      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON




PUGET SOUND ENERGY, INC.,                             No. 74464-0-1
                                                      (consolidated with
                     Appellant/                       No. 74465-8-1)          CO
                                                                              O
                     Cross Respondent,
                                                      DIVISION ONE



EAST BELLEVUE COMMUNITY
COUNCIL, a community municipal
corporation,

                     Respondent/                      UNPUBLISHED
                     Cross Appellant,
                                                      FILED: January 30. 2017
CITY OF BELLEVUE, a first class city
organized pursuant to Washington law,

                     Respondent.




      Cox, J. — The primary issue in this Land Use Petition Act (LUPA) appeal

is whether Puget Sound Energy Inc. (PSE) meets its burden to show that the

EBCC's disapproval within its area of the city of Bellevue's approval of a

conditional use permit was improper. Another issue is whether the EBCC lacks

authority to review the shoreline conditional use permit approved by the city of

Bellevue.
No. 74464-0-1 (consolidated with No. 74465-8-l)/2


       We hold that RCW 35.14.040(3) does not give the EBCC authority to

review shoreline conditional use permits approved by Bellevue. We affirm the

trial court decision in this respect.

       We also hold that PSE meets its burden under RCW 36.70C.130 to show

that the EBCC's disapproval within its area of Bellevue's approval of PSE's

conditional use permit was improper. Accordingly, we reverse the trial court's

decision in this respect.

       PSE seeks to improve electrical service reliability in Bellevue by looping

an overhead transmission line in its Lake Hills substation with its Phantom Lake

substation. PSE applied to Bellevue for a conditional use permit and a shoreline

conditional use permit to construct a 2.89 mile, 115kV transmission line

connecting these two substations. The proposed line is to run along N.E. 8th

Street, 148th Avenue N.E. and S.E., S.E. 16th Street, and 156th Avenue S.E.

This is partially within the EBCC's area.

       The EBCC is a community council, established in 1969 when Bellevue

annexed the EBCC area. The northern boundary of this area is N.E. 8th Street.

This area also includes 148th Avenue S.E. The service areas for the two

respective substations to be linked by the project are only partially within the

EBCC's area.

       By virtue of Bellevue's annexation of the EBCC area, RCW 35.14.040

provides the EBCC authority to affect whether land use ordinances approved by

Bellevue become effective within the EBCC area. We discuss this statute and its

application more fully later in this opinion.
No. 74464-0-1 (consolidated with No. 74465-8-l)/3


       In October 2014, Bellevue's Development Services Department

recommended approval, subject to conditions, of PSE's application for a

conditional use permit and a shoreline conditional use permit. This followed

review of the applications under Washington's State Environmental Policy Act

(SEPA) and the issuance of a Mitigated Determination of Non-Significance

(MDNS). No appeal followed the MDNS, which stated that PSE's project "does

not have a probable significant adverse impact upon the environment."

       Thereafter, a hearing examiner conducted a public hearing and

recommended that the Bellevue City Council approve PSE's application for both

permits. The council approved both permits by its Ordinance No. 6226.

       In June 2015, the EBCC passed its Resolution No. 550. It did so after

conducting its own hearings. The resolution includes 16 numbered paragraphs

of "findings and conclusions" in support of the resolution. In its resolution, the

EBCC disapproved within its area Bellevue's Ordinance No. 6226.1

       In July 2015, PSE commenced this LUPA action to challenge the EBCC's

disapproval within its area of Bellevue's ordinance. The trial court concluded that

PSE failed to meet the standards set forth in RCW 36.70C.130 to overturn the

EBCC's resolution. The trial court also determined that the EBCC lacks

jurisdiction to review Bellevue's approval of the shoreline conditional use permit.

       PSE appeals, and the EBCC cross appeals.




       1 Administrative Record 3016-21; Clerk's Papers at 20-25.
No. 74464-0-1 (consolidated with No. 74465-8-l)/4


                                        LUPA


       PSE argues that the trial court improperly upheld the EBCC's disapproval

of the ordinance. We agree.

       LUPA governs judicial review of land use decisions.2 A "land use

decision" is "a final determination by a local jurisdiction's body or officer with the

highest level of authority to make the determination, including those with

authority to hear appeals . . . ."3

       Under LUPA, we sit in the same position as the superior court and apply

the standards provided in RCW 36.70C. 130(1) to the administrative record.4

These standards permit us to grant relief from a land use decision only if the

party seeking relief establishes that one of the six standards under RCW

36.700130(1 )(a) through (f) has been met.5




       2 Durland v. San Juan County, 182 Wn.2d 55, 63, 340 P.3d 191 (2014).

       3 RCW 36.700020(2).

       4 Dep't of Transp. v. City of Seattle. 192 Wn. App. 824, 836, 368 P.3d 251
(2016).

       5 Id.
No. 74464-0-1 (consolidated with No. 74465-8-l)/5


       Based on the parties' briefing, the only standards at issue in this case are

subsections (c)-(e), which state:

              (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.161

                  Decision Not Supported By Substantial Evidence

       PSE argues that substantial evidence does not support the EBCC's

Resolution No. 550. We agree.

