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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II

ROBERT KANANY,                                                                    No. 46340 -7 -II


                                      Appellant,


           V.



CITY       OF      BONNEY        LAKE,       a   municipal

corporation; STEPHEN, K. CAUSSEAUX, JR.,
as Bonney Lake Hearing Examiner; and JOHN
P. VODOPICH, as City of Bonney Lake
Community Development Director/Building
 Official,
                                                                             UNPUBLISHED OPINION




          LEE, J. -    Robert Kanany appeals the superior court' s denial of his appeal under the Land

Use Petition Act ( LUPA),           chapter      36. 70C RCW.          The superior court affirmed the hearing

examiner' s determination that the Bonney Lake Municipal Code ( BLMC) does not permit an

accessory       dwelling   unit ( ADU) on    the   same   lot   as a   duplex. Because the plain language of the


BLMC clearly prohibits ADUs in conjunction with any duplex, we affirm and grant the City' s .

request   for   appellate   attorney fees   and costs.
No. 46340 -7 -II




                                                             FACTS


          Kanany        owns   two    duplex   properties   in the city   of   Bonney Lake ( City).   Both properties are


in the    City' s   medium -    density     residential district, the R-2        zone.    In addition to a duplex, each


property has        a   two- story,   detached   garage.    A construction permit for one of the duplexes stated


that per code, the detached garage could not be converted to living space.

          In 2009, the City received a complaint about Kanany allowing tenants to live in the space

above one of his garages. The City investigated and determined that he was maintaining an illegal

ADU on the same property as his duplex. The City issued a notice of violation and imposed daily

fines,    and    eventually filed      a   lawsuit for   monies owed.          The trial court entered judgment in the


City' s   favor,    and    Kanany     appealed   that judgment to this court.            City of Bonney Lake v. Kanany,

185 Wn. App. 309, 340 P. 3d 965 ( 2014) ( published in part). In apart -published opinion, we upheld


the judgment in the face of Kanany' s due process challenge. Id. at 319- 20.

           While that appeal was pending, Kanany sought an interpretation of BLMC 18. 22. 090( C)( 1)

from the        City Community        Development Director ( Director). That code provision states:


           C. Requirements.    The creation of an accessory dwelling unit shall be subject to
           the following requirements, which shall not be subject to waiver or variance:

           1.    Number.        One accessory unit shall be allowed per legal building lot as a
           subordinate use in conjunction with any single- family residence; no ADU will be
           permitted in conjunction with any duplex or multiple -family dwelling units.

BLMC 18. 22. 090( C)( 1).             The Director interpreted that provision to mean that ."no ADU will be


permitted anywhere on the same legal lot with any duplex or multiple -family dwelling units."

Clerk' s Papers ( CP) at 20. The Director concluded that the BLMC unambiguously prohibits ADUs

and duplexes on the same lot.




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No. 46340 -7 -II




          On October 4, 2013, Kanany appealed the Director' s decision to the city hearing examiner.

CP 35. He       asked   the   hearing examiner to " narrowly              construe ...      BLMC 18. 22. 090( C)( 1) to apply

only to   an   ADU that is      conjoined or     physically        attached   to   a   duplex   unit   in the R-2     zone."   CP at


33.   The City responded with a report that outlined the history of its ADU dispute with Kanany

and the parties' conflicting interpretations of the code.

          Kanany also asked for the rules relevant to the pending hearing and for access " to the tools

and procedural mechanisms I may require in order to develop a full and adequate record for review,

including      any   appropriate   discovery from City             officials and staff."        CP     at   34.   Kanany noted his

intent to represent himself during the hearing with the assistance of Fred Brown, a building

designer and land use consultant. When Brown inquired about the appeal procedures, the Director


cited BLMC 14. 120. 020.


