                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                      December 11, 2018




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 KIMBERLYN DOTSON, individual,                                     No. 50860-5-II

                               Appellant,

        v.

 PIERCE COUNTY, acting through its                           UNPUBLISHED OPINION
 Planning and Land Services Department, a
 municipal corporation,

                               Respondent.

       JOHANSON, J. — Kimberlyn Dotson appeals the Pierce County Hearing Examiner’s

(Hearing Examiner) decision upholding the notice and order to correct (NOTC) issued by Pierce

County’s Department of Planning and Land Services (PALS). The NOTC notified Dotson that

she was in violation of various provisions of Title 18E of the Pierce County Code (PCC). The

NOTC alleged that Dotson maintained an unapproved paddock, shelter, and horse within a

proscribed buffer zone for the regulated fish and wildlife species and habitat conservation area on

her property. Dotson argues that the Hearing Examiner erred in admitting evidence that the County

obtained in violation of the PCC and her constitutional right to privacy. She argues that without

the challenged evidence there is not substantial evidence that she violated Title 18E PCC. She

also argues that the Hearing Examiner’s decision violated her constitutional right to procedural
No. 50860-5-II


due process and that there is not substantial evidence supporting the Hearing Examiner’s

conclusion that Dotson breached a binding settlement agreement with the County. We affirm.

                                              FACTS

                                     I. CITIZEN’S COMPLAINT

       This appeal arises out of a citizen’s complaint that the Department of Ecology (DOE)

received on September 29, 2015, alleging unpermitted, regulated activities within a fish and

wildlife habitat area on Dotson’s property. The citizen-initiated complaint alleged that Dotson

built a fence, corral, and feeder for animals and shoveled dirt into a creek so its land is no longer

a creek. The DOE forwarded the citizen-initiated complaint to PALS.

                              II. DOTSON PROPERTY INVESTIGATION

       Mary Van Haren, an enforcement environmental biologist for PALS, investigated the

citizen-initiated complaint during a visit to Dotson’s property on October 15. Van Haren initially

viewed Dotson’s property from 296th Street East, a Pierce County public road. During the site

visit, from the public road, Van Haren confirmed the presence on Dotson’s property of a culvert

and natural water, which is a fish and wildlife habitat area indicator. From the public road, Dotson

could not see any improvements on Dotson’s property with the exception of a portion of the fence.

       Van Haren then walked on 55th Avenue East, a private road that either abuts Dotson’s west

property line or is constructed within the western portion of Dotson’s property. The private road

was neither gated nor posted with “No Trespassing” signs. From the private road, Van Haren

observed the fenced area and horse stall. Van Haren also observed a low topical drainage in the

culvert area on the private road and a continuation of the drainage south through the paddock on

Dotson’s property.


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No. 50860-5-II


       Van Haren relied upon her observations at the culverts beneath the public and private roads,

as well as a view into Dotson’s property from the private road, to note the location of the fenced

area and stall within 165 feet of the drainage or stream. On a subsequent visit, Van Haren noted

that the creek continued to flow naturally, and therefore the citizen-initiated complaint of shoveling

dirt into the creek did not appear to have occurred or impacted the flow.

       To determine whether the location of the paddock and stall violated the PCC, Van Haren

relied in part on a habitat assessment for an adjacent, upstream property conducted in 2007. The

2007 habitat assessment classified the stream flowing through Dotson’s property and the adjacent,

upstream property as an F1 stream type. Van Haren testified about the 2007 habitat assessment,

but it was not admitted into evidence.

       Van Haren also utilized aerial photographs, orthophotographs, planimetrics, and

geographic information system (GIS) photographs to confirm Dotson’s violation of the PCC.

                                     III. COMPLIANCE LETTER

       On November 25, Van Haren sent Dotson a compliance letter explaining that the location

of the paddock and stall violated Title 18 PCC,1 specifically former PCC 18E.10.050 (2006). Van

Haren stated that she saw the violation from adjacent roads. The compliance letter stated that

Dotson expressed a willingness to relocate the paddock and stall to an area located approximately

100 feet from the stream which was still within the stream buffer. Because the stream had a 150-

foot buffer, the letter notified Dotson that she had to submit the following application materials to

PALS by March 1, 2016 for an approval of the relocation: a resource management application



1
 The regulation of potential and actual fish and wildlife habitat areas are governed by chapters
18E.10 and 18E.40 PCC.

