           IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

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MICHAEL DURLAND, KATHLEEN                                                           -C      m
FENNELL, and DEER HARBOR                         No. 67429-3-                       x*»
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BOATWORKS,                                                                          ro
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                     Appellants,                                                    x**>
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                                                 ORDER GRANTING MOTION              ——
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      v.                                         TO PUBLISH OPINION                 ro
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SAN JUAN COUNTY, WES
HEINMILLER, and ALAN STAMEISEN,

                     Respondents.

      Appellants, Michael Durland, Kathleen Fennell, and Deer Harbor Boatworks

(collectively, Durland) moved this Courtto publish, in part, the unpublished decision filed

in this matter on October 29, 2012 and the respondents San Juan County, Wes

Heinmiller, and Alan Stameisen filed an answer to the motion to publish.

      A majority of the panel has determined the motion to publish should be granted.

       Now, therefore, it is hereby

       IT IS ORDERED

      That the appellants' motion to publish the opinion is granted.

       DATED this ^ ^ clay of 'JJOo^rch^                        2013.

                                      FOR THE PANEL:




                                         Ujx\     MS.
                                       esiding Judge
                                               Judc
     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON


MICHAEL DURLAND, KATHLEEN
FENNELL, and DEER HARBOR                       No. 67429-3-1
BOATWORKS,

                    Appellants,                DIVISION ONE




SAN JUAN COUNTY, WES                               PUBLISHED OPINION
HEINMILLER, and ALAN STAMEISEN,

                    Respondents.               FILED: October 29. 2012

                                                                             __     _l£
      Spearman, A.C.J. — Under the Land Use Petition Act, chapter 36.70Co

RCW (LUPA), a petition challenging a land use decision must be filed within & -=2
days of the issuance of the land use decision. Furthermore, a party may not -±      ~p

collaterally challenge a land use decision for which the appeal period has pa@ed§:~
through a challenge to a subsequent land use decision. The main question

presented in this appeal is whether compliance plans between respondent San

Juan County and respondents Wesley Heinmiller and Alan Stameisen (Heinmiller

and Stameisen referred to collectively as "Heinmiller") were "land use decisions"

under LUPA. If they were, the appellants, Michael Durland, Kathleen Fennel, and
Deer Harbor Boatworks (collectively, "Durland"), are barred from raising certain

issues in their LUPA petition because they did not bring a LUPA petition

challenging the compliance plans within 21 days. Other issues on appeal and
cross-appeal are whether the County properly calculated the pitch for a proposed
No. 67429-3-1/2



roof on Heinmiller's barn; whether the County properly calculated the "living area"

of an alternative dwelling unit (ADU) constructed inside the barn; and whether the

superior court erred in awarding statutory costs to Durland.

        We hold that the compliance plans in this case were not land use

decisions because they were not final determinations that left nothing open to

further dispute. We also hold that while the County did not err in calculating roof

pitch because the relevant code provision did not specify how to measure pitch,

the County did err in calculating living area because the relevant code provisions

were not ambiguous and did not allow for exclusion of areas with a ceiling height

below five feet. We find no abuse of discretion in the award of statutory costs to

Durland.

                                              FACTS

        Durland owns property in Deer Harbor on Orcas Island, in San Juan

County, which is currently used as a boat yard and marina. Heinmiller's

predecessor-in-interest, William G. Smith, owned the property adjacent to and

south of the Durland property ("Heinmiller property"). In 1981, the County issued

a building permit for a storage barn to Smith. The permit approved a barn that

was to be built ten feet from the property line shared with the Durland property.1
A barn was constructed that year. In 1990, Durland sought a conditional use

permit and a shoreline permit. A property line survey revealed that the barn on


        1San Juan County Resolution No. 224, in effect at that time, required the barn to be at
least ten feet away from the property line.
No. 67429-3-1/3



the Heinmiller property was in fact located only 1.4 feet from the property line. To

address this issue, Durland and Smith executed a "Boundary Line Agreement

and Easement" that prevented Durland from building within 20feet of the barn.2
       Around 1995, Heinmiller purchased the property from Smith. In 1997, he

converted a portion of the barn to an ADU but did not secure any building or

shoreline permits for this work, in violation of San Juan County Code (SJCC)

requirements. In 2008, Heinmiller filed an application for an upland conditional

use permit seeking authorization to use the ADU as a vacation rental unit.

Because of the application, the County became aware of the ADU conversion. In

February 2008, the County issued a "notice of correction" to Heinmiller, requiring

the ADU to be demolished.3

        Heinmiller negotiated with the County regarding the notice of correction.