          On November 5,           2013,    Kanany sought a continuance of the hearing scheduled for

November -15.          He   requested at    least   a " couple weeks"             so that he could better prepare for the


hearing   and contact possible witnesses.              CP     at   126.    One of those witnesses was a neighbor who


also owned a duplex. The City opposed the continuance and the hearing examiner denied it after

reviewing      Kanany' s request for the        code   interpretation       and    the   other appeal materials. "      The appeal


concerns    the interpretation      of   1- 2   sections of        the [ BLMC].          Both the appellant' s and the City' s

positions on these interpretations are well set forth in the code interpretation and in the appeal.


The Examiner         sees no reason   to   continue     the   hearing."       CP at 128.


          At the November 15 hearing, 'Kanany represented himself and presented two witnesses:

Fred Brown and Connie Brown, director of the Tacoma/Pierce County Affordable Housing

Consortium.          After the hearing examiner explained the hearing' s procedure, the City' s attorney



                                                                    3
No. 46340 -7 -II



presented argument and Kanany read a lengthy statement that outlined the history of his ADU

dispute with the City.

          Kanany then complained that he had not received a copy of the rules for the hearing and

that the denial        of a continuance        had   prevented      him from obtaining             additional witnesses..         The


hearing examiner replied that the City did not have any hearing examiner rules, explained that " we

are   handling       this    hearing   the same way as we do every                   hearing,"       and added that the code


interpretation at issue was a legal rather than factual question. CP at 200- 01.


          Fred Brown then presented his interpretation of BLMC 18. 22.090 and accused the City of

unfair    tactics.    When the hearing examiner asked him to focus on the appeal, Brown presented

further   argument and complained of             the   City' s "   constant      deception." CP at 206. Both Brown and


Kanany submitted written statements to the hearing examiner.

          Connie Brown asked to speak about affordable housing and how it relates to density. The

hearing examiner explained that such testimony was irrelevant to the question presented and asked

whether she had any information to present about the code section at issue. When she did not, the

hearing examiner did not allow her to testify but did allow her to put written material into the

record.




          The hearing examiner denied Kanany' s appeal and upheld the Director' s code

interpretation.        The     hearing   examiner      concluded       that "[   s] ection   18. 22. 090( C)( 1) BLMC is not


ambiguous and          is    clear   from the ordinary meaning          of   its language         and   its   context,"   and that the


code "    clearly    prohibits       ADUs in   conjunction with         any duplex."          CP    at   241.     After the hearing

examiner      denied        reconsideration,   Kanany     filed    a   LUPA      petition    in   superior court.         The superior


court affirmed the hearing examiner' s decision, and Kanany appealed to this court.



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No. 46340 -7 -II



                                                            ANALYSIS


A.         STANDARD OF REVIEW


           LUPA is the exclusive means for judicial review of land use decisions with a few

exceptions.           RCW 36. 70C. 030( 1);        Twin Bridge Marine Park, LLC v. Dep' t ofEcology, 162 Wn.2d

825, 854, 175 P. 3d 1050 ( 2008).                 Under LUPA, this court reviews the hearing examiner' s decision

on the basis of the administrative record rather than the superior court' s decision and record.

Milestone Homes, Inc.               v.   City   ofBonney Lake, 145 Wn.      App.   118, 125, 186 P. 3d 357 ( 2008). The


party seeking relief from a land use decisionmust establish one of the errors set forth in RCW

36. 70C. 130( 1):


                         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;
                          The land use decision is outside the authority or jurisdiction of the
                         e)

           body or officer making the decision; or
                   f)     The land use decision violates the constitutional rights of the party
           seeking relief.


           This burden. to          prove error rests with      the petitioning party       on appeal.      Tahoma Audubon


Soc' y    v.    Park Junction Partners, 128 Wn.                App.    671, 681, 116 P. 3d 1046 ( 2005).                Kanany' s

arguments            focus   on claims of error     that implicate    subsections ( a), (   b), and ( f).1 These subsections




  Kanany cites the other subsections in RCW 36.70C. 130 without providing any supporting
argument, so we               do   not consider     the   standards   in RCW 36. 70C. 130( 1)(      c), (   d),   and ( e).   RAP
10. 3(   a)(   6);   Bale v. Allison, 173 Wn. App. 435, 451, 294 P. 3d 789 ( 2013).