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No. 50860-5-II


checklist, a master application, a farm management plan,2 and a $650 fee for a habitat assessment

of her property. Dotson did not appeal the compliance letter.

       Dotson submitted all of the materials and the fee as requested in the compliance letter. In

Dotson’s master application, which she signed, she acknowledged the PCC violation of having a

horse in a fish and wildlife habitat. Dotson also attached an aerial photo of part of her property.

In the farm management plan, Dotson acknowledged that (1) the horse and paddock were within

a critical area buffer, (2) an unnamed seasonal tributary to S. Fork Muck Creek was on the property,

and (3) she had to remove the horse and shelter from the stream corridor and its buffer by March

1, 2016.

       Dotson and the Pierce Conservation District (PCD) signed an agreement authorizing a

grant from DOE to cover the cost of relocation.          The agreement, which Dotson signed,

acknowledged that the paddock, shelter, and horse were on an F1 seasonal stream located on

Dotson’s property.

       After Dotson submitted the materials and the fee requested in the compliance letter, PALS

sent to Dotson a regulated fish and wildlife species and habitat conservation area approval for her

signature. PALS also issued a water-type verification classifying the stream on Dotson’s property

as an F1 stream type.3 The approval and resolution of the violation was contingent on Dotson

signing and recording a “Critical Area/Buffer Notice,” “Conditions of Critical Area Approval,”




2
  A farm management plan is prepared by the Pierce Conservation District as part of the
requirements under former PCC 18E.40.040 (2009).
3
 An F1 stream type includes water courses providing habitats for critical fish species. Former
PCC 18E.40.060 (2006).

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No. 50860-5-II


and the approved site plan that showed the critical areas and buffers located on her property.

Dotson did not sign or record those documents.

                                            IV. NOTC

       On July 8, 2016, Van Haren sent Dotson an NOTC directing Dotson to sign, notarize, and

return the fish and wildlife habitat area approval documents. The NOTC notified Dotson that

PALS would take enforcement actions against her if she did not sign and record the approval on

the title to her property within 30 days.      The NOTC also incorporated the farm resource

management plan.

                                 V. PROCEDURAL BACKGROUND

       Dotson filed a petition for administrative review of the NOTC. PALS denied the petition

because the NOTC was not issued in error. Dotson appealed PALS’ decision to the Hearing

Examiner.

                       A. PUBLIC HEARING AND VAN HAREN’S TESTIMONY

       During the public hearing before the Hearing Examiner, Dotson moved to exclude evidence

of all County materials and actions taken on or after October 15, 2015, because Van Haren “relied

upon aerial and planimetric material” in alleged violation of PCC 18.140.040(B)(5).

Administrative Record Verbatim Report of Proceedings at 44. Dotson also objected to the

admission of any materials obtained from the private road as obtained in violation of Dotson’s

right under the federal and state constitutions to privacy. The Hearing Examiner admitted all of

the challenged evidence for the purpose of the public hearing, noting that he would revisit Dotson’s

objections when making his decision.




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No. 50860-5-II


        Van Haren was the only witness at the public hearing. Van Haren testified to the following

relevant facts.

        Van Haren referenced a copy of the CountyView GIS map after receiving the citizen-

initiated complaint, but before the October 15 site visit. The CountyView GIS map showed a blue

hydro center line on the Dotson property and a potential fish and wildlife habitat in a pinkish gray

translucent area on either side of the hydro center line. Van Haren testified that the blue hydro

center line on the CountyView GIS map originated from the Department of Natural Resources’

(DNR) water typing under WAC 222-16-030 and that the CountyView GIS map is a mapping

source for fish and wildlife habitat areas as enumerated under former PCC 18E.10.140, App.