The County agreed to allow him to seek after-the-fact permits for the ADU before
requiring demolition. Accordingly, on April 25, 2008, Heinmiller and the County
executed an agreed compliance plan ("compliance plan"). The compliance plan
included a section titled "Correction of Violations and Compliance Schedule" that

outlined what actions were necessary to bring the property into compliance with


        2The agreement established a common boundary line and, because the new line did not
correct the barn's location with respect to setback requirements, created a 20-foot-wide
"easement" (actually a restrictive covenant) on Durland's property that terminated upon the
removal or destruction of the barn. Durland agreed to the restrictive covenant because he saw a
benefit from the barn, which provided a buffer between his industrial property and any residential
uses on the far side of the barn. He did not, however, want the barn to be used for residential
purposes for fear of conflicts with the industrial use of his property.
        3The notice of correction is not in the record. The County hearing examiner's opinion
indicates that before the compliance plans were entered into, the County required the ADU to be
destroyed.
                                                 3
No. 67429-3-1/4



the SJCC. It also stated, in the "Background" section, that the County recognized

that the private restrictive covenant brought the barn into conformance with the

ten-foot setback requirement that applied when the barn was constructed.

       One year later, on April 28, 2009, the County and Heinmiller executed a

supplemental agreed compliance plan ("supplemental compliance plan"; both
plans will be referred to collectively as "compliance plans"). The supplemental
compliance plan stated that Heinmiller could avoid the need for a shoreline
substantial development permit and a conditional use permit if certain steps were

taken, including reducing the height of the barn to 16 feet4 Heinmiller planned to
reduce the height of the barn by reconfiguring the peak ofthe gable roof to create

a flat portion.

        On June 4, 2009, Durland filed an administrative appeal of the

supplemental compliance plan with the County. In a June 8, 2009 letter to
Durland, the county planning director wrote:

        I write to inform you that there is no administrative appeal process
        for a neighbor to challenge a Compliance Plan or Amended
        Compliance Plan. A Compliance Plan is a code enforcement tool
        that is available to the Administrator to assure compliance with the
        County Code and is authorized by SJCC 18.100.040(d). Code
        Enforcement is a matter between the County and the offender and
        is not subject to administrative appeal by a neighbor.

Clerk's Papers (CP) at 3-4. On August 13, 2009, the County hearing examiner
dismissed Durland's appeal on the basis that it was filed one day late.



        4SJCC 18.50.330(E) exempts certain structures from shoreline permitting requirements if
the structure is no taller than 16 feet.
                                              4
No. 67429-3-1/5



       Heinmiller applied for a building permit, change-of-use permit, and ADU

permit as contemplated by the compliance plans.5 The County approved the
permits on November 23 and 24, 2009. On December 11, Durland filed an

administrative appeal challenging the permits. He raised the following issues:

       1. Whether the permits are consistent with regulations regarding
       land developed in violation of local regulations.
       2. Whether the barn complies with setback requirements.
       3. Whether the barn complies with building width limitations for
       properties with shoreline frontage.
       4. Whether the barn complies with waterfront setback requirements
       for accessory structures.
       5. Whether the appropriate shoreline approvals, such as a
       shoreline conditional use permit, substantial development permit, or
       shoreline exemption have been obtained.
       6. Whether the ADU complies with the living area limitation of 1,000
       square feet.
       7. Whether the barn complies with roof pitch requirements in the
       Deer Harbor Hamlet Plan.

See CP at 68-69.

       The County hearing examiner considered Durland's appeal at an

evidentiary hearing on May 6, 2010. The hearing examiner determined that the
compliance plans were land use decisions subject to LUPA's requirement that
appeals be filed within 21 days of issuance. He concluded the compliance plans
had resolved certain issues that were now time-barred and could not be raised in

an appeal of the permits. With respect to the ADU permit, however, he concluded

        5Durland contends he actively participated in the County's review process for these three
permits, but his citations to the record do not show participation during the review process. The
record reflects that on October 6, 2007, Durland sent an email to SJC Community Development
and Planning raising various concerns about Heinmiller's ADU application, but this was well
before the date of the compliance plans. Also, in Durland's notice of appeal to the hearing
examiner, he stated that "[appellants have participated in the administrative review process
leading up to issuance of the challenged permits." CP at 68. The record is unclear as to the
nature and extent of Durland's participation in the permit review process.
                                                 5
No. 67429-3-1/6



that the compliance plans "do not substitute for ADU review and approval" and

addressed the living area issue on the merits. He found that the ADU complied

with the 1,000-square-foot living area limit set forth in the SJCC, reasoning that

"living area" did not include spaces where the ceiling height was less than five

feet. As for whether the barn complied with roof pitch requirements, the hearing

examiner concluded:

       As noted in the current version of the Deer Harbor Hamlet Plan
       (adopted 2007), specific regulations for the Deer Harbor area were
       only first put together in 1999, which was well after the building was
       constructed in 1981. The pitch requirement referenced by the
       appellant. . . was adopted in 2007. As a nonconforming use, the
       subsequently enacted Deer Harbor roof pitch requirements do not
       apply.

CP at 32.