       Under RCW 36.70C.130(1)(c), we must determine whether substantial

evidence supports the land use decision "when viewed in light of the whole

record before the court." Thus, we must determine "whether a fair-minded

person would be persuaded by the evidence of the truth of the challenged

findings."7

       PSE argues that its project is consistent with Bellevue's comprehensive

plan, which reflects Bellevue's effort to balance the city's needs with its

appearance and character. PSE's opening brief focuses on paragraphs 3, 5, 9,

10, 11, 12, 13, 15, and 16 of the EBCC's findings and conclusions. The EBCC




       6 RCW 36.700130(1).

       7 Lauer v. Pierce County. 173 Wn.2d 242, 252-53, 267 P.3d 988 (2011).
No. 74464-0-1 (consolidated with No. 74465-8-l)/6


responds by discussing paragraphs 3, 5, 6, 9, 10, 11, 12, 13, 14, and 16. Thus,

there are only eight paragraphs—3, 5, 9, 10, 11, 12, 13, and 16—that have been

briefed by both parties. Accordingly, we focus on these paragraphs to determine

whether PSE has met its burden under LUPA to overturn the EBCC's resolution.

                                 Paragraph No. 3

      PSE argues that this paragraph is not supported by substantial evidence

in the record. We agree.

      This paragraph of the EBCC's findings and conclusions states:

      The Hearing Examiner's Findings of Fact, Conclusions of Law and
      Recommendation that the decision criteria for a Conditional Use
      Permit (CUP) set forth in Land Use Code (LUC) 20.30B.140 have
      been met is not supported by material and substantial evidence.
      Specifically, the conditional use is not consistent with the
      Comprehensive Plan. LUC 20.30B.140.A (Hearing Examiner
      Record at 149C, 180C).'8]

      This paragraph states that no "material and substantial evidence" supports

the hearing examiner's decision. The citation in this paragraph to LUC

20.30B.140(A) shows that the focus of this paragraph is on the hearing

examiner's conclusion that the conditional use is consistent with the

comprehensive plan as required by the land use code.9
       Turning to the hearing examiner's decision, we conclude that it is

supported by substantial evidence in the record. Specifically, it cites Bellevue's
detailed staff report as well as attachment E to the report, which is a detailed




       8 Administrative Record at 3018.

       9 Administrative Record at 2179; Clerk's Papers at 61.
No. 74464-0-1 (consolidated with No. 74465-8-l)/7


comprehensive plan policy analysis. The hearing examiner's conclusion is

further supported by other specific evidence in the record.

       Paragraph 3 of the EBCC's resolution fails to explain why this evidence,

cited by the hearing examiner to support his conclusion that the permit is

consistent with Bellevue's comprehensive plan, is not substantial. It is

unpersuasive to state in conclusory fashion that no substantial evidence supports

the hearing examiner's decision without explaining why this is so.

       Likewise, the EBCC's briefing also fails to explain why substantial

evidence does not support the hearing examiner's decision. Moreover, the

citations to the record in the briefing do not show why the evidence cited by the

hearing examiner is not substantial. In the absence of more, we must assume

there is no sound basis to conclude that the hearing examiner's decision on this

point is not supported by substantial evidence. Accordingly, we conclude there is

no substantial evidence to support paragraph 3 of the EBCC's resolution.

                                 Paragraph No. 5

       PSE argues that this paragraph is not supported by substantial evidence

in the record. We again agree.

       This paragraph of the EBCC's findings and conclusions states:

       The Hearing Examiner found, based on evidence in the record, that
       the City of Bellevue and its residents would benefit from a new
       transmission line, primarily from improved system reliability, and
       reduction in power outages and their duration, which can be
       achieved with the "looping" provided with the new line but failed to
       weigh these benefits against the environmental harm and lack of
       compliance with the comprehensive plan which would make the
No. 74464-0-1 (consolidated with No. 74465-8-l)/8

        residents of East Bellevue worse off than doing nothing. (Hearing
        Examiner Record at 56-57F).t1°]

        This paragraph faults the hearing examiner for failing to weigh the claimed

benefits of PSE's project against the alleged "environmental harm and lack of

compliance with the comprehensive plan which would make the residents of East

Bellevue worse off than doing nothing."

        First, this paragraph fails to specify what part of the Bellevue

comprehensive plan is at issue when stating that PSE's project fails to comply

with this plan. Unlike paragraph 3 of the resolution, there is not even a citation

here to the land use code to guide us. Likewise, the EBCC's briefing also fails to

fill this gap.

