                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                      February 27, 2018
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 TAZMINA VERJEE-VAN and BRIAN VAN,                                  No. 49329-2-II
                                                              (Linked with No. 48947-3-II)
                               Appellants,
                                                              UNPUBLISHED OPINION
        v.

 PIERCE COUNTY, acting through its
 Department of Planning and Land Services and
 Office of the Pierce County Hearing Examiner,

                               Respondents.

       BJORGEN, C.J. — Tazmina Verjee-Van and Brian Van (the Vans) appeal the superior

court’s denial of their petition under the Land Use Petition Act (LUPA), chapter 36.70A RCW.

In their petition, the Vans challenge conditions imposed by Pierce County on a shoreline permit

exemption issued for the Vans’ pier. The Vans argue that: (1) the hearing examiner erred by

determining that the legality of a neighboring pier owned by Neil Borgert was not reviewable

under the doctrine of finality and (2) the conditions imposed on their shoreline permit exemption

amount to an unconstitutional taking. In addition to the County, Borgert and Dan and Phyllis

Abercrombie, adjacent property owners on either side of the Vans, are respondents arguing in

favor of the County’s exemption conditions. Pierce County, Borgert, and Dan and Phyllis

Abercrombie also request attorney fees and costs on appeal.

       We affirm the superior court and we award reasonable attorney fees and costs to Pierce

County, Borgert, and the Abercrombies.
No. 49329-2-II
(Linked w/ No. 48947-3-II

                                              FACTS

A.     Borgert Pier

       The Vans own property on the shoreline of Lake Tapps, which is next to a lot previously

owned by Kelly Winne and Julie Helmka-Winne (the Winnes) and which is presently owned by

Neil Borgert. At some point before or during April 1998, the Winnes constructed a pier on their

property without acquiring a shoreline exemption from Pierce County or submitting an

application for a permit. On April 18, 1998, Helmka-Winne submitted a shoreline exemption

request for the pier as constructed. On April 20, Helmka-Winne submitted an application for a

building permit for the pier, and on July 9, the County issued a building permit to the Winnes for

the pier as built. The County also approved the Winnes’ shoreline exemption request on June 13,

2001. The building permit and shoreline exemption were never appealed. In December 2003,

Borgert purchased the property from the Winnes.

B.     First Hearing Examiner Ruling AA7-14

       On May 23, 2014, the Vans submitted an application to the Pierce County Planning and

Land Services Department (County) for an exemption from the requirement for a shoreline

substantial development permit to construct a 30 foot long by 5 foot wide pier and access ramp

on Lake Tapps. On September 5, the County denied the request, stating that the Vans’ proposed

pier “was closer than ten feet from a side property line extended at a right angle to the shoreline,”

and therefore was “not exempt from the [permit] requirement . . . per Pierce County Code (PCC)

. . . [c]hapter 20.56 Piers and Docks.” Clerk’s Papers (CP) at 382. On September 18, the Vans

appealed the County’s denial of their requested exemption to the County’s hearing examiner

(Examiner) under number AA7-14.


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       On March 18, 2015, the Examiner held a hearing and took testimony regarding the denial

of the Vans’ requested exemption. The Vans argued that the County’s method of measuring an

extended property line by “continu[ing] the [subject] property line to the bulkhead and then

waterward from the bulkhead at an angle of 90 degrees,” was inappropriate as applied to their

property because it was located on a cove, or curved shoreline, as opposed to a straight shoreline.

CP at 255, 257. On April 7, the Examiner ruled that the County’s method of determining side

property lines conflicted with state precedent and granted the Vans’ appeal with regard to the

side property line dispute. The Examiner also concluded that “insufficient evidence was

presented to determine whether the pier satisfies all the criteria for an exemption as set forth in

the SMA [Shoreline Management Act], WAC [Washington Administrative Code], SMP

[Shoreline Master Program], and SUR [Shoreline Management Use Regulations]. Therefore no

decision is made thereon.” CP at 264. No party appealed this decision.