       Durland appealed the hearing examiner's decision by filing a LUPA

petition in Skagit County Superior Court on August 13, 2010. The court

concluded that the compliance plans were land use decisions under LUPA and

that Durland's challenge to the permits largely amounted to a collateral attack on

the compliance plans. The court dismissed any issues resolved by the

compliance plans. After a hearing on the merits, the court upheld the hearing

examiner's decision on the roof pitch issue. It reasoned that the SJCC provides

no guidelines for calculating pitch for a variable-pitch roof and that the 4:12 pitch
requirement was susceptible to more than one interpretation, such that deference
would be given to the County's interpretation. The court reversed the hearing
examiner's computation of the ADU's living area, reasoning that the SJCC
No. 67429-3-1/7



definition of "living area" was unambiguous and did not allow for exclusion of

areas with a ceiling height less than five feet. It remanded the ADU permit for

further consideration of that issue and awarded statutory costs to Durland.

        Durland now appeals the superior court's ruling that the issues in the

compliance plans were time-barred under LUPA6 and its ruling as to the barn's
roof pitch. Heinmiller cross-appeals the superior court's ruling regarding the living

area ofthe ADU and the court's award of statutory costs to Durland.7
                                        DISCUSSION

                                     Standard of Review

        LUPA, chapter 36.70C RCW, governs judicial review of land use decisions

in Washington. RCW 36.70C.030. When conducting judicial review under LUPA,

this court sits in the same position as the superior court. Griffin v. Thurston

County. 165 Wn.2d 50, 54-55, 196 P.3d 141 (2008). We review the

administrative record before the hearing examiner, the "local jurisdiction's body

        6Durland also contends the hearing examiner erred in concluding that his appeal was
time-barred under LUPA because the "decision is outside the authority or jurisdiction of the body
or officer making the decision." RCW 36.70C.130(1)(e). We agree. The hearing examiner
determined that the compliance plan agreements were a land use decision under LUPA and that
Durland's appeal was filed more than 21 days after the compliance plan agreements were
executed. Thus, the hearing examiner concluded the appeal was time-barred under RCW
36.70C.040(3). Butthe hearing examiner's authority is limited to that granted by the creating
body. Chausee v. Snohomish County Council. 38 Wn. App. 630, 636, 689 P.2d 1084 (1984).
Here, SJCC 2.22.030 limits the hearing examiner's authority to consideration of "land use
regulations as provided by ordinance." SJCC 2.22.100 sets forth the specific land use regulations
the hearing examiner is authorized to consider. Whether a decision is a land use decision under
LUPA is not among them. The resolution of this issue is reserved to the superior court.
Nonetheless, as Durland concedes, the issue is properly before us because the issue was
considered by the superior court.

        7The County submits briefing in supportof Heinmiller's position as to the LUPA issue but
takes no position regarding the roof pitch or living area issues. For convenience, and because
they make substantially the same arguments, the County's arguments will be attributed to
Heinmiller when discussing the LUPA issue.
                                                7
No. 67429-3-1/8



or officer with the highest level of authority to make the determination ... ." RCW

36.70C.020(2). Relief is granted only ifthe party seeking relief establishes that

the hearing examiner erred under one of the six standards in RCW

36.70C. 130(1). The following standards are relevant to our determination of the

LUPA issue, roof pitch issue, and living area issue:

       (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;[8]
       (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;

RCW 36.70C.130(1). An appellate court"must give substantial deference to both
the legal and factual determinations ofa hearing examiner as the local authority
with expertise in land use regulations." Lanzce G. Douglass. Inc. v. City of
Spokane Valley. 154 Wn. App. 408, 415-16, 225 P.3d 448 (2010), rev. denied.

169 Wn.2d 1014 (2010) (citation omitted).




        8 Under the substantial evidence standard, "there must be a sufficient quantum of
evidence in the record to persuade a reasonable person that the declared premise is true."
Wenatchee Sportsmen Ass'n v. Chelan County. 141 Wn.2d 169, 176, 4 P.3d 123 (2000).
                                                8
No. 67429-3-1/9



                       Compliance Plans as Land Use Decisions

       The first issue is whether the compliance plans between the County and

Heinmiller were land use decisions under LUPA. A "land use decision" is defined

under LUPA as:

       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, on:

       (a) An application for a project permit or other governmental
       approval required by law before real property may be improved,
       developed, modified, sold, transferred, or used, but excluding
       applications for permits or approvals to use, vacate, or transfer
       streets, parks, and similar types of public property; excluding
       applications for legislative approvals such as area-wide rezones
       and annexations; and excluding applications for business licenses;

       (b) An interpretative or declaratory decision regarding the
       application to a specific property of zoning or other ordinances or
       rules regulating the improvement, development, modification,
           maintenance, or use of real property; and

       (c) The enforcement by a local jurisdiction of ordinances regulating
       the improvement, development, modification, maintenance, or use
       of real property. . . .

RCW 36.70C.020(2) (Emphasis added).