        Second, there is nothing in this paragraph to explain on what basis the

alleged failure to balance competing interests—environmental or otherwise—

violates any law. Likewise, the EBCC's briefing does not address this point.

Again, we must assume there is no sound basis for this paragraph. Accordingly,

we conclude there is no substantial evidence to support paragraph 5 of the

resolution.


                                   Paragraph No. 9

        PSE argues that this paragraph is not supported by substantial evidence

in the record. We agree.

        This paragraph of the EBCC's findings and conclusions states:

        The Hearing Examiner's Findings of Fact, Conclusions of Law and
        Recommendation that Conditional Use Permit LUC 20.30B. 140(B)


        10 Administrative Record at 3018.


                                               8
No. 74464-0-1 (consolidated with No. 74465-8-l)/9

      has been met is not supported by material and substantial
      evidence. Throughout the documents, NW 8th, and especially 148th
      Ave are designated as Urban Boulevards, and part of the
      Enhanced Rights of Way; the routes are continually described as
      having no existing power lines. (Hearing Examiner Record 139-
      149C, 192F, 140C). This was not done by accident. 148th Ave was
      developed as an Urban Boulevard by a visionary City, and involved
      sacrifice for the greater good by private citizens. Homes were
      condemned and neighborhoods radically transformed to provide a
      national example of how major thoroughfares can be a pleasant
      park for commuters and residents alike. Obviously, a major
      element of the Urban Boulevard is a lack of visible utilities, such as
      distribution and transmission wires. The only visible utilities on NE
       8th and 148th are light poles.'11'

      This paragraph states that there is no "material and substantial evidence"

to support the hearing examiner's decision that the project's design complies with

LUC 20.30B.140(B). The citation in this paragraph to LUC 20.30B.140(B) shows

that this provision is the focus of the paragraph. This provision requires that a

project's design be "compatible with and respond[] to the existing or intended

character, appearance, quality of development and physical characteristics of the

subject property and immediate vicinity."12

       Turning to the hearing examiner's decision, we conclude that it is

supported by substantial evidence in the record. Specifically, the hearing

examiner cites Bellevue's staff report, hearing testimony, the Conceptual

Mitigation Plan, and other evidence to support his decision. Nothing in




       11 Administrative Record at 3019.

       12 LUC 20.30B. 140(B), http://www.codepublishing.com/WA/Bellevue/ (last
visited January 17, 2017).
No. 74464-0-1 (consolidated with No. 74465-8-l)/10


paragraph 9 of the resolution addresses any of this evidence or explains why it is

not substantial.


       Rather than addressing the evidence on which the hearing examiner relied

to support his conclusion, paragraph 9 of the EBCC's resolution states, in part,

that "NE 8th, and especially 148th Ave. are designated as urban

boulevards."™ In its briefing, the EBCC cites to two sections in the record in

apparent support of this statement. The first citation is to a September 2012

memorandum from Bellevue to the EBCC in which the terms "Urban Boulevards"

and "Urban Boulevards Initiative" appear. But a fair reading of the memorandum

does not support the claim that 148th Avenue is an urban boulevard. More

importantly, nothing in the memorandum suggests that such a designation would

bar this project. Rather, the memorandum speaks of Bellevue's continued review

of the project "to lessen [its] environmental and visual impacts."14 A fair reading

of the hearing examiner's December 2014 decision indicates that by the time of

the public hearing, environmental and visual impact concerns had been properly

addressed.

       The second citation to the record is to one page of a December 2011

document addressing aspects of the project. This document states that neither

NE 8th nor 148th Avenue then had overhead electrical distribution lines. But




       13 Administrative Record at 3019 (emphasis added).

       14 id, at 2014.


                                             10
No. 74464-0-1 (consolidated with No. 74465-8-l)/11

nothing in this document suggests that having such lines in those locations would

be inconsistent with Bellevue's comprehensive plan.

       Further, Bellevue points out that its comprehensive plan "does not use the

term 'urban boulevard' nor does it designate 148th Avenue as an 'urban

boulevard.'"17 Neither paragraph 9 of the resolution nor the EBCC's briefing does

anything to refute this argument. Thus, an underlying factual premise of

paragraph 9 is unsupported by substantial evidence.

       Lastly, paragraph 9 goes on to state: "Obviously, a major element of the

Urban Boulevard is a lack of visible utilities, such as distribution and transmission

wires. The only visible utilities on NE 8th and 148th are light poles." As Bellevue

correctly argues, nothing that has been cited to us shows that the comprehensive

plan bars electric lines from 148th Avenue.18

       For all of these reasons, we conclude that paragraph 9 is not supported by

substantial evidence in the record.


                                 Paragraph No. 10

       PSE argues that this paragraph is not supported by substantial evidence.

We agree.