                                                                  5
No. 46340 -7 -II



present questions of law that we review de novo. Cingular Wireless, LLC v. Thurston County, 131

Wn. App. 756, 768, 129 P. 3d 300 ( 2006).

B.          RCW 36. 70C. 130( 1)( b):      Interpretation of BLMC 18. 22. 090( C)( 1)


            At issue is the      hearing   examiner' s     interpretation     of   BLMC 18. 22. 090( C)( 1).             Courts


interpret local     ordinances        the same   as   statutes.       Milestone Homes, 145 Wn.         App.      at   126.   An


unambiguous statute will be applied according to its plain meaning, while only ambiguous statutes

will   be   construed.   State   v.   J.P., 149 Wn.2d 444, 450, 69 P. 3d 318 ( 2003); Milestone Homes, 145


Wn. App. at 126. In addition to considering the ordinary meaning of the language used, the plain

meaning of a statute may be discerned from all that the legislature body has said in it and from

related statutes that disclose legislative intent about the provision in question. Dep' t ofEcology v.

Campbell &         Gwinn, LLC, 146 Wn.2d 1,              11, 43 P. 3d 4 ( 2002).        Individual subsections are not


addressed in isolation from the other sections of the statute, especially where to do so undermines

the overall statutory purpose. In re the Matter of the Pers. Restraint ofAdams, 178 Wn.2d 417,

424, 309 P. 3d 451 ( 2013).


            BLMC 18. 22. 090          governs   ADU    regulations       and consists   of   three   sections.        Section A


explains the intent behind .ADUs, which includes adding affordable housing and increasing

housing density.       BLMC 18. 22. 090( A)(2), ( 6). This section also explains that ADUs are intended


to   protect   the " single- family    residential appearance."         BLMC 18. 22. 090( A)( 5).      Section B explains


the procedures by which a property owner may obtain an ADU permit. Section C sets forth eight

separate requirements for creating ADUs and adds that they " shall not be subject to waiver or

variance."      BLMC 18. 22. 090( C).




                                                                  C
No. 46340 -7 -II



            At issue here is the first requirement in Section C. That requirement sets forth the number

of   ADUs     permitted with           single-   family    residences and         duplexes: "        One accessory unit, shall be

allowed per legal building lot as a subordinate use in conjunction with any single- family residence;

no ADU will be permitted in conjunction with any duplex or multiple -family dwelling units."

BLMC 18. 22. 090( 0)( 1).               An additional requirement provides that ADUs must be designed to


maintain     the   appearance " of          the existing single- family          residence."       RCW 18. 22. 090( C)( 5).


            Both the Director and the hearing examiner found that the language in BLMC

18. 22. 090( C)( 1) plainly prohibits the construction of an ADU on property containing a duplex.

The Director reasoned as follows:

            The phrase     "   in   conjunction,"    as applied in the context of BLMC 18. 22. 090, conveys
            the   notion    of a      primary    use     and. a    subordinate   A property
                                                                                    use     of a   property.
            developed with a duplex or multi -family dwelling units cannot have an ADU as a
            subordinate        use.    The BLMC is unambiguous in its prohibition of ADUs and
            duplexes      on   the    same   legal lot. The stated intent of this section of the BLMC to
            increase      density      in   order   to    better    utilize     existing infrastructure, community
            resources, and support public transit, and neighborhood retail and commercial

            services is met by allowing one ADU per legal building lot as a subordinate use .in
            conjunction with any single- family residence.

CP at 20.