C.     Second Hearing Examiner Ruling AA9-15

       On April 17, 2015, Mike Erkkinen, senior planner for the County, e-mailed the Vans

stating that “insufficient evidence has been presented in this matter for staff to determine if the

proposed pier meets provisions in the [SMP] and [SUR],” and asked the Vans to provide “an

updated site plan.” CP at 369. On May 1, the Vans’ attorney sent a letter to the county

prosecutor’s office replying:

       Given that the hearing examiner ruled that the County’s decision was clearly
       erroneous, no other conditions exist that the Vans need to meet to satisfy the
       exemption requirements, and no other property owner has been required to do what
       Mr. Erkkinen seeks to require of the Vans. As such, the Vans will not be submitting
       any additional material for their pier as all of the material requested was previously
       provided in their pier application that was originally submitted to PALS.



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CP at 368.

       On May 3, the County received a report that a pier was being constructed on the Vans’

property. On May 11, the County conducted a site visit of the Vans’ property and found that a

pier resembling the Vans’ proposed pier had been constructed on the property. This pier,

however, was 34 feet long rather than the proposed 30 feet. On June 30, the County granted the

Vans a conditional exemption from the SMA substantial development permit requirement,

subject to the following requirements:

       1. The pier length shall be shortened from the proposed 30 feet to a length that
       provides a minimum separation of 20 feet from the piers associated with the
       adjacent waterfront properties.

       2. All portions of the recently constructed pier that are less than 20 feet from an
       adjacent pier or that are more than 30 feet in length shall be removed no later than
       30 days from the date of this Exemption.

CP at 250. At the time of the site visit, the Vans’ pier was 9 feet 3 inches from the Borgert pier.

On July 13, the Vans appealed the County’s conditional exemption to the Examiner. This

administrative appeal was identified as AA9-15.

       On November 18, 2015, the Examiner held a hearing and took testimony regarding the

denial of the Vans’ conditional exemption. At the hearing, Erkkinen testified that “a 20-foot

separation [between piers] is necessary to provide ingress and egress for both property owners.”

CP at 211. On December 14, the Examiner issued a decision upholding the two conditions in the

County’s conditional shoreline exemption.

       First, the Examiner rejected the Vans’ argument that because the Borgert pier was

illegally constructed, they were not required to maintain the 20-foot separation from it. The

Examiner’s basis for this ruling was expressed in finding 14, which states:


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       14. Appellants cannot now challenge the legality of the [pier] located on the
       Borgert parcel. Following passage of the Land Use Petition Act (LUPA) by the
       Washington State Legislature, our Washington [State] Supreme Court has required
       appeals of land use actions to comply with the time limits set forth in LUPA. The
       court has consistently held that legal challenges to land use action must be brought
       within the LUPA statute of limitations of 21 days (except in shoreline cases appeals
       to the Shorelines Hearings Board must be brought within 30 days). In Department
       of Ecology v. City of Spokane Valley, et. al., 167 Wn. App. 952 (2012), our Court
       of Appeals held that the granting or denial of an exemption from the substantial
       development permit process may be challenged under LUPA as the Department of
       Ecology did in that case. Since no challenges to the Borgert Dock were filed during
       the LUPA appeal period of 21 days, our courts and LUPA consider the exemption
       approval a final land use decision. In Chelan County v. Nykreim, 146 Wn.2d 904
       (2002), our Supreme Court quoted from its decision in Wenatchee Sportsman Assn.
       v. Chelan County, 141 Wn.2d 175 (2002), as follows:

              This court has also recognized a strong public policy supporting
              administrative finality in land use decisions. In fact, this court has
              stated that “[i]f there were not finality [in land use decisions], no
              owner of land would ever be safe in proceeding in development of
              his property. To make an exception . . . would defeat the purpose
              and policy of the law in making a definite time limit. (pp. 931, 932).