A(F)(2) (2015). The hydro center lines on CountyView GIS maps include the latest information

for water typing and are continuously updated based on new data.

        From the public road, Van Haren confirmed the presence of the hydro center line and

natural water that is a fish and wildlife indicator. From the private road, Van Haren could see that

the stream went through only the paddock on Dotson’s property. The private road leads to the

driveways of four parcels, but not to Dotson’s property. To Van Haren, the private road appeared

open to members of the public because there were no gates blocking access and no signs near the

entrance indicating that it was not open to travel by members of the public. Van Haren did not

obtain an administrative warrant or consent from any property owners before driving down the

private road. Van Haren confirmed that the presence of the paddock, horse shelter, and horse on

Dotson’s property violated Title 18E PCC based on the CountyView GIS map and site visit.




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No. 50860-5-II


           B. WRITTEN DECISION WITH FINDINGS OF FACT AND CONCLUSIONS OF LAW

       In a written decision, the Hearing Examiner noted that the following relevant exhibits were

submitted and made a part of the record.

              Hearing Ex. # / Letter       Description
              Ex. 1                        PALS’ staff report
              Ex. 2                        Dotson’s application materials
              Ex. 3                        PALS’ decision and documents
              Ex. 4                        NOTC and routing documents
              Ex. 5                        Site information
              Ex. 6                        CountyView GIS web map
              Ex. 7                        Site information
              Ex. A                        Initial report / citizen’s complaint
              Ex. B to H                   E-mails between PALS, DOE, and PCD
              Ex. I                        Site information
              Ex. J                        Intersection photograph
              Ex. K                        Intersection photograph
              Ex. L                        Map showing red lines
              Ex. M                        RESM certified mail information

       The Hearing Examiner entered factual findings substantially similar to the facts laid out

above. However, the Hearing Examiner concluded that Van Haren did not enter Dotson’s parcel.

       The Hearing Examiner also entered relevant conclusions.               The Hearing Examiner

concluded that it had no authority to resolve alleged state and federal constitutional violations

raised by Dotson against the County. However, the Hearing Examiner also denied all of Dotson’s

objections to the entry of allegedly illegally obtained evidence into the record. Without ruling on

the constitutionality of the entry, the Hearing Examiner noted that the private road was neither

gated nor posted with “No Trespassing” signs, and Van Haren did not enter Dotson’s parcel. The

Hearing Examiner also found that Van Haren never entered Dotson’s parcel and therefore did not

personally observe the presence of the stream on the site or the presence of a stream within the

horse paddock area.




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No. 50860-5-II


       The Hearing Examiner also ruled that PCC 18.140.040(B)(5) does not prohibit the use of

aerial photographs, orthophotographs, planimetrics, and GIS photographs to investigate

complaints or violations that are not initiated by the County. Therefore, the County did not violate

the PCC by using aerial photographs, orthophotographs, planimetrics, and GIS photographs in its

investigation of the citizen-initiated complaint against Dotson.

       The County’s reliance on the 2007 habitat assessment for a neighboring parcel was

appropriate for consideration in typing the stream on Dotson’s parcel because there was no

evidence the DNR found it necessary to update its map for the affected stream, as would otherwise

be required under WAC 222-16-030.

       The Hearing Examiner further concluded that Dotson’s parcel is covered by a potential fish

and wildlife habitat conservation area and therefore former PCC 18E.40.020(E) (2005) requires

fish or wildlife habitat conservation area review. The Examiner noted that PCC 18E.40.020(E)

states that potential fish and wildlife habitat conservation areas are depicted on PCC 18E.10.140

Appendix A, subsection G, and that PCC 18E.10.140 Appendix A, subsection F, also sets forth

sources, such as maps and data bases, used as indicators of critical fish or wildlife presence. The

Examiner ruled that the omission of PCC 18E.10.140 Appendix A, subsection F, from PCC

18E.40.020(E), does not void subsection F or other PCC requirements. Additionally, the habitat

assessment that Van Haren prepared and submitted to Dotson, along with the farm management

plan, satisfy the requirements for a habitat assessment set forth in PCC 18E.40.030(B)(2).