      This paragraph of the EBCC's findings and conclusions states:

      The Hearing Examiner's Findings of Fact, Conclusions of Law and
      Recommendation that Conditional Use Permit LUC 20.30B. 140(A)
      has been met is not supported by material and substantial
      evidence. This conditional use is inconsistent with the
      Comprehensive Plan provisions noted below which repeatedly refer


      17 Brief of Respondent City of Bellevue at 2 n.2.

      18|d

                                            11
No. 74464-0-1 (consolidated with No. 74465-8-l)/12


       to Bellevue's Commitment to a City in a Park, and developing the
       Urban Boulevard and Enhanced Right of Way:
          a. UT-45 page 209 "avoid ... locating overhead lines in
       greenbelt and open spaces ... [.f
          b. UT-53 page 210 "require all utility ... facilities to be
             aesthetically compatible ... [.f
          c. UT-19 page 212 refers to city in a park, preserving trees
          d. UT-42 page 212 Design boulevards to reinforce the image of
             Bellevue as a "City in a Park"
          e. S-WI-44 Utilities page 214 serve need enhancing the visual
             quality of the community.[19]

      This paragraph states that "material and substantial evidence" does not

support the hearing examiner's decision that the conditional use permit is

consistent with the comprehensive plan. The citation in this paragraph to LUC

20.30B.140(A) shows that this land use code provision is the focus of this

paragraph.

      We already discussed in this opinion that substantial evidence exists to

support the conclusion that the conditional use permit is consistent with the

comprehensive plan. Nothing, either in this paragraph or in the EBCC briefing,

changes our conclusion on this point.

                                Paragraph No. 11

       PSE argues that this paragraph is not supported by substantial evidence.

We agree.

      This paragraph of the EBCC's findings and conclusions states:

      The evidence in the record does not support the NE 8th St, and
      148th Avenue route. (Hearing Examiner Record at 139-149C).
      "Understanding Bellevue's Commitment to Street Aesthetics" which
      cites the Formal Enhanced Right of Way & Urban Boulevards


       19 Administrative Record at 3019; Clerk's Paper at 22 (alterations in
original).


                                            12
No. 74464-0-1 (consolidated with No. 74465-8-l)/13

      Program whose mission is to "Enhance the visual and functional
      quality of city streets and gateways ...[.] It includes a 4-person
      Steering Committee of City Directors and Assistant Directors and
      [an] 8-person Program Team of city staff... [.]" (Hearing Examiner
      Record at 140C). This fundamental criteria was not regarded
      consistent with other rules and guidelines. As pointed out in the
      [Bellevue resident's] letter, more than 50,000 people enjoy this park
      daily, and the whole project will adversely affect this enjoyment;
      from construction delays to long-term visual pollution.[20]

      This paragraph states that the evidence in the record does not support

"the NE 8th St and 148th Avenue route" without specifying the relevant criteria in

LUC 20.30B.140. From the EBCC briefing, however, it appears that LUC

20.30B.140(D) is the focus of this paragraph of its resolution.21 Accordingly, we

also focus on this provision of Bellevue's land use code.

       Turning again to the hearing examiner's decision, we note that he

concluded that the "conditional use will not be materially detrimental to uses or

property in the immediate vicinity of the subject property."22 This conclusion is

based on Bellevue's staff report, the final MDNS—which was not the subject of

appeal—and other evidence in the record. Again, the question is whether the

EBCC correctly determined that this evidence was not substantial.

       LUC 20.30B. 140(D) states that Bellevue may approve a conditional use

permit if "[t]he conditional use will not be materially detrimental to uses or




       20 Administrative Record at 3020; Clerk's Papers at 24 (some alterations in
original).

       21 See Brief of Respondent/Cross-Appellant East Bellevue Community
Council at 23.

       22 Administrative Record at 2179.


                                              13
No. 74464-0-1 (consolidated with No. 74465-8-l)/14


property in the immediate vicinity of the subject property." Bellevue's land use

code does not define "materially detrimental."23 But "material" can be defined as

"[b]eing both relevant and consequential; crucial."24 And "detrimental" means

"[c]ausing damage or harm; injurious."25 The EBCC appears to imply, without

expressly stating, that the project will be materially detrimental to property in the

vicinity of the project.

       The EBCC relies on a 2012 Bellevue resident letter to support this

argument. The letter states: "50,000 . . . motorists . . . will see the impacts of this

proposal every day."

       The record shows that construction for this project will take between four

to six months to complete. Bellevue's staff report states that the project's traffic

impacts "will be temporary and occurring only during the construction phase."

Additionally, the construction will not occur in the same location for four to six

months because the transmission line covers 2.89 miles.

       This evidence is substantial in demonstrating that there will be no

materially detrimental impacts "to uses or property in the immediate vicinity of the




        23 See Chapter 20.50 LUC, http://www.codepublishing.com/WA/Bellevue
(last visited January 17, 2017).

        24 The American Heritage Dictionary (5th ed. 2016),
https://ahdictionary.com/word/search.html?q=material (last visited January 13,
2017).