       Such is especially true in the present case where Mr. Borgert purchased his parcel
       with the dock permitted and built (except for SEPA review). The Court in Nykreim
       continued:

              To allow Respondents to challenge a land use decision beyond the
              statutory period of 21 days is inconsistent with the Legislature’s
              declared purpose of enacting LUPA. Leaving land use decisions
              open to reconsideration long after the decisions are finalized places
              property owners in a precarious position and undermines the
              Legislature’s intent to provide expedited appeal procedures in a
              consistent, predictable and timely manner. (p. 933).

       The Supreme Court then extended LUPA’s scope and review to include ministerial
       decisions such as building permits that require no notice whatsoever:

              Building permits are subject to judicial review under LUPA.
              Historically, actions on building permits have been characterized by
              this court as ministerial determinations, which answers the question
              whether LUPA applies to ministerial land use decisions. 136 Wn.2d
              at 929.


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       See also Durland v. San Juan County, 182 Wn.2d 55 (2014), wherein the court
       prohibited a challenge to San Juan County’s issuance of a building permit for a
       garage addition. In that case petitioners did not receive notice of the building permit
       until subsequent to the expiration of the administrative appeals period.
       Furthermore, decisions interpreting LUPA hold that a structure approved for
       construction under a faulty building permit or other permit becomes a valid, legal
       use and not a nonconforming use. In issuing the exemption [to the Vans], PALS
       had to consider the Borgert [pier] as a legal, permitted structure.

CP at 220-21.

       Second, the Examiner determined that the condition requiring a 20-foot separation

between adjacent piers was consistent with SUR and SMA policies, approved by the Pierce

County legislative authority, and properly addressed concerns regarding the safe ingress and

egress of watercraft. The Examiner denied the Vans’ appeal, holding that they must “strictly

comply with the two conditions imposed on the [SMA permit] exemption” by the County. CP at

225.

D.     LUPA Petition

       On January 4, 2016, the Vans filed a LUPA petition in superior court, appealing the

Examiner’s denial of their appeal of the County’s June 30, 2015 administrative decision granting

the conditional shoreline exemption. On June 24, the superior court heard argument in this case

and, on July 26, filed its decision denying the Vans’ LUPA petition, stating in part:

               The legality of [t]he Borgert [p]ier, as being built without valid permits, is
       central to [t]he Vans argument. If [t]he Borgert’s pier is illegal, then all decisions
       from the [E]xaminer must fall as to [t]he Vans’ pier. This Court finds [t]he Vans
       argument, as to the legality of the [Borgert pier], is another attempt to raise an issue
       which has already been ruled upon by the Court in denying [the Vans’] attempt to
       obtain a writ of mandamus (Court’s decision filed March 30, 2016). The subject
       matter of the writ was to challenge the legality of the County’s action in allowing
       the Borgert’s [pier] to be built and remain in its current location.



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                The Court’s decision of March 30, 2016, is under appeal, but until an
        appellate court rules, the Court’s March 30, 2016, decision still stands.
        ....
                The two conditions imposed by Mr. Erkkinen were not unreasonable and
        ensured unobstructed moorage space for each property owner. [The Vans] argue
        that [t]he Borgert’s [pier] is in fact illegal and interferes with the lateral line case
        law of Washington State.
                Once again, the Court has previously ruled on the legality of the Borgert’s
        pier and has ruled that [the Vans] did not timely file any action, under [LUPA], in
        contesting its construction. The legality of Borgert’s [pier] is not an issue before
        this court.

CP at 863-66.

        On August 19, the Vans appealed the superior court’s July 26, 2016 denial of their LUPA

petition.

                                             ANALYSIS

                                      I. STANDARD OF REVIEW

        LUPA governs judicial review of land use decisions. RCW 36.70C.030. Under RCW

36.70C.020, the action here on appeal is a land use decision. Under LUPA, we may grant relief

from a land use decision only if the party seeking relief has shown:

        (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



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

RCW 36.76C.130(1). We review rulings under RCW 36.70C.130 de novo. Durland v. San Juan

County, 182 Wn.2d 55, 64, 340 P.3d 191 (2014).