       The Hearing Examiner denied Dotson’s appeal, finding that the County showed by a

preponderance of the evidence that (1) a fish and wildlife critical area and buffer exists on Dotson’s

parcel, (2) Dotson conducted unpermitted regulated activities within the critical area and buffer,


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No. 50860-5-II


(3) violations of Title 18E PCC as set forth in the NOTC occurred on Dotson’s parcel, and (4) the

NOTC was appropriate and satisfied all the criteria set forth in the PCC.

        After concluding that the NOTC satisfied the PCC and that the County proved Dotson

violated the PCC, the Hearing Examiner entered conclusions on issues he raised sua sponte. The

Hearing Examiner concluded that Dotson essentially entered into a binding settlement agreement

with the County, which Dotson breached and that PALS issued NOTC in the nature of a specific

performance action to compel Dotson to perform her remaining obligation under the settlement

agreement.

        Dotson filed a Land Use Petition Act (LUPA)4 petition in Thurston County Superior Court.

The superior court affirmed the Hearing Examiner’s decision and denied the petition. This appeal

followed.

                                           ANALYSIS

                                    I. STANDARD OF REVIEW

        The LUPA governs judicial review of Washington land use decisions. HJS Dev., Inc. v.

Pierce County, 148 Wn.2d 451, 467, 61 P.3d 1141 (2003). On review of a superior court’s land

use decision, we stand in the shoes of the superior court and review the administrative decision on

the record before the administrative tribunal—not the superior court record. Satsop Valley

Homeowners Ass’n v. Nw. Rock, Inc., 126 Wn. App. 536, 541, 108 P.3d 1247 (2005). We review

the administrative record and the questions of law de novo to determine whether the facts and law

support the land use decision. Satsop Valley Homeowners Ass’n, 126 Wn. App. at 541.




4
    Ch. 36.70C RCW.

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No. 50860-5-II


       We may grant relief only if the LUPA petitioner has carried the burden of establishing that

one of the standards set forth in RCW 36.70C.130(1) has been met. As relevant here, the standards

are

              (b) [t]he 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;
              ....
              (f) The land use decision violates the constitutional rights of the party
       seeking relief.

RCW 36.70C.130(1). The standards described in subsections (b) and (f) present questions of law

that we review de novo. Phoenix Dev., Inc. v. City of Woodinville, 171 Wn.2d 820, 828, 256 P.3d

1150 (2011). The substantial evidence standard in subsection (c) requires a sufficient quantum of

evidence in the record to persuade a reasonable person that the declared premise is true when

viewed in light of the whole record, after drawing inferences from the evidence in a light most

favorable to the decision by the highest forum exercising fact-finding authority. Phoenix Dev.,

Inc., 171 Wn.2d at 831. Under subsection (d), a finding is clearly erroneous when, although there

is evidence to support it, there is a definite and firm conviction that a mistake has been committed.

Phoenix Dev., Inc., 171 Wn.2d at 829.

                         II. ALLEGED PCC VIOLATIONS BY THE COUNTY

                             A. USE OF THE CHALLENGED EVIDENCE

       Dotson argues that the Hearing Examiner erred when it concluded that (1) PCC

18.140.040(B)(5) does not prohibit the use of aerial photographs, orthophotographs, planimetrics,

and GIS photographs to investigate complaints or violations that are not initiated by the County;

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No. 50860-5-II


and (2) the County did not violate the PCC by using aerial photographs, orthophotographs,

planimetrics, and GIS photographs in its investigation of the citizen-initiated complaint against

Dotson. Dotson argues that the Hearing Examiner should have excluded certain evidence because

the County used it in violation of PCC 18.140.040(B). We disagree.

       PCC 18.140.040(B)(5) provides that “aerial photography, orthophotos, [and] planimetrics

. . . shall not be utilized as proactive enforcement tools to initiate enforcement actions by [PALS]

in pursuit of compliance with the enforcement provisions of [chapter 18.140 PCC].” (Emphasis

added.) Therefore, PALS may use aerial photography, orthophotos, and planimetrics to investigate

citizen-initiated complaints alleging chapter 18.140 PCC violations. See PCC 18.140.040(B)(5).