        25 The American Heritage Dictionary (5th ed. 2016),
https://ahdictionary.com/word/search.html?q=detrimental (last visited January 13,
2017).


                                              14
No. 74464-0-1 (consolidated with No. 74465-8-l)/15


subject property" from the PSE project.26 That a 2012 letter suggests otherwise

does not establish a lack of substantial evidence to support the hearing

examiner's conclusion. Rather, it merely is evidence that might support a

different conclusion.


       We conclude there is no substantial evidence to support paragraph 11 of

the EBCC's resolution.

                                 Paragraph No. 12

       PSE argues that this paragraph is not supported by substantial evidence.

We agree.

       This paragraph of the EBCC's findings and conclusions states:

       The Hearing Examiner's Findings of Fact, Conclusions of Law and
       Recommendation that Conditional Use Permit LUC 20.30B. 140(D)
       has been met is not supported by material and substantial
       evidence. The impact of traffic on 148th Avenue NE including costs
       of adverse impacts to commerce, pollution, and commute time were
       not considered. (Hearing Examiner Report at p. 86).[27]

       As previously stated, LUC 20.30B. 140(D) states that Bellevue may

approve a conditional use permit if "[t]he conditional use will not be materially

detrimental to uses or property in the immediate vicinity of the subject property."

Substantial evidence does not support this paragraph of the EBCC's resolution.

       The EBCC cites the traffic impact section of Bellevue's staff report as

support for this conclusion. But the hearing examiner cited this report, along with

other evidence in the record, such as the MDNS, to support his conclusion.



        26 LUC 20.30B. 140(D), http://www.codepublishing.com/WA/Bellevue/ (last
visited January 17, 2017).

       27 Administrative Record at 3020; Clerk's Papers at 24.
                                             15
No. 74464-0-1 (consolidated with No. 74465-8-l)/16


      This paragraph of the EBCC's resolution, and their brief, fail to explain

why this evidence is not substantial to support the hearing examiner's

conclusion. Without this explanation, we must again assume there is no sound

basis for the EBCC's conclusion. Thus, we conclude that substantial evidence

does not support paragraph 12 of the EBCC's resolution.

                                 Paragraph No. 13

      PSE argues that this paragraph is not supported by substantial evidence.

We agree.

      This paragraph of the EBCC's findings and conclusions states:

      The Hearing Examiner's Findings of Fact, Conclusions of Law and
      Recommendation that Additional Criteria for Electrical Utility
      Facilities LUC 20.20.255[(E)(3)] has been met is not supported by
      material and substantial evidence. The record indicates that there
      have been few outages due to substation or transmission lines.
      There were 5 power outages in 10 years; 4 by trees, fixed within a
      day caused by transmission line failure. (Hearing Examiner Record
      26F, 19C). Outages are "mostly due to failures of overhead
      conductors and tree related events." (Hearing Examiner Record
      27F). Any claims of improved reliability are statistically
      insignificant. (Hearing Examiner Record 26F, 19C, 27F, Hearing
      Examiner Report at p. 11 para 3, stating that the two substations
      are currently underutilized).[28]

      LUC 20.20.255(E)(3) states that an applicant "shall demonstrate that an

operational need exists that requires the location or expansion at the proposed

site." Bellevue's land use code does not define "operational need."29




      28 Administrative Record at 3020; Clerk's Papers at 24.

        29 See Chapter 20.50 LUC, http://www.codepublishing.com/WA/Bellevue/
(last visited January 17, 2017).


                                           16
No. 74464-0-1 (consolidated with No. 74465-8-l)/17


      As support for his conclusion, the hearing examiner cited Bellevue's staff

report, testimony and a letter from PSE's engineer, and a reliability study, which

recommended an additional transmission line to the existing substations.

      The EBCC cites a list of EBCC council member questions and comments,

along with pages from PSE's 2013 System Reliability Review regarding outages,

to support its conclusion. The EBCC also cites the hearing examiner's finding

that the Lake Hills and Phantom Lake substations are "under-utilized." But this

paragraph of the EBCC's resolution, and their brief, fail to explain why the

evidence cited by the hearing examiner is not substantial to support his

conclusion. Again, without this explanation, we must assume there is no sound

basis for the EBCC's conclusion. Accordingly, substantial evidence does not

support paragraph 13 of the EBCC's resolution.

                                Paragraph No. 16

       PSE argues that this paragraph is not supported by substantial evidence.

We agree.