       The Vans assign error to the Examiner’s findings of fact 8, 10, 13, 14, and 15 and

conclusions of law 4, 6, 8, and 9. We review whether substantial evidence supports the findings

of fact and whether those findings support the conclusions of law. Scott’s Excavating

Vancouver, LLC v. Winlock Properties, LLC, 176 Wn. App. 335, 341, 308 P.3d 791 (2013).

Substantial evidence is evidence sufficient to persuade a rational fair-minded person that the

premise is true. Id. at 341-42. We view the evidence in the light most favorable to the prevailing

party below, here the County. Id. at 342. We further defer to the finder of fact on issues of

conflicting evidence, witness credibility, and the persuasiveness of the evidence. Id. The party

challenging a finding of fact bears the burden to show that it is not supported by the record. Id.

We review conclusions of law de novo. Id.

       Our Supreme Court has also made clear that it is not the appellate court’s “obligation to

comb the record with a view toward constructing arguments for counsel as to what findings are

to be assailed and why the evidence does not support these findings.” In re Estate of Lint, 135

Wn.2d 518, 532, 957 P.2d 755 (1998). We have previously held that a party waives its challenge

to a finding of fact by failing to properly assign error to a finding. In re Muller, 197 Wn. App. at

487. Although the Vans offer some argument associated with their challenged findings of fact

and conclusions of law, their arguments consist of conclusory assertions and citation to the entire

Examiner ruling for AA9-15. Br. of Appellant at 7-10. We do not consider conclusory

arguments unsupported by citation to authority or rational argument. State v. Mason, 170 Wn.


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App. 375, 384, 285, P.3d 154 (2012). Therefore, we do not independently address the Vans’

challenges to findings of fact 8, 10, 13, and 15 and conclusions of law 4, 6, 8, and 9. However,

we address below the Vans’ challenge to finding of fact 14 as it relates to their arguments about

finality.

                                            II. FINALITY

A.      Final Decision

        The Vans contend that there has never been a final administrative decision regarding the

Borgert pier, and therefore the doctrine of finality does not apply in this case. If the Vans are

correct in this regard, then they may argue in this appeal that the Borgert pier is illegal and that

the conditional shoreline exemption is therefore without legal basis. We disagree with the Vans’

assertion.

        In order to appeal an administrative decision under PCC 1.22.090, there must be a final

decision. Agency action is final “‘when it imposes an obligation, denies a right, or fixes a legal

relationship as a consummation of the administrative process.’” Evergreen Washington

Healthcare Frontier LLC v. Dep’t of Soc. & Health Servs., 171 Wn. App. 431, 449, 287 P.3d 40

(2012) (internal citations omitted) (quoting Wells Fargo Bank, N.A. v. Dep’t of Revenue, 166

Wn. App. 342, 356, 271 P.3d 268 (2012)). Our Supreme Court has stated that “[a] final agency

action ‘implies a definitive act of the agency, action which is binding until and unless it is set

aside by a court.’” Jones v. Dep’t of Health, 170 Wn.2d 338, 357, 242 P.3d 825 (2010) (quoting

Charles H. Koch, Jr., ADMINISTRATIVE LAW AND PRACTICE § 13.20, at 335 (2d ed. 1997)).

        In this case, the 2001 approval of the shoreline exemption for the Borgert pier constituted

a final agency action that could have been appealed. The County approved a shoreline


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exemption on June 13, 2001 for what would eventually be Borgert’s “5 x 24 as built [pier].” CP

at 52. The County’s approval of the exemption request indicates that the County determined that

the pier comported with applicable county regulations. The effect of a shoreline exemption is to

relieve the applicant of any obligation to obtain a shoreline substantial development permit for

the proposal. PCC 20.76.030(A)-(B). Because the 2001 shoreline exemption communicated a

definitive act of an agency fixing a legal relationship, it was a final administrative action that

Verjee-Van could have appealed.