Such use of the materials enumerated under PCC 18.140.040(B)(5) does not amount to use of those

materials as proactive enforcement tools to initiate enforcement actions.

       We hold that the Hearing Examiner did not err when it concluded that PCC

18.140.040(B)(5) does not prohibit the use of the challenged evidence to investigate complaints or

violations that are not initiated by the County.

                   B. WAS THE CITIZEN’S COMPLAINT AGAINST DOTSON FALSE

       Dotson argues that the Hearing Examiner erred in concluding that the County did not

violate PCC 18.140.025. We reject Dotson’s argument.

       First, contrary to Dotson’s argument, the Hearing Examiner did not conclude that the

County did not violate PCC 18.140.025. Because this is an error-correcting court and the Hearing

Examiner made no ruling whether the County violated PCC 18.140.025, we have nothing to

review. Thus, Dotson’s argument fails.




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No. 50860-5-II


       But even assuming the Hearing Examiner made the alleged conclusion, PCC 18.140.025

provides that (1) “[a]lleged violations will undergo a detailed review by staff for accuracy and

content to ensure against false allegations” and (2) “[n]o enforcement action will be pursued until

such time staff confirms a violation has occurred.” PCC 18.140.025 does not provide that if one

of two allegations in a citizen-initiated complaint is false, the County may not investigate or pursue

an enforcement action based on the remaining allegation.

       Here, the citizen-initiated complaint alleged that Dotson (1) built a fence, corral, and feeder

for animals and (2) shoveled dirt into a creek so its land is no longer a creek. After her first site

visit, Van Haren confirmed that the location of the fenced area and stall violated Title 18 PCC by

referencing the 2007 habitat assessment for the adjacent, upstream property and with aerial

photographs, orthophotographs, planimetrics, and GIS photographs. After a second site visit, Van

Haren noted that the creek continued to flow naturally, and therefore the citizen-initiated complaint

of shoveling dirt into the creek did not appear to have occurred or impacted the flow.

       The County pursued an enforcement action based on only the presence of the paddock,

shelter, and horse on Dotson’s property after it confirmed that Dotson violated various provisions

of Title 18 PCC. The County did not pursue an enforcement action based on the allegation that

Dotson shoveled dirt into the stream on her property. Neither the compliance letter that Van Haren

sent nor the NOTC referred to the second allegation in the citizen-initiated complaint that Van

Haren determined was false on her second visit to Dotson’s property. Because the County did not

pursue the enforcement action against Dotson based on the second, false allegation, Dotson’s

argument based on PCC 18.140.025 is meritless.




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No. 50860-5-II


                      C. ESTABLISHING A FISH AND WILDLIFE HABITAT AREA

1.     RELEVANT ENFORCEMENT ACTION

       Dotson seems to argue that the County lacked substantial evidence of an actual fish and

wildlife habitat area on her property before it sent the compliance letter as she claims is required

under former PCC 18E.10.050(H) and PCC 18E.40.030(B)(2). This argument fails.

       For land use matters, a notice of appeal must be filed with PALS within 14 days of the date

of an administrative official’s decision. Former PCC 1.22.090(B)(1)(a) (2016). A notice of appeal

on an administrative decision must at a minimum, contain, as relevant here, a copy of any decision

or order which is being appealed and a concise statement of the factual and legal basis for the

appeal citing specifically the alleged errors in the administrative official’s decision. Former PCC

1.22.090(C)(2)-(3).

       Here, PALS issued the compliance letter on November 25, 2015 asserting a violation of

Title 18E PCC based on unpermitted activities within a critical area on Dotson’s property. The

compliance letter notified Dotson that she had 14 days to appeal from the decision. The Hearing

Examiner found that Dotson did not appeal the compliance letter, and Dotson does not challenge

that finding.

       Instead, Dotson took steps to comply with the requirement in the compliance letter that she

apply for approval of the unpermitted regulated activities on her property once she relocated the

paddock, shelter, and horse. Dotson submitted all of the materials and the fee as requested in the

compliance letter.