       A petition to review a land use decision is barred under LUPA unless it is

filed within 21 days of the issuance of the land use decision.9 RCW
36.70C.040(3). Furthermore, a party may not collaterally challenge a land use
decision for which the appeal period has passed via a challenge to a subsequent



       9 It is not clear when the compliance plans were "issued" within the meaning of RCW
36.70C.040(4). However, the parties do notdispute that the 21-day appeal period for the
compliance plans, if such a period applied, had passed before Durland filed his appeal ofthe
permits.
                                               9
No. 67429-3-1/10



land use decision. Habitat Watch v. Skagit County. 155 Wn.2d 397, 410-11, 120

P.3d 56 (2005) (challenge to grading permit amounted to untimely collateral

attack of earlier special use permit, where authorization for grading permit came

from special use permit, whose appeal period had passed, and where sole basis

for challenging grading permit was that extensions of special use permit were

improper); Wenatchee Sportsmen Ass'n v. Chelan County. 141 Wn.2d 169, 180-

82, 4 P.3d 123 (2000) (challenge to county's approval of plat application based

on challenge to density of plat was untimely collateral attack where petitioner had

not challenged rezone decision establishing allowed density for project two years

earlier). Because LUPA prevents a court from reviewing an untimely petition, a

land use decision becomes valid once the opportunity to challenge has passed.

Wenatchee Sportsmen Ass'n, 141 Wn.2d at 181.

       A land use decision is "final" for purposes of LUPA when it "leaves nothing

open to further dispute" and "sets at rest [the] cause of action between the
parties." Samuel's Furniture. Inc. v. State. Dep't of Ecology. 147 Wn.2d 440, 452,
54 P.3d 1194 (2002). Afinal decision "'concludes the action by resolving the

plaintiffs entitlement to the requested relief.'" |d. (quoting Purse Seine Vessel
Owners v. State. 92 Wn. App. 381, 387, 966 P.2d 928 (1998)). In contrast, an

interlocutory decision intervenes between the commencement and the end ofa
suit and decides some point or matter, but is not a final decision of the whole

controversy. ]d.




                                         10
No. 67429-3-1/11



       Furthermore, a final land use decision should memorialize the terms of the

decision, not simply reference them, in a tangible and accessible way so that a

diligent citizen may "know whether the decision is objectionable or, if it is,

whether there is a viable basis for a challenge." Vogel v. City of Richland. 161

Wn. App. 770, 779-80, 255 P.3d 805 (2011). It must be clear to a reviewing court

what decision is presented for review. Id. at 780. Mere decisions about the

process to be followed in making a land use decision are not final land use

decisions. ]d. at 778-79. And where a local jurisdiction sets forth a process for

making a land use decision, the land use decision is not final unless the

jurisdiction has complied with the process and the entire process is complete.

See Heller Bldg.. LLC (HBO v. City of Bellevue, 147 Wn. App. 46, 55-56, 194

P.3d 264 (2008) (stop work order not final land use decision where it did not

contain information required by city code, which would have informed landowner

HBL of substance of violations in a way that would allow HBL to correct violation

or make informed decision whether to challenge city's decision); WCHS. Inc. v.

CitvofLvnnwood. 120 Wn. App. 668, 679-80, 86 P.3d 1169 (2004) (letters from

city to landowner not final land use decisions because, among other reasons,

they did not comply with city's own code requirements for distributing notice of

decisions).




                                          11
No. 67429-3-1/12



       Applying these principles, we hold that the compliance plans in this case

were not a "final determination," and therefore not land use decisions.10 First, the

plans outline at least two possible courses of action and do not "set at rest" the

cause of action, Samuel's Furniture. 147 Wn.2d at 452. What Heinmiller sought

in negotiating with the County over the notice of correction was to maintain the

ADU. But the compliance plans do not guarantee that he could do so. To

illustrate, the "Correction of Violations and Compliance Schedule" section of the

compliance plan provides, in full:

        The parties agree that the owners are required to take the following
        action to bring the property into compliance with the County Code:

            1. Immediately cease all use of the storage structure for
            habitable purposes.
            2. Submit a complete demolition permit for removal of the deck
            and carport no later than May 1, 2008. Remove the deck and
            carport no later than 45 days after issuance of the demolition
            permit.[11]
            3. The owners will take EITHER action (a) or (b) as follows:
               a. Submit necessary permit applications for conversion of a
               portion of the storage structure to an ADU or bunkhouse. The
               first step is submittal of complete Shoreline Substantial
               Development Permit and Conditional Use Permit applications,
               which will be submitted no later than June 21, 2008. The
               owners' next step is as follows:
                  i. If the SDP and CUP are approved, the owners will
                     submit complete applications for all other necessary land
                     use approvals such as building permits within 45 days of
                     the approval of the SDP and CUP. The owners will take

         10 That the compliance plans were not a land use decision as to the setback issue
specifically is consistent with the fact that, when Durland requested a document showing a "Land
Use Decision by the County recognizing the barn as a non-conforming structure," which
Heinmiller now asserts the compliance plans did, the deputy prosecuting attorney responded in
July 2008, "No land use decision 'recognized' the barn as a non-conforming structure or changed
it to a non-conforming structure.'" CP at 180.