B.     Doctrine of Finality

       Under the doctrine of finality, failure to appeal a final decision subject to LUPA will

preclude further review. In Chelan County v. Nykreim, the County attempted to revoke land use

decisions 14 months after they had been made because they had been erroneously approved. 146

Wn.2d 904, 914-15, 917-18, 52 P.3d 1 (2002). The Supreme Court held that even if the original

land use decision was erroneous, the judicial “policy of finality of land use decisions,” and the

provisions of LUPA precluded further review of that decision through a declaratory judgment

action after the deadline for an appeal under LUPA had passed. Id. at 932-33. The court

explained that it has:

       [R]ecognized a strong public policy supporting administrative finality in land use
       decisions. In fact, this court has stated that “if there were not finality [in land use
       decisions], no owner of land would ever be safe in proceeding with development of
       his property. . . . To make an exception . . . would completely defeat the purpose
       and policy of . . . making a definite time limit.”

Id. at 931-32 (alterations in original) (quoting Wenatchee Sportsmen Ass’n v. Chelan County,

141 Wn.2d 169, 181-82, 4 P.3d 123 (2000)).




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       A final local government decision on a request for a shoreline exemption may be

challenged under LUPA. Dep’t of Ecology v. City of Spokane Valley, 167 Wn. App. 952, 964,

275 P.3d 367 (2012); RCW 36.70C.020(2)(a). Consequently, the same policies favoring finality

in Nykreim are also at play in this setting.

       The land use decision regarding the Borgert pier may not be reviewed in the absence of a

timely appeal under LUPA because the County’s decision on shoreline exemption was a final

agency decision. The Vans did not appeal the shoreline exemption permit regarding the Borgert

pier. Thus, the Examiner’s finding of fact 14 that “[a]ppellants cannot now challenge the legality

of the [pier] located on the Borgert parcel,” is supported by substantial evidence because a final

decision was in fact made, as discussed above. To the extent this finding draws a legal

conclusion under the doctrine of finality, it is fully consistent with Nykreim and LUPA, as

discussed above. Consequently, the Examiner did not err by concluding that under the doctrine

of finality, the Borgert pier must be deemed legal.

       The Vans’ principal challenge to the condition of the shoreline exemption requiring a

minimum separation from adjacent piers is that the Borgert pier is illegal. However, under the

doctrine of finality the Borgert pier must be deemed legal and, thus, the Vans’ remaining

challenges to the exemption conditions are those in their challenges to conclusions of law 4, 6, 8,

and 9. For the reasons set out above, they have waived those challenges. Therefore, we hold

that the Examiner properly determined that the 20-foot pier separation condition was appropriate

based on the policy concerns relating to safe use of watercraft and navigability.




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C.     Res Judicata

       Borgert and the Abercrombies also argue that the Vans’ argument regarding the legality

of the Borgert pier is barred under the doctrine of res judicata. However, our decision in the

linked case, Tazmina Verjee-Van v. Pierce County, No. 48947-3-II, slip op. at 2017 WL 6603662

(Wash. Ct. App. Dec. 27, 2017) (unpublished) and our analysis above in the present appeal

establish the legality of the Borgert pier under the doctrine of finality. Therefore, it is not

necessary to reach the res judicata argument raised by Borgert and the Abercrombies.

                                     III. REGULATORY TAKINGS

       The Vans also claim that the County’s requirement to maintain a 20-foot setback between

their pier and neighboring piers amounts to an unconstitutional regulatory taking. We disagree.

       The Fifth Amendment to the United States Constitution provides that private property

shall not be taken for public use without just compensation. Burton v. Clark County, 91 Wn.

App. 505, 515, 958 P.2d 343 (1998). Similarly, the Washington Constitution article I, section 16

states that “[n]o private property shall be taken or damaged for public . . . use without just

compensation having been first made.” A regulation of the use of land may result in a

constitutional taking. Presbytery of Seattle v. King County, 114 Wn.2d 320, 329, 87 P.2d 907

(1990) (citing Orion Corp. v. State, 109 Wn.2d 621, 747 P.2d 1062 (1987)).