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No. 50860-5-II


          It was not until July 22, 2016, 14 days after PALS issued the NOTC on July 8, 2016, that

Dotson filed a petition for administrative review of the NOTC. Dotson’s notice of appeal requests

review of only the NOTC and not the compliance letter.

          We therefore hold that Dotson’s argument that the County lacked substantial evidence of

an actual fish and wildlife habitat on her property before issuing the compliance letter fails. The

NOTC is the relevant enforcement action because Dotson failed to timely appeal the compliance

letter.

2.        ESTABLISHING AN ACTUAL FISH AND WILDLIFE HABITAT AREA

          Dotson seems to argue that the County lacked substantial evidence that she violated Title

18E PCC because the County established only a potential, rather than actual, fish and wildlife

habitat area. Dotson contends that under chapters 18E.10 and 18E.40 PCC, some evidence the

County relied on to establish the fish and wildlife habitat area is either (1) a mapping source that

indicates only potential, rather than actual, fish and wildlife habitat areas or (2) not explicitly

authorized as a mapping source. Again this argument fails. And to the extent Dotson also argues

that the County lacked substantial evidence of a fish and wildlife habitat before issuing the NOTC,

that argument is also meritless.

          Title 18E PCC applies to “all lands or waters within unincorporated Pierce County that are

designated as critical areas by Pierce County.” Former PCC 18E.10.050(A). More specifically,

chapter 18E.40 PCC covers regulated fish and wildlife species and habitat conservation areas (fish

and wildlife areas) as critical areas. Former PCC 18E.10.050(A); former PCC 18E.40.020(D)-(E).

          The County’s “Fish and Wildlife Habitat Area Maps” identify county-designated fish and

wildlife habitat areas. Former PCC 18E.10.050(G). Former PCC 18E.10.050(H) provides that


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No. 50860-5-II


       [t]he exact boundary of each critical area depicted on the [Fish and Wildlife Habitat
       Area Maps] is approximate and is intended only to provide an indication of the
       presence of a critical area on a particular site. Additional critical areas that have
       not been mapped may be present on a site. The actual presence of a critical area or
       areas and the applicability of [Title 18E PCC] shall be determined based upon the
       classification or categorization criteria and review procedures established for [fish
       and wildlife habitat areas under former PCC 18E.40.020 and PCC 18E.40.030].

(Emphasis added.)

       An actual fish and wildlife habitat area is classified under former PCC

18E.40.020(D)(12)(a) to include, as relevant here, natural waters and adjacent riparian-shoreline

areas (165 feet landward measured from the ordinary high-water mark) such as water bodies

classified by the DNR water-typing classification system under WAC 222-16-030 and -031.

       The DNR water typing classification system under WAC 222-16-030 leads to the

production of DNR “Water Type Reference Maps” that the County may use to identify an actual

county-designated fish and wildlife habitat area on a specific parcel. Former PCC 18E.10.140,

App. A(F)(2). The DNR’s fish habitat water-typing maps are based on a multiparameter, field-

verified GIS logistic regression model designed to identify fish habitat areas and accurately

separate fish habitat streams and non-fish habitat streams. WAC 222-16-030. For example, an F1

stream-type classification by the DNR includes watercourses providing actual habitats for critical

fish species. PCC Table 18E.40.060. Therefore, an F1 stream-type classification establishes that

the DNR has verified that a stream is an actual fish and wildlife habitat area under former PCC

18E.40.020(D)(12)(a). WAC 222-16-030; PCC Table 18E.40.060. The DNR’s fish habitat water-

typing maps must be updated every five years where necessary to better reflect observed, in-field

conditions. WAC 222-16-030.




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No. 50860-5-II


       a.   MAPPING SOURCES INDICATING POTENTIAL,               OR IDENTIFYING      ACTUAL, FISH   AND
WILDLIFE HABITAT AREAS

       Dotson seems to argue that the water-type reference maps authorized as a mapping source

under former PCC 18E.10.140, App. A indicate only potential, rather than actual, fish and wildlife

habitat areas. We disagree.

