before the superior court and before

the Court of Appeals and/or the Supreme Court."). King County prevailed in front

of the pro tern hearing examiner and the superior court. It also prevails here.

Therefore, the County is entitled to an award of reasonable attorney fees

pursuant to RCW 4.84.370(2).19

                                                 VIII


        McMilian requests an award of attorney fees pursuant to Superior Court

Civil Rule (CR) 11 "for having to respond" to the County's Motion to Strike, which

he contends "was not well grounded in fact, but was imposed [sic] for an

improper purpose."


        Parties raising constitutional issues must present considered arguments to this court.
See, e.g., Pub. Hosp. Dist. No. 1 of King Countv v. Univ. of Wash.,       Wn. App.     , 327 P.3d
1281, 1289 (2014) ("'[N]aked castings into the constitutional seas are not sufficient to command
judicial consideration and discussion.'" (alteration in original) (internal quotation marks omitted)
(quoting State v. Johnson, 179 Wn.2d 534, 558, 315 P.3d 1090 (2014), cert, denied. 2014 WL
2763761 (U.S. Wash. Oct. 6, 2014))).
        In his briefing, McMilian makes no taking argument. His substantive due process
argument relies entirely on an application ofa balancing test thatapplies to land use regulations,
not to land use decisions. See Peste v. Mason Countv. 133 Wn. App. 456, 136 P.3d 140 (2006).
McMilian has not carried his burden of establishing that the hearing examiner's decision violated
his constitutional rights. See RCW 36.70C.130(1)(f).
        19 Upon proper application, a commissioner of this courtwill enter an appropriate order.

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        CR 11 is a superior court rule and does not apply to filings in this court.20

The appellate equivalent of CR 11 is RAP 18.9. Right-Price Recreation. LLC v.

Connells Prairie Cmtv. Council. 146 Wn.2d 370, 384, 46 P.3d 789 (2002). We

find no violation of RAP 18.9 by King County and, therefore, deny the request.

        Affirmed.


                                                       •~^J/" (
We concur

    \

                                               yrjL^wUSk




        20 3 Karl B. Tegland, Washington Practice: Rules Practice, at 495 (7th ed. 2011)
(quoting the drafters' comment to the 1994 amendment of RAP 18.7, which provides, "If sanctions
are to be imposed at the appellate level, this should be done pursuantto an appellate rule, not a
superior court rule. . . . The amendment to rule 18.7 strikes the reference to CR 11, so that only
sanctions under the RAP's will apply."); see also 3 Tegland, supra, author's cmts. at 507-08
(explaining the purpose of the removal ofall references to CR 11 in the RAP's).

                                              -19-