        11 The demolition of the deck, carport, and other alterations are not at issue in this case.
                                                 12
No. 67429-3-1/13



                   action to promptly complete construction and finalize the
                   permits.
                   ii. If either the SDP or CUP are denied, the owners will
                 either (A): obtain a demolition permit for removal of the
                 converted space inside the storage structure within 60
                 days and restore the structure to its permitted
                 configuration for storage no later than 45 days from
                 demolition permit issuance; or (B) identify an alternative
                 method of compliance within 60 days with the agreement
                 of the County,
             b. Submit a complete demolition permit application for
             removal of the converted space inside the storage structure
             no later than June 21, 2008, and restore the structure to its
             permitted configuration for storage no later than 45 days
             from demolition permit issuance.
          4. Submit complete permit applications no later than June 21,
          2008 for the installation or removal of any other alterations of
          the storage structure which have occurred without the
          necessary building, electrical, mechanical, or plumbing permits
          and which are not addressed by a permit application submitted
          to comply with item (2) or (3) above. These alterations include
          but are not limited to the addition of exterior siding, extended
          eaves, heat, plumbing, and windows.

CP at 81-82. As this language shows, the compliance plan did not determine the

course of action between Heinmiller and the County with certainty. As far as such

language indicated, there was nothing for Durland to appeal at that time.

Significantly, one of the courses of action contemplated by the compliance
plans-demolition of the ADU-was entirely satisfactory to Durland. It would have

been premature, then, for him to bring a LUPA petition appealing the compliance

plans when it was not apparent that Heinmiller would proceed in an objectionable
manner. Furthermore, under section 3(a)(ii)(B), the compliance plan

contemplated the possibility of an unknown course of action within 60 days if the

shoreline permit or conditional use permitwere denied. Requiring Durland to

                                          13
No. 67429-3-1/14



appeal the compliance plans (and what was purportedly decided by them) within

21 days, when Heinmiller had 60 days to pursue a third course not even

described by them, would be illogical.

       Next, the compliance plan did not leave "nothing open to further dispute."

Samuel's Furniture, 147 Wn.2d at 452. When Heinmiller approached the County

a year after the compliance plan to propose a change, they agreed to a

supplemental compliance plan. This confirms that the initial plan was not a final

determination of Heinmiller's rights or obligations. The supplemental plan

proposed "an alternative method of legalizing the ADU." CP at 83. Specifically,

Heinmiller proposed obtaining a building permit that would allow remodeling a

portion of the barn to an ADU and reducing the height of the barn to 16 feet,

which "would not require either a shoreline substantial development permit or a

conditional use permit." Id. The supplemental plan stated:

       The changes to the Agreed Compliance Plan are as follows:

       The parties agree that the owners may take the following action
       as an alternative to Correction of Violations and Compliance
       Schedule Action #3 as listed in the Agreed Compliance Plan
       dated April 25, 2008:

       Submit a complete building permit application by July 6, 2009,
       for the remodeling and conversion of a portion of the storage
       structure to an ADU and reduction in the height of the structure
       to no more than 16 feet above existing grade as measured
       along a plumb line at any point. Height shall be determined in
       accordance with the interpretation entitled "Height of Accessory
       Use Shoreline Structures" issued by Rene Beliveau on
       September 18, 2008. The owners will take action to promptly
       complete construction and finalize all permits to obtain legal
       occupancy of the structure.

                                         14
No. 67429-3-1/15



CP at 84. The supplemental plan concluded, "All provisions in the underlying

Agreement shall remain in effect except as expressly modified by this

supplement." Id. The compliance plan was modified by the supplemental

compliance plan one year later and was evidently not final and binding on

Heinmiller.

       Heinmiller asserts that the determination of whether the permits were

authorized by the SJCC was made in the earlier compliance plans and could not

be attacked collaterally when the permits were issued. But the compliance plans

did not determine that the permits would be issued; they only stated that if the

permits were obtained, the property would be brought into compliance with the
SJCC. They implicitly acknowledge that the permits might not be granted and

that one of the permits that might be issued is a demolition permit.

        Heinmiller also contends that permitting collateral challenges to

compliance plans would eliminate their usefulness as code enforcement tools
because they would provide no certainty, eliminating their benefits.12 But the
plans in this case do not provide the certainty that Heinmiller claims; they do not



        12 Heinmiller points out that encouraging the voluntary correction ofviolations is a primary
intent behind enforcement actions under SJCC 18.100.010. Development of compliance plans is
one method for achieving compliance with the SJCC. If such a plan is developed, the SJCC
states that no further code enforcement action will be taken:

        Following a notice of violation, the administrator and person in violation may
        develop a mutually agreeable compliance plan. The compliance plan shall
        establish a reasonable and specifictime frame for compliance. No further
        action will be taken if the terms of the compliance plan are met. If no
        compliance plan is established, enforcement of the violation will proceed.
SJCC 18.100.040(D).
                                                 15
No. 67429-3-1/16



state that any of the named permits will be granted or that he will ultimately be

able to maintain the ADU.13

        Heinmiller further argues that the compliance plans are a final

determination because the County complied with the process for compliance

plans, the compliance plans contained the elements required by the SJCC, and

the process was complete because there was no administrative appeal available.