            The    hearing      examiner       agreed with         this interpretation.        The hearing examiner, cited to

BLMC 18. 04. 010,              which    defines     an   ADU      as "   a second dwelling unit either in or added to an

existing single- family detached dwelling, or in a separate structure on the same lot as the primary

dwelling." CP        at   241. When this definition is              read with      BLMC 18. 22. 090( C)( 1), the two sections


 clearly     allow either an attached or            detached ADU             on a single-   family   residential   building   lot." CP


at   241.    This conclusion finds support in the other provisions of BLMC 18. 22. 090 that refer to


ADUs solely in the             context of single-        family   dwellings. BLMC 18. 22. 090( A)(5), ( C)( 5).




                                                                         h
No. 46340 -7 -II



             But Kanany maintains that the hearing examiner' s interpretation is inconsistent with the

City' s land use matrix and other provisions of the BLMC that permit ADUs in the R-2 zones in

which        his duplexes     are   located.   While it is true that the City' s land use matrix covering all land

uses in all zones within the City provides that ADUs and duplexes are permitted in the R-2 zone,

the       matrix   contains    a    footnote explaining that "[      n] o accessory dwelling units are allowed in

conjunction with a          duplex." BLMC 18. 08. 020.


             Kanany argues that the hearing examiner' s interpretation is inconsistent with former

BLMC 18. 16. 020 ( 1997), which was entitled " Uses permitted outright" and allowed ADUs in the


R-2 zone. CP at 94. This ordinance was in effect when he built his duplexes. CP 12. We rejected


this argument.in his previous appeal:


                       Contrary to Kanany' s argument, these two subsections are not in conflict.
              Rather, former BLMC 18. 16. 020 allows ADUs in medium density residential
              districts, subject to other provisions and exceptions set forth in the City' s
              development       code.      BLMC       18. 22. 090( C)( 1)   is   one such provision in the
              development code that limits ADUs. Thus, these provisions are wholly consistent.

Kanany, No. 42988 -8 -II, slip op. (unpublished portion) at 15. 2

              Kanany   also    argues     that any reading      of   BLMC 18. 22. 090( C)( 1)   that would prohibit



duplexes and ADUs on the same property is inconsistent with the City' s comprehensive plana and

its      stated goal of   increasing     affordable   housing by     allowing ADUs in     all residential zones.   We


also rejected this argument in Kanany' s earlier appeal:




2
    1
        The decision on Kanany' s earlier appeal concerned only the monetary judgment, but we
addressed Kanany' s additional arguments in the unpublished part of our opinion.
3
        Kanany cites a former plan, but the policy of allowing ADUs in all residential zones has remained
unchanged.




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No. 46340 -7 -II



         Although comprehensive plan policy 3- 7a states the policy of allowing ADUs in all
         residential zones, the plan does not suggest that ADUs must be allowed in every
         location and every situation in those zones. Nor does the reasonable regulation of
         ADUs, including their prohibition in conjunction with duplexes, jeopardize the
         policy of allowing them in all residential zones. That prohibition is not inconsistent
         with the Bonney Lake Comprehensive Plan.

Kanany,      No. 42988 -8 -II, slip op. (        unpublished          portion)         at   15.   Moreover, even if there are


inconsistencies,       a specific      zoning   ordinance prevails over a comprehensive plan.                           Citizens for


Mount Vernon v. City ofMount Vernon, 133 Wn.2d 861, 873, 947 P. 2d 1208 ( 1997).

         Kanany argues further that his interpretation of "in conjunction with" as prohibiting only

ADUs that         are attached    to   duplexes is    consistent with            the   common      meaning   of   the   phrase.   As


support,     he   cites a case   stating that the    phrase "   in   conjunction with" means "            conjointly."      Orange


Unified Sch. Dist. v. Rancho Santiago Cmty. Coll. Dist., 54 Cal. App. 4th 750, 763, 62 Cal. Rptr.

2d 778 ( 1997).       The California court also interpreted the phrase as meaning " in association, or in

unison."      Orange Unified Sch., 54 Cal.           App.   4th      at   763.    The City responds that the definition of

 in   conjunction with"
                                 refers to the co -existence of objects and supports the hearing officer' s

interpretation prohibiting ADUs and duplexes on the same lot. Br. of Resp' ts at 24.