       The Vans argue that the requirement to maintain a 20-foot distance between piers

constitutes a regulatory taking, relying on our opinion in Isla Verde International Holdings., Inc.

v. City of Camas, 99 Wn. App. 127, 990 P.2d 429 (1999). However, Isla Verde concerned an

ordinance that required a property developer to set aside a portion of its property as open space

to preserve areas for wildlife and recreational purposes. 99 Wn. App. at 138-39. We


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characterized that ordinance as an “exaction,” because it required a private party “to dedicate a

significant portion of its property for a public benefit.” 99 Wn. App. at 138-39. The state

Supreme Court affirmed, but on other grounds. It concluded that the open space condition

violated RCW 82.02.020 and did not reach arguments on its constitutionality. Isla Verde Int'l

Holdings, Inc. v. City of Camas, 146 Wn.2d 740, 745, 49 P.3d 867 (2002).

       In the present appeal, the Vans do not contend that they have been required to set aside

part of their land for the public’s use, but rather that the County’s regulations have deprived them

of the use of part of their property. Division One of this court has explained that a regulatory

taking occurs when “‘government actions do not encroach upon or occupy the property yet still

affect and limit its use to such an extent that a taking occurs.’” Berst v. Snohomish County, 114

Wn. App. 245, 255-56, 57 P.3d 273 (2002) (quoting Palazzolo v. Rhode Island, 533 U.S. 606,

617, 121 S. Ct. 2448, 150 L. Ed. 2d 592 (2001)). Therefore, by arguing that the County has

engaged in a taking by operation of its regulations, the Vans have raised a regulatory taking

claim, not an exaction claim, and their reliance on Isla Verde is misplaced.1

       In Guimont v. Clarke, the Supreme Court set out the showing needed to sustain a

regulatory taking claim. 121 Wn.2d 586, 854 P.2d 1 (1993). The court noted that regulatory

taking claims are subject to two threshold inquiries. Id. at 594-95, 600-01. First, a court

considers “whether the regulation denies the owner a fundamental attribute of ownership,” such

as the right to possess, exclude others, dispose of property, or “make some economically viable




1
 Furthermore, the Vans confirmed that they were alleging a regulatory taking in this appeal at
oral argument. Wash. Court of Appeals, Verjee-Van v. Pierce County, No. 49329-2-II, oral
argument (July 6, 2017), at 8 min., 30 seconds (on file with the court).

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use of the property.” Id. at 602. Second, “if the regulation does not implicate fundamental

attributes of ownership, the court will proceed to the next threshold inquiry, analyzing whether

the regulation goes beyond preventing a public harm to producing a public benefit.” Id. at 601.

The court reasoned that “if the regulation either goes beyond preventing a public harm to

producing a public benefit, or infringes upon a fundamental attribute of property ownership,

further takings analysis is necessary.” Id. at 595. “If the regulation does not destroy a

fundamental attribute of ownership and does no more than protect the public health, safety, and

welfare, then the regulation is not subject to a takings challenge.” Robinson v. City of Seattle,

119 Wn.2d 34, 50, 830 P.2d 318 (1992).

       The Vans assert that the County’s conditions on their permit exemption deprive them of

their right to enjoy their property and that they are harmed because “the value of their property is

less than the value of their neighbor[], Neil Borgert.” Br. of Appellant at 21-22. In considering

this assertion, we note that if the Vans associate the lack of enjoyment of their property with the

absence of a pier, the County’s conditions on the Vans’ permit exemption do not forbid the Vans

from constructing a pier, but only one that violates certain conditions. Therefore, the Vans may

still construct and enjoy a pier on their property. Additionally, the right to enjoy one’s property

is not unlimited. Division One of this court has explained that “[p]roperty owners do not have a

right to use and enjoy their property so as to create a nuisance or interfere with the general

welfare of the community” In re Property Located at 14255 53rd Ave., S., Tukwila, King

County, Washington, 120 Wn. App. 737, 748, 86 P.3d 222 (2004).