While these may be necessary to find a final determination under Heller BIdg and

WCHS. these cases do not say that these circumstances are sufficient for a final

decision.

        We hold the compliance plans were not land use decisions and Durland's

failure to file a LUPA petition regarding the compliance plans did not bar him from

raising certain issues in his LUPA petition regarding the permits.14
                    Roofs Compliance with SJCC Pitch Requirement

        Durland contends the hearing examiner erroneously approved a building

permit because the modification to the barn's roof would violate roof pitch

requirements. He argues the roof pitch regulation is unambiguous and the


        13 We do not suggest that a compliance plan can never be a final determination. We hold
only that the compliance plans in this case do not bear the indicia of a final land use decision as
described in Samuel's Furniture, 147 Wn.2d at 452.

        14 We decline Durland's invitation to decide the setback issue, which was not reached by
the hearing examiner or the superior court. This issue involves Durland's argument that the
County could not issue permits forthe ADU conversion because the barn was an illegal structure
by virtue of the fact that itdid not comply with the ten-foot setback requirement under the original
1981 building permitor then-existing SJCC provisions. He requests this court to rule that (1) the
barn was built illegally; (2) the illegality was not cured by the private restrictive covenant; and (3)
therefore, permits could not be issued to modify the barn until the illegality was cured, under
SJCC 18.100.030(F) and SJCC 18.100.070(D). This issue should be considered by the hearing
examiner with the other issues on remand.
                                                  16
No. 67429-3-1/17



County had no authority to construe it. He contends the County's approach in

excluding the flat portion of the roof by measuring from the outside edge of the

flat portion of the roof (not from the center of the roof) was not authorized by the

SJCC.

        We hold that the result reached by the hearing examiner on this issue was

not an erroneous interpretation of the law or a clearly erroneous application of

the law to the facts, and was supported by evidence that is substantial when

viewed in light ofthe whole record before the court.15 See RCW 36.70C. 130(1).
Though we agree with Durland that the roof pitch requirement under the code

provision is unambiguous, stating a minimum pitch of 4:12, the provision sets

forth no guidelines or methodology for calculating pitch.16 Nor does it require a
particular type of roof. The roof pitch provision is ambiguous as to how to

measure the pitch of the proposed roof in this case and is subject to more than

one interpretation, such that we give the County's interpretation deference. See

Bostain v. Food Express. Inc.. 159 Wn.2d 700, 716, 153 P.3d 846 (2007) (courts

accord deference to agency's interpretation where (1) agency is charged with

administration and enforcement of statute, (2) statute is ambiguous, and (3)

statute falls within agency's special expertise); Citizens For A Safe Neighborhood

        15 The hearing examiner decided this issue by ruling that the Deer Harbor roof pitch
requirements adopted in 2007 did not apply to the building because itwas constructed in 1981
and was therefore a grandfathered nonconforming use. The superior court affirmed, but on the
ground that the County's interpretation would be given deference. We agree with the superior
court and affirm the hearing examiner's ruling on that basis

        16 SJCC 18.30.350(H) provides: Roof Pitch. The minimum permitted roof pitch in Deer
Harbor is 4:12. The relevant portion of SJCC 18.30.320, Table 3.9, states: "Minimum Roof Pitch
4:12." A flat roof has a pitch of 0:12.
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No. 67429-3-1/18



v. City of Seattle. 67 Wn. App. 436, 440, 836 P.2d 235 (1992) "It is a well

established rule of statutory construction that considerable judicial deference

should be given to the construction of an ordinance by those officials charged

with its enforcement.") (quoting Keller v. Bellingham. 92 Wn.2d 726, 731, 600

P.2d 1276 (1979)).

        Here, the County determined that the pitch of the proposed roof measured

4:12. Associate planner Lee McEnery performed calculations using the building

plans and a scale. She measured from the outside edge of the flat area of the

proposed roof. Testimony presented to the hearing examiner was that the

modification would be consistent with the purpose behind the roof pitch

regulations. McEnery stated that the purpose behind the Deer Harbor roof pitch

requirements is visual. She pointed to SJCC 18.10.020, which provides that one

of the purposes of the Title 18 regulations is aesthetic: "To provide for the

economic, social, and aesthetic advantages of orderly development through

harmonious groupings of compatible and complementary land uses and the

application of appropriate development standards . . ." SJCC 18.10.020(B)(4).

McEnery explained the dominant visual impression from the ground would be

that ofa roof with a 4:12 pitch.17
        Durland points to no authority to show that roof pitch for the type of roof

proposed by Heinmiller must be measured differently, i.e., from the center-most


         17 Architectural designer Bonnie Ward also testified that the modified roof would have a
4:12 pitch despite having a flattened portion on top, as the flat portion would constitute less than
ten percent of the roofand would not be noticeable from the exterior.
                                                 18
No. 67429-3-1/19



point of the roof. He presented no expert testimony to the hearing examiner as to

why the proposed roof cannot properly be determined to have a 4:12 pitch.