         Other Bonney Lake ordinances addressing ADUs reinforce the City' s reading of " in

conjunction with."        BLMC 18. 22. 090 does not distinguish between attached and unattached ADUs


in stating    where    they   are permissible and where              they    are not.         And there is no such distinction


elsewhere     in the   code, as    the definition     of   ADU       makes clear: "[          ADU] is a second dwelling unit

either in or added to an existing single- family detached dwelling, or in a separate structure on the

same   lot   as   the primary    dwelling."     BLMC 18. 04. 010. Because this definition allows ADUs to be




                                                                 9
No. 46340 -7 -II




separate or attached structures, it would be contrary to statutory construction to conclude that the

phrase " in conjunction with" in BLMC 18. 22. 090( C)( 1) refers only to physically attached ADUs.

        Kanany' s        interpretation       also would require         the   phrase "   in   conjunction with,"   used twice in


BLMC 18. 22. 090( C)( 1),         to have one meaning with regard to single- family residences and another

with regard to duplexes. As the hearing examiner observed,

        Accepting appellant' s interpretation would render different meanings to the term
          in     conjunction"      as used. within         the   same    ordinance        section.... [     A]ppellant' s
        definition of " in conjunction" would have one meaning for a single- family
        residential lot (allowing both an attached and detached ADU) and another meaning
        for      a    duplex lot ( only        a   detached ADU).               Such is a strained and illogical
        interpretation and " undermines the overall statutory purpose."

CP at 243.


        Kanany' s        reading   of   BLMC 18. 22. 090( C) ( 1) appears to thwart the overall intent of the


code   concerning ADUs,           which       is to   prohibit   their   presence    in lots containing duplexes. Whether


viewed in isolation or in relation to other ordinances addressing ADUs, both the language and

purpose     of   BLMC 18. 22. 090( C) ( 1)             seem clear.       BLMC 18. 22. 090( C)( 1)         plainly prohibits the

construction of an ADU on property containing a duplex.

C.      RCW 36. 70C. 130( 1)(           a):    CHALLENGE TO PROCEDURE


        Kanany argues that error under RCW 36.70C. 130( 1)( a) occurred when the hearing officer

failed to   provide       him    with rules        that   would    govern      the   hearing.      As support, he cites RCW


35A. 63. 170,        which authorizes    the adoption of the         hearing examiner system and provides that "[ t]he

legislative      body    shall   prescribe       procedures       to be followed           by . a hearing   examiner."      RCW


35A.63. 170( 1)( c).




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No. 46340 -7 -II




          During the hearing, the hearing examiner explained to Kanany that there were no specific

rules   for the   hearing   and   that   it   was   being   handled in the   usual manner.        Kanany asserts that the

absence of such rules allowed the hearing examiner to proceed in an ad hoc manner that resulted

in the examiner asking the City attorney leading questions and allowing that attorney to offer

materials that were prejudicial, irrelevant, and immaterial. Kanany also argues that the absence of

written rules meant       that his   objection      to the   denial   of a continuance "   fell   on   deaf ears"; that there


were no standards for conducting prehearing procedures, including discovery, the exchange of

witnesses and evidence, briefing schedules, and continuances; and that there were no standards for

implementing        posthearing    procedures such as a request            for   reconsideration or an appeal.        Br. of


Appellant at 13.


          When Brown, in assisting Kanany, inquired about the City' s appeal requirements and

procedures, the Director responded by citing BLMC 14. 120. 020 and set forth the ordinance in his

email.    This ordinance describes the decisions and determinations that may be appealed to the

hearing examiner, how to appeal, the required contents of an appeal, the time for filing an appeal,

the effect of an appeal on a City decision, the requirement that the appellant be sent notice of the

date, time, and place for the hearing ( including the deadline for submission of written comments),

the requirement that the hearing be under oath and recorded, and it provides notification that the

examiner' s       decision is final      unless appealed       to a court.    At the hearing' s outset, the examiner

described the order in which the parties would testify, the fact that their testimony would be

recorded, and the manner in which the final decision would be issued and distributed.