      This paragraph of the EBCC's findings and conclusions states:

      The project fails to achieve the desired benefit of redundancy
      because the "loop" cannot be completed as originally proposed.
      (Hearing Examiner Report at pp. iv and 36). PSE does not intend
      to construct the segment of the project along SE 16th until an
      unspecified date in the future. (Hearing Examiner Report at p.
      54).[30]

      Although not explicitly mentioned in this paragraph, it apparently refers to

LUC 20.20.255(E)(4). This provision requires that the applicant "demonstrate



      30 Administrative Record at 3020-21; Clerk's Papers at 24.


                                            17
No. 74464-0-1 (consolidated with No. 74465-8-l)/18


that the proposed electrical utility facility improves reliability to the customers

served and reliability of the system as a whole ... ."31

       The record shows that Bellevue proposed that PSE "defer[]" construction

of the S.E. 16th portion of the line due to a different city project affecting that

area. In the meantime, PSE will install three switches on certain poles so the

power to the Phantom Lake substation "can be switched from north or from the

south."


          PSE determined that the reliability impact of these switches "won't be as

great as the completed project." But "further reliability improvement for [the]

Phantom Lake substation will occur in the future when a second transmission line


segment is added along Southeast 16th to provide a loop feed to the Phantom

Lake substation."32

          Ultimately, the hearing examiner recommended that PSE "not be allowed

to run a separate new transmission line down the south side of SE 16th Street."

The hearing examiner also concluded that the project satisfied LUC

20.20.255(E)(4). As support for his conclusion, the hearing examiner cited

testimony and a letter from PSE's engineer and a reliability study, which

recommended an additional transmission line to the existing substations.

       Although the current project does not fully achieve the improved reliability

result that PSE originally anticipated, that does not mean that the project fails to



        31 LUC 20.20.255(E)(4), http://www.codepublishing.com/WA/Bellevue/
(last visited January 17, 2017).

       32 Record of Proceeding (November 20, 2014) at 37.

                                              18
No. 74464-0-1 (consolidated with No. 74465-8-l)/19

"improve[] reliability to the customers served and reliability of the system as a

whole."33 The record shows that the project still improves reliability, but not as

much as it would have as originally proposed. The EBCC acknowledges this fact

in its brief. Thus, we conclude there is no substantial evidence to support

paragraph 16 of the EBCC's resolution.

                      Decision Outside the EBCC's Authority

       PSE argues that the EBCC exceeded its authority by passing Resolution

500. We disagree.

       Under RCW 36.70C.130(1)(e), we may grant PSE relief if it establishes

that the EBCC's decision "is outside [EBCC's] authority or jurisdiction." This is a

question of law that we review de novo.34

       Under RCW 35.14.040(3), the EBCC has the authority to approve or

disapprove conditional use permits approved by Bellevue to the extent of

property within the EBCC's area.35 But this statute also provides that the

community council's disapproval "shall not affect the application of any ordinance

or resolution affecting areas outside the community municipal corporation."36




        33 LUC 20.20.255(E)(4), http://www.codepublishing.com/WA/Bellevue/
(last visited January 17, 2017).

      34 See Phoenix Dev., Inc. v. City of Woodinville, 171 Wn.2d 820, 828, 256
P.3d 1150 (2011).

       35 See RCW 35.14.040.

       36 Id.


                                             19
No. 74464-0-1 (consolidated with No. 74465-8-l)/20


       Here, the EBCC exercised its authority under RCW 35.14.040(3) to

disapprove Bellevue's Ordinance 6226. The trial court properly concluded that

the EBCC's decision was not outside its authority or jurisdiction to the extent of

its area. Thus, the trial court concluded that PSE failed to satisfy its burden

under RCW 36.70C.130(1)(e).

       PSE makes several arguments in an attempt to show that the EBCC

exceeded its authority. We do not address all of them because it is unnecessary

to do so in view of our disposition of this appeal.

       This is not the first dispute between these litigants over the application of

RCW 35.14.040 to land use issues. In City of Bellevue v. East Bellevue

Community Council, this statute was at issue in connection with the EBCC's

disapproval of certain Bellevue actions.37 In that case, the supreme court stated:

               The obvious purpose of the statute is to place final decision
       making power in the community council where land use regulations
       affecting property within its jurisdiction are concerned. RCW
       35.14.040 provides a community council with authority to
       independently determine whether to approve or disapprove land
       use legislation affecting territory within its jurisdiction, in keeping
       with the Legislature's intent to allow local level decision making.
       Therefore, where there is room for exercise of discretion as to
       whether particular land use regulations should be applied to
       property within the municipal corporation, the community council
       must be allowed to exercise that discretion to carry out the
       legislative intent underlying RCW 35.14.040J38!




       37 138 Wn.2d 937, 939, 983 P.2d 602 (1999).

       38 id. at 945 (emphasis added).
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       Here, the EBCC exercised its authority to disapprove within its jurisdiction

the conditional use permit authorized by Bellevue. Thus, the primary question is

whether there was room for the EBCC to exercise its discretion in doing so.