               ADU's Compliance with SJCC "Living Area" Restriction

       Heinmiller cross-appeals the superior court's ruling that the County

erroneously computed the ADU's living area where the SJCC definition of "living

area" was unambiguous and did not allow exclusion of areas with a ceiling height

less than five feet. This issue involves SJCC 18.40.240(F) and 18.20.120. The

former provides that an ADU "permitted subsequent to the adoption of this

section shall not exceed 1,000 square feet in living area as defined in SJCC

18.20.120." The latter defines "Living Area" as "the internal space measured from

the interior of the exterior walls, excluding decks, overhangs, unenclosed

porches or unheated enclosed porches, and the stairwell on one level of a two-

story structure."

       Here, the County found that Heinmiller's ADU was 955 square feet in

living area. The County's calculation excluded areas where the ceiling height was
less than five feet.18 San Juan County Community Development and Planning

Department director and chief building official Rene Beliveau testified before the

hearing examiner that because the SJCC was silent as to measuring living area

in a structure with a sloped roof, the County consulted the International

Residential Code (IRC). The hearing examiner agreed with the County,



        18 Implicit in the parties' dispute is the conclusion that, had those areas been included in
calculating the size of the ADU, the square-foot limit would not have been met.
                                                 19
No. 67429-3-1/23



absurd results canon of statutory construction is applied sparingly. Five Corners

Family Farmers v. State. 173 Wn.2d 296, 311, 268 P.3d 892 (2011) (citing Duke

v. Bovd. 133 Wn.2d 80, 87, 942 P.2d 351 (1997)). Moreover, it is not clear that

such an interpretation leads to absurd results. A property owner chooses where

and how to build an ADU; it does not seem absurd to expect him or her to be

aware of SJCC requirements when planning an ADU. Heinmiller also argues that

Durland's interpretation would lead to the absurd result that all interior space of

any structure in which an ADU is situated would count toward living area, in

addition to the square footage of the ADU itself. He points out that the SJCC

envisions that an ADU may be only part of a structure, such as a garage. See

SJCC 18.20.010 (ADU may be "internal, attached or detached"). That issue is not

presented here. Moreover, the SJCC 18.40.240(F) definition presumes that the

living area of the ADU is being measured ("An accessory dwelling unit. . . shall

not exceed . . .), not the entire building in which the ADU is located.

       Deference to the County's interpretation of its code depends on whether

the provision is ambiguous; absent ambiguity, there is no need for the County's

expertise in construing its regulations. Cowiche Canyon Conservancy v. Boslev.

118 Wn.2d 801, 813-14, 828 P.2d 549 (1992). The SJCC provisions limiting an

ADU's living area are not ambiguous.

                    Superior Court's Award of Costs to Durland

       Heinmiller seeks reversal of the superior court's award of statutory costs

to Durland under RCW 4.84.010. This court reviews an award of attorney's fees

                                         23
No. 67429-3-1/24



and costs for abuse of discretion. Ernst Home Center. Inc. v. Sato. 80 Wn. App.

473, 490, 910 P.2d 486 (1996). "The determination as to who substantially

prevails turns on the substance of the relief which is accorded the parties."

Marine Enterprises. Inc. v. Security Pacific Trading Corp.. 50 Wn. App. 768, 772,

750 P.2d 1290 (1988). The prevailing party need not prevail on the entire claim.

Silverdale Hotel Assocs. v. Lomas & Nettleton Co.. 36 Wn. App. 762, 774, 677

P.2d 773 (1984).

       Heinmiller contends Durland was not the prevailing party because he

prevailed only on the living area issue. He contends that the court's ruling,

furthermore, did not destroy his ability to maintain the ADU because he can

pursue planning revisions with the County and reconfigure the ADU's size.

       We conclude the superior court did not abuse its discretion. Durland

succeeded in the sense that he halted Heinmiller's plan to maintain the ADU by

invalidating the ADU permit. The superior court ruled that the ADU was not in

conformance with the SJCC because of the living area and remanded the matter

to establish compliance with SJCC 18.20.120. At this point it is uncertain whether

Heinmiller will be able to maintain the ADU.

               Heinmiller's Request for Attorney's Fees on Appeal

       Heinmiller seeks attorney's fees on appeal under RCW 4.84.370, which in

a land use decision "allows reasonable attorneys fees to a party who prevails or

substantially prevails at the local government level, the superior court level, and

before the court of appeals or the supreme court." Julian v. City of Vancouver.

                                         24
No. 67429-3-1/25



161 Wn. App. 614, 631-32, 255 P.3d 763 (2011). We deny the request.

Heinmiller did not substantially prevail before the superior court and he does not

substantially prevail on appeal.

                                     Conclusion


       We affirm the superior court's rulings on the roof pitch and living area

issues, as well as its award of statutory costs to Durland, but reverse its ruling

that the compliance plans in this case were land use decisions under LUPA. We

remand to the hearing examiner for consideration of the issues previously

determined to be barred along with any other issues yet to be determined.