          RCW 35A.63. 170 does not require legislative bodies to prescribe procedures to be


followed during the hearings themselves. It does require, however, that



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No. 46340 -7 -II



         e] ach final decision of a hearing examiner shall be in writing and shall include
         findings and        conclusions,   based   on   the   record,   to   support   the decision.   Such
         findings and conclusions shall also set forth the manner in which the decision would
         carry out and conform to the city' s comprehensive plan and the city' s development
         regulations.




         RCW 35A. 63. 170( 3).       The hearing examiner fully complied with these requirements. His

decision was in writing, included findings and conclusions based on the record, discussed the

relationship of the decision to the City' s comprehensive plan and development regulations, and

upheld   the Director'   s   interpretation.   In addition, the hearing' examiner informed Kanany of the

procedures to follow in seeking reconsideration or in appealing his decision.

         The hearing examiner responded to Kanany' s criticisms concerning the hearing' s

procedure in his decision denying reconsideration:

         Appellant asserts that the Examiner allowed the City to present testimony without
         interruption regarding his reasons for bringing the request for code interpretation,
         but would not allow he [ sic] and his witness, Mr. Fred Brown, to discuss the City' s
         motives for harassing him. The transcript of the proceedings speaks for itself. The
         Examiner did interrupt Mr. Kanany' s testimony because it strayed well beyond the
         appeal of a BLMC code section. Much of the appellant' s issues and presentation
         exceeded the Examiner' s authority and are within the jurisdiction of the legislative
         process and the City Council.     Even so, the Examiner allowed Mr. Kanany to
         provide irrelevant testimony before the interruption, and it also allowed the City the
         opportunity to make a short response. In addition, the Examiner admitted both Mr.
         Kanany' s and Mr. Brown' s full written statements into the record as Exhibits, and
         said documents are available for consideration by a reviewing court.

CP at 250. The examiner added that the City had adopted no rules of procedure for hearings before

a hearing examiner.4




4
 Bonney Lake has since adopted an ordinance outlining rules of procedure with which the
hearing examiner complied. BLMC 14. 60. 030 ( Ord. 1505 § 6 ( 2015)).


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No. 46340 -7 -II



           The fact that Kanany' s requests for a continuance and for reconsideration were denied on

the merits does not demonstrate that the City and the hearing examiner inadequately informed him

of   the   procedures   involved in making            those   requests.
                                                                          Nor does the handling of Kanany' s

witnesses, or his inability to obtain additional witnesses, establish improper procedure. The issue

before the hearing examiner was one of code interpretation, and the manner in which the examiner

conducted      the   hearing,     which followed BLMC              14. 120. 020, was appropriate to that issue.


Additional procedures were not required under RCW 35A.63. 170. Thus, the hearing examiner did

not engage in improper procedure during the hearing or in reaching his decision.

D.         RCW 36. 70C. 130( 1)( f): CONSTITUTIONAL RIGHTS


           Kanany makes the related argument that the hearing examiner violated his right to due

process before, during, and after the hearing. We disagree.

           Procedural due process refers to the procedures that the government must follow before it


deprives a person of life, liberty, or property. Dellen Wood Prods., Inc. v. Wash. State Dep' t of

Labor & Indus.,      179 Wn. App. 601, 626-27, 319 P. 3d 847, review denied, 180 Wn.2d 1023 ( 2014).

  When a state seeks to deprive a person of a protected interest, procedural due process requires


that an individual receive notice of the deprivation and an opportunity to be heard to guard against

erroneous     deprivation."'      Speelman     v.   Bellinghamlglhatcom    County    Hous. Auths.,   167 Wn. App.