       In this case, the Vans have not satisfied either of the threshold inquiries under Guimont.

Turning to the first threshold inquiry, the Vans make no argument that the County’s decision has


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somehow interfered with their rights to possess their property, dispose of their property or

exclude others from it. In addition, the Vans provide no citation to the record to demonstrate the

effect of this regulatory requirement on the value of their property. Importantly, even if the Vans

had provided evidence of an economic harm, the first threshold inquiry under Guimont asks

whether the regulation denies the owner the right to make some economically viable use of the

property. Guimont, 121 Wn.2d at 601; see also Lucas v. South Carolina Coastal County, 505

U.S. 1003, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992). Thus, in order to meet the first prong of

the Guimont threshold analysis under a theory of economic harm, the Vans must demonstrate

that the regulatory requirement “destroy[s] all economically viable use[s]” of their property.

Jones v. King County, 74 Wn. App. 467, 478, 874 P.2d 853 (1994). At oral argument, the Vans

conceded that the challenged regulation did not deprive them of all reasonable economic use of

their property. Wash. Court of Appeals, Verjee-Van v. Pierce County, No. 49329-2-II, oral

argument (July 6, 2017), at 10 min, 45 seconds (on file with the court). Thus, the Vans have

failed to make the first threshold showing.

       As to the second prong of the Guimont threshold analysis, the record demonstrates that

the regulation at issue is intended to promote public safety and welfare. At the hearing before

the Examiner in the administrative appeal AA9-15, Erkkinen testified that the 20-foot separation

requirement was imposed to allow for adequate ingress, egress, and mooring at both the Vans’

and Borgert piers. The concern for sufficient clearance permitting ingress and egress serves

public safety by avoiding collisions between watercraft. Similarly, Erkinnen’s comments

regarding mooring touch upon general welfare concerns: allowing both property owners to

enjoy full use of their structures. Therefore, we hold that the Vans have not established either


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prong of the Guimont threshold analysis, and consequently the Vans’ regulatory taking claim

fails.

                                        IV. ATTORNEY FEES

         The County, Borgert, and the Abercrombies request an award of reasonable attorney fees

and costs on appeal as the prevailing parties. We hold that they are entitled to that award.

         Under RCW 4.84.370, a prevailing party on appeal of a land use decision is entitled to an

award of reasonable attorney fees and costs if that party was the prevailing or substantially

prevailing party at the administrative level and in all prior judicial proceedings. In this case, the

County prevailed before the Examiner and in superior court by defending its conditional permit

exemption. Therefore, we hold that the County is entitled to an award of reasonable attorney

fees and costs as the prevailing party on appeal.

         Further, Borgert and the Abercrombies, as joint respondents, prevailed on the issue of

whether the doctrine of finality applies to the Borgert pier at each stage of the litigation. See CP

at 230. Our Supreme Court has explained that “[a] ‘prevailing party’ is any party that received

some judgment in its favor.” Guillen v. Contreras, 169 Wn.2d 769, 775, 238 P.3d 1168 (2010).

The court further reasoned that “[i]f neither party completely prevails, the court must decide

which, if either substantially prevailed,” based on “the extent of the relief afforded [to] the

parties.” Id. (citing Riss v. Angel, 131 Wn.2d 612, 663-64, 934 P.2d 669 (1997)). Therefore,

because Borgert and the Abercrombies prevailed on the issue of finality, we hold that they are

also entitled to an award of reasonable attorney fees and costs as prevailing parties on appeal.




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No. 49329-2-II
(Linked w/ No. 48947-3-II

                                        CONCLUSION

        We affirm the superior court and award reasonable attorney fees and costs on appeal to

the County, Borgert, and the Abercrombies.

        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.



                                                    Bjorgen, C.J.
 We concur:



 Melnick, J.




 Sutton, J.




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