       PSE argues, for the first time in its reply brief, that the EBCC "asserts the

right to unilaterally affect the reliability of power to Bellevue homeowners outside

its territory." Because PSE makes this argument for the first time in its reply

brief, it is too late for us to consider.39 We decline to do so.

       However, Bellevue makes a similar argument as a respondent. It argues

that the EBCC's decision, if left standing, would have an extraterritorial affect

because it will affect citizens outside the EBCC's area.

       As we discussed earlier in this opinion, the area over which EBCC has

jurisdiction is bounded on the north by NE 8th Street. The area includes 148th

Avenue S.E., and the service area for the two substations to be linked by the

project are only partially within the EBCC's area.

       RCW 35.14.040 provides that the EBCC's disapproval "shall not affect the

application of any ordinance or resolution affecting areas outside the community

municipal corporation." Because we hold that PSE has met its burden to show

that the EBCC's resolution is improper, we need not also decide whether the

resolution violates the geographical limitations of this statute. Accordingly, that is

an issue left for decision another day.




      39 See Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828
P.2d 549 (1992); RAP 10.3(c).


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              Clearly Erroneous Application of the Law to the Facts

       PSE argues that the EBCC erroneously applied the law to the facts by

failing to accord substantial weight to the hearing examiner's recommendation.

In making this argument, PSE focuses on paragraphs 4, 6, 13, and 14 of the

EBCC's findings and conclusions. Because, for the reasons previously stated in

this opinion, we focus on other paragraphs of the resolution, we need not

address these arguments.

                       Erroneous Interpretation of the Law

       PSE argues in its opening brief that the EBCC erroneously interpreted the

law. PSE fails to state which law the EBCC erroneously interpreted.

Accordingly, we need not address this argument.40

      The parties also argue other issues regarding the conditional use permit in

their briefing. Because of our disposition of this case, we need not address those

other arguments.

                        JURISDICTION TO REVIEW
                   SHORELINE CONDITIONAL USE PERMITS

      On cross appeal, the EBCC argues that the trial court improperly

concluded that the EBCC lacks jurisdiction to approve or disapprove the

shoreline conditional use permit granted by Bellevue in this case. We hold that

the plain words of RCW 35.14.040(3) do not give the EBCC jurisdiction to

approve or disapprove shoreline conditional use permits granted by Bellevue.




      40 See Darkenwald v. Emp't Sec. Dep't, 183 Wn.2d 237, 246, 350 P.3d
647 (2015); RAP 10.3(a)(6).


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No. 74464-0-1 (consolidated with No. 74465-8-l)/23

       We interpret statutes to determine and apply the legislature's intent.41 The

legislature's intent is solely derived "from the statute's plain language,

considering the text of the provision at issue ... ,"42

       "Where a statute specifically designates the things or classes of things

upon which it operates, an inference arises in law that all things or classes of

things omitted from it were intentionally omitted by the legislature under the

maxim expressio unius est exclusio alterius—specific inclusions exclude

implication."43

       We review de novo questions of statutory interpretation.44

       RCW 35.14.040(3) is the sole basis on which the EBCC bases its claim of

authority to review shoreline conditional use permits approved by Bellevue. That

statute states when a city council's adoption of ordinances applying to land and

certain other matters becomes effective within the community municipal

corporation's area. It provides:

       The adoption, approval, enactment, amendment, granting or
       authorization by the city council... of any ordinance or resolution
       applying to land,... within any community council corporation shall
       become effective within such community municipal corporation ... on
       approval by the community council, ... with respect to the following:

                                                                             [45]
       (3) Conditional use permit, special exception or variance;


       41 Sequra v. Cabrera, 184 Wn.2d 587, 591, 362 P.3d 1278 (2015).

       42 lU

       43 Wash. Nat. Gas Co. v. Pub. Util. Dist. No. 1 of Snohomish County. 77
Wn.2d 94, 98, 459 P.2d 633 (1969).

       44 Western Plaza, LLC v. Tison, 184 Wn.2d 702, 707, 364 P.3d 76 (2015).

       45 (Emphasis added.)
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No. 74464-0-1 (consolidated with No. 74465-8-l)/24



       Here, Bellevue Ordinance No. 6226 adopted the hearing examiner's

recommendation to approve, with conditions, PSE's application for a conditional

use permit and shoreline conditional use permit. The issue is whether the EBCC

has authority under the above statute to bar the effectiveness within its area of

Bellevue's Ordinance No. 6226 as it applies to the shoreline conditional use

permit. Specifically, the question is whether "shoreline conditional use permits"

constitute "conditional use permit[s]" under this statute.