624, 631, 273 P. 3d 1035 ( 2012) (         quoting Amunrud v. Bd. ofAppeals, 158 Wn.2d 208, 216, 143

P. 3d 571 ( 2006),    cert.    denied, 549 U. S. 1282 ( 2007)).      To determine whether existing procedures

are adequate    to   protect   the interest   at stake, courts consider   three   factors: the private interest that


will be affected by the action; the risk of an erroneous deprivation of that interest through the

procedures used, and the probable value, if any, of additional or substitute safeguards; and the



                                                              13
No. 46340 -7 -II




Government' s interest, including the function involved and the fiscal and administrative burdens

that additional or substitute procedural requirements would entail. Mathews v. Eldridge, 424 U. S.

319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 ( 1976);           Kanany, 185 Wn. App. at 315.

        Here, the private interest affected was Kanany' s ability to use his property as desired. The

City' s interest was to protect public safety and property values and to prevent declining

neighborhoods. Kanany, 185 Wn. App. at 318.

         Kanany sought to protect his interest by seeking a code interpretation that would support

the presence of an ADU on his property. This presented a legal issue, and the hearing procedures

employed did not risk an erroneous interpretation or an erroneous deprivation of Kanany' s interest.

Because hearing examiner hearings are administrative in nature, due process does not require all

the formal procedures or rules of evidence of a trial in court. 17 WILLIAM B. STOEBUCK AND JOHN


W. WEAVER, WASHINGTON PRACTICE: REAL ESTATE: PROPERTY LAW § 4. 7, at 185 ( 2d ed. 2004);


see   Shoemaker    v.   City ofBremerton,      109 Wn.2d 504, 511, 745 P. 2d 858 ( 1987) ( rules   of evidence




generally do   not      apply   during   administrative   hearings).   The procedures outlined in the existing

ordinances and statutes, with which the hearing examiner fully complied, provided Kanany with

notice of each opportunity for review and with the opportunity to be heard at each level of review.

Given that the only issue before the hearing examiner involved a purely legal one of code

interpretation, the hearing examiner did not violate Kanany' s due process rights.

         Kanany argues in passing that the hearing examiner' s decision resulted in an

unconstitutional taking of his property. This argument fails.




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No. 46340 -7 -II



          A   mere regulation on       the    use of   land does     not constitute a "   taking." Robinson v. City of

Seattle, 119 Wn.2d 34, 56, 830 P. 2d 318,               cert.   denied, 506 U. S. 1028 ( 1992). " In the exercise of


the police power regarding property use, such as in zoning and building permit requirements,

government may legitimately impose many types of restrictions or development conditions on a

landowner."       Robinson, 119 Wn.2d at 56. We reject Kanany' s claims of error based on unlawful

process or constitutional violations.



E.        APPELLATE ATTORNEY FEES AND COSTS


          The City seeks attorney fees and costs on appeal under RCW 4. 84. 370, which provides that

reasonable fees and costs shall be awarded to the prevailing party on appeal " of a decision by a

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

rezone,   zoning ...      or similar   land   use approval or        decision." RCW 4. 84.370( 1).


          The county, city, or town whose decision is on appeal is considered a prevailing party if its

decision is     upheld at superior court and on appeal.                RCW 4. 84. 370( 2); see also Durland v. San


Juan   County,    182 Wn.2d 55, 77, 340 P. 3d 191 ( 2014) ( under RCW 4. 84. 370( 2), public entity will


receive   attorney fees if its decision is         upheld       in two   courts). "[    P] arties challenging a land use

decision get one opportunity to do so free of the risk of having to pay other parties' attorney fees

and costs     if they   are unsuccessful      before the   superior court."
                                                                                Habitat Watch v. Skagit County, 155

Wn.2d 397, 413, 120 P. 3d 56 ( 2005).

          The   City    prevailed   in the   superior court and prevails        here.    Therefore, we grant the City' s

request for fees and costs on appeal subject to its compliance with RAP 18. 1.




                                                                15
No. 46340 -7 -II




        We affirm the hearing examiner and award the City appellate attorney fees and costs.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040,


it is so ordered.




                                                                        Lee, J.
 We concur:




                    r3; orgen, A.C. J.




                         utt n, J.




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