       Reversed in part, affirmed in part, and remanded to hearing examiner for

further proceedings.




                                                       •e^yy<- /1,6,0,
WE CONCUR:
                                                   f
                                                ^;yHOptrty


                                          25
No. 67429-3-1/20



reasoning that interpreting SJCC 18.20.120 to include such areas would lead to

absurd or strained results.

       Durland argues that SJCC 18.20.120 and 18.20.240(F) are unambiguous

and do not permit the subject areas to be excluded. Heinmiller argues that RCW

19.27.031 imposes a mandatory duty on the County to apply provisions of the

IRC in considering whether to issue a building permit. He contends that

disregarding IRC provisions would lead to absurd results and that the County's

interpretation is entitled to deference.

       We agree with Durland and hold that SJCC 18.20.120 does not allow the

exclusion of areas with a ceiling height under five feet from the living area

measurement. Initially, the parties agree that the state building code generally

applies to the County and its interpretation of the SJCC. See RCW 19.27.031

("Except as otherwise provided in this chapter," International Building Code and

IRC "shall be in effect in all counties"), SJCC 18.20.005(B) (SJCC definitions

referencing UBC intended to mirror UBC definitions), SJCC 15.04.050(B) (IRC

adopted "as iffully set out in this article"). For several reasons, however, IRC

provisions do not apply in interpreting SJCC 18.40.240(F) or SJCC 18.20.120.

       First, the SJCC provisions are unambiguous. SJCC 18.40.240(F) limits the

size of an ADU to 1,000 square feet of "living area," as that term is defined in

SJCC 18.20.120. SJCC 18.20.120 sets forth areas to exclude from the living

area calculation (decks, etc.), none of which is "areas with a ceiling height of five

feet or less." This unambiguous language cannot be supplemented by other

                                           20
No. 67429-3-1/21



definitions. Unambiguous statutes are not subject to interpretation; one looks at

the plain language of the statute without considering outside sources. State v.

Delgado. 148 Wn.2d 723, 727, 63 P.3d 792 (2003). Furthermore, when the

legislature has defined a term by statute, that definition controls its interpretation.

State v. Watson. 146 Wn.2d 947, 954, 51 P.3d 66 (2002). Words cannot be

added to an unambiguous statute when the legislative body has not included that

language. Davis v. State Dep't of Licensing. 137 Wn.2d 957, 964, 977 P.2d 554

(1999).

       Second, the SJCC provisions at issue do not reference state law

definitions. SJCC 18.20.005(B) provides:

       All definitions which reference the Revised Code of Washington
       (RCW), Washington Administrative Code (WAC), and Uniform
       Building Code (UBC) are intended to mirror the definitions in these
       codes at the effective date of the Unified Development Code (this
       code) or as amended. If the definition in this code conflicts with a
       definition under state law or regulation, the state definition shall
       control over this definition.


But neither SJCC 18.40.240(F) nor SJCC 18.20.120 references any definition in

the RCW, WAC, or UBC, and the definition of "living area" under SJCC

18.20.120 does not conflict with any state law definitions.

       Furthermore, while Heinmiller argues that the IRC and SJCC provisions

reference the same subject matter and should be harmonized, we disagree that

they reference the same subject matter. The IRC provisions that Heinmiller




                                          21
No. 67429-3-1/22



contends were properly considered by the County in excluding the subject areas

are IRC 305.1 (2003) and IRC 202 (2003).19 IRC 305.1 states, in pertinent part:
       Habitable rooms, hallways, corridors, bathrooms, toilet rooms,
       laundry rooms and basements shall have a ceiling height of not
       less than 7 feet (2134 mm).
       The required height shall be measured from the finish floor to the
       lowest projection from the ceiling.
              Exceptions:


       3. Not more than 50 percent of the required floor area of a room or
       space is permitted to have a sloped ceiling less than 7 feet (2134
       mm) in height with no portion of the required floor area less than 5
       feet (1524 mm) in height.

IRC 202 defines "habitable space" as: "A space in a building for living, sleeping,

eating or cooking. Bathrooms, toilet rooms, closets, halls, storage or utility

spaces and similar areas are not considered habitable spaces." IRC 202 defines

"living space" as "[sjpace within a dwelling unit utilized for living, sleeping, eating,

cooking, bathing, washing and sanitation purposes." None of these IRC

provisions pertain to the specific matter of measuring the living area of an ADU

for the purpose of limiting the ADU's size. Nor do they use the same terminology;

where the SJCC provision limits an ADU's "living area," the IRC definitions refer

to "habitable space" and "living space."

       Finally, Heinmiller contends applying a literal interpretation of SJCC

18.20.120, without reference to the IRC, would lead to absurd results because it

would allow for the inclusion of areas that have no utility as living space. But the



       19 These provisions are part of the "2003 International Residential Code for One- and
Two-Family Dwellings." CP at 170-71.
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