       The plain words of this provision of the statute specify three types of land

use matters that the EBCC has the authority to either approve or disapprove

within its area. These matters are similar to each other in the sense that they are

terms generally applicable to land use matters. For example, one respected

treatise describes "conditional use" and "special exception" as describing the

same thing.46 Similarly, a "variance" is defined as "[a] license or official

authorization to depart from a zoning law."47

       Shoreline conditional use permits are not expressly included in the

statutory text. Yet the EBCC argues that the legislature impliedly included such

permits as a subset of "conditional use permits." We are not persuaded this is

so.




       4617 William B. Stoebuck & John W. Weaver, Washington Practice:
Real Estate: Property Law § 4.22 at 252 (2d ed. 2004).

       47 Black's Law Dictionary 1787 (10th ed. 2014).


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No. 74464-0-1 (consolidated with No. 74465-8-l)/25

       As PSE correctly argues, shoreline conditional use permits are governed

by the provisions of chapter 90.58 RCW. That statutory framework imposes

rigorous requirements that reflect, in our view, a primacy of state interests over

local interests with respect to Washington's shorelines.

       On the other hand, conditional use permits are governed by the provisions

of chapter 35.63 RCW. This separate chapter, enacted well before chapter

90.58 RCW, does not reflect, in our view, the primacy of state interests over local

interests with respect to land use matters related to shorelines. Rather, the

chapter focuses on local interests.

       In short, this latter statutory framework is sufficiently distinct in focus from

the former to undercut the argument that "shoreline conditional use permits" are

merely a subset of "conditional use permits." While these statutory provisions

operate in tandem, they are sufficiently distinct in purpose for us to infer that the

legislature did not intend that RCW 35.14.040(3) include both types of use

permits.

       We note that the legislature has had opportunities to amend the provisions

of RCW 35.14.040(3) to include the express term "shoreline conditional use

permit" within the scope of decisions that a community municipal corporation may

approve or disapprove within its area. But the legislature has not done so.

       Of course, there could be many reasons why the legislature has chosen

not to amend this statute to add expressly what the EBCC argues is implied. But

in light of the distinct statutory underpinnings of these two types of use permits

that we just discussed, we decline to add words to the statute that the legislature



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No. 74464-0-1 (consolidated with No. 74465-8-l)/26


did not. Whether the statute should be amended to expressly include shoreline

conditional use permits is a question more properly left to the legislature to

decide.


       Accordingly, based on the rules of statutory construction, we conclude that

shoreline conditional use permits are not within the scope of RCW 35.14.040(3).

Thus, the EBCC is without authority to either approve or disapprove within its

area shoreline conditional use permits granted by Bellevue.

                                ATTORNEY FEES

       The EBCC requests reasonable attorney fees on appeal. Because there

is no authority for an award in its favor, we decline to award such fees.

       The EBCC requests attorney fees under RCW 4.84.370, which states in

relevant part:

       (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 ... of a decision by a county, city, or town to issue,
       condition, or deny a development permit involving a . . . conditional
       use . . . . 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 ... ;
       and
             (b) The prevailing party on appeal was the prevailing party
       or substantially prevailing party in all prior judicial
       proceedings.[48]




       48 (Emphasis added.)

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No. 74464-0-1 (consolidated with No. 74465-8-l)/27


       First, the EBCC is neither the prevailing nor the substantially prevailing

party on appeal. That is because we reverse the trial court's LUPA petition

decision on the basis previously discussed in this opinion.

       Second, and more importantly, the plain words of this statute on which the

EBCC relies limit an award of fees to one who prevails or substantially prevails

on appeal of a decision by a "county, city, or toivn.'49 The EBCC is none of

these three entities. Rather, it is a "community municipal corporation,"

established under chapter 35.14 RCW. Thus, even if it had been a prevailing or

substantially prevailing party on appeal, it would still not be entitled to an award

of fees on appeal.

       The EBCC argues that it is a "local jurisdiction" under RCW

36.70C.020(3), the definitional section of LUPA. But this makes no difference to

the proper analysis of whether it is entitled to an award of fees under RCW

4.84.370, the fee statute at issue.

       RCW 36.70C.020(3) provides:

       Unless the context clearly requires otherwise, the definitions in
       this section apply throughout this chapter.


       (3) "Local jurisdiction" means a county, city, or incorporated
       town.!50!

       The plain words of this statute make clear that this definition is limited to

LUPA. There is nothing in this text to show that it also applies to RCW 4.84.370,




       49 Durland, 182 Wn.2d at 77 (emphasis added).

       50 (Emphasis added.)
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No. 74464-0-1 (consolidated with No. 74465-8-l)/28

a separate statute. In the absence of such a showing, there is simply no

authority to award EBCC attorney fees under RCW 4.84.370.

      We affirm the orders on jurisdictional issues and on the motion to quash.

We reverse the order dismissing the LUPA petition. We deny the EBCC's

request for an award of attorney fees on appeal.

                                                       ^cx.X

WE CONCUR:




   l^'y. ^                                     VaLMl^QOg..




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