       The DNR water-type reference maps are explicitly authorized as a mapping source to

identify, and not just indicate, fish and wildlife habitats. Former PCC 18E.10.140, App. A(F)(2).

Therefore, we hold that Dotson’s argument that the DNR water-type reference maps indicate only

potential, rather than actual, fish and wildlife habitat areas is not persuasive.

       b.      MAPPING SOURCES NOT EXPLICITLY AUTHORIZED

       Dotson seems to argue that the County could not use the 2007 habitat assessment for the

adjacent, upstream property because it is not an enumerated mapping source under former PCC

18E.10.140, App. A. Dotson also argues that the F1 stream-type designation in the 2007 habitat

assessment for the adjacent, upstream property was stale or irrelevant to an assessment of her

property.

       It is true that habitat assessments for other parcels are not an enumerated mapping source

under former PCC 18E.10.140, App. A. However, the 2007 habitat assessment included an F1

stream-type DNR classification for the stream flowing immediately from the adjacent, upstream

property through Dotson’s property.         The PCC explicitly authorizes the DNR water-type

classification system as a data source that the County can use to identify and classify water bodies

with verified fish habitat streams. Former PCC 18E.40.020(D)(12)(a); WAC 222-16-030. We

therefore hold that the Hearing Examiner did not err in concluding that the County’s reliance on



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No. 50860-5-II


the 2007 habitat assessment for a neighboring parcel was appropriate for consideration in typing

the stream on Dotson’s parcel.

       Dotson’s additional argument that the 2007 habitat was stale is also not persuasive. WAC

222-16-030 requires that the DNR update its maps only when necessary. We therefore hold that

the Hearing Examiner did not err in concluding that there was no evidence the DNR found it

necessary to update its map for the affected stream after 2007.

       c.      THE COUNTY ESTABLISHED AN ACTUAL FISH AND WILDLIFE HABITAT AREA

       Here, there is substantial evidence that before the County issued the NOTC and at the

hearing before the Hearing Examiner, the County established an actual, rather than potential, fish

and wildlife habitat area. PALS issued a water-type verification classifying the stream on Dotson’s

property as an F1 stream type based on the blue hydro center line on the CountyView GIS map,

which originated from the DNR’s water typing under WAC 222-16-030, its site visit, and the 2007

habitat assessment for the adjacent, upstream property. The hydro center lines on CountyView

GIS maps include the latest information for water typing and are continuously updated based on

new data. The 2007 habitat assessment classified the stream flowing through Dotson’s property

and the adjacent, upstream property as an F1 stream type. The F1 stream-type designation

substantiates the existence of an actual fish and wildlife habitat area on Dotson’s property because

the designation means the DNR identified and verified that the stream was an actual fish habitat

stream. See WAC 222-16-030. Thus, the County had substantial evidence of an actual fish and

wildlife habitat area on Dotson’s property before issuing the NOTC, and the Hearing Examiner

had substantial evidence to support its findings.




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No. 50860-5-II


         In addition, even assuming the Hearing Examiner erred in considering the DNR water-type

reference maps and the 2007 habitat assessment, there is substantial evidence that the County

established an actual fish and wildlife habitat area on Dotson’s property. Before the County issued

the NOTC, Dotson admitted that an actual fish and wildlife habitat area existed on her property in

her signed application materials. Dotson also signed an agreement with the PCD acknowledging

that the paddock, shelter, and horse were on an F1 seasonal stream located on Dotson’s property.

         Based on the foregoing, we hold that substantial evidence supports the Hearing Examiner’s

conclusion that the County showed by a preponderance of the evidence that a fish and wildlife

critical area and buffer exists on Dotson’s parcel.

3.       SHEAR5 AND YOUNG6

         Dotson relies on Shear and the dissent in Young to support her argument that the Hearing

Examiner erred. These authorities are unpersuasive.

         a.     Shear

         Dotson argues that the Hearing Examiner erred in not ruling that the County must first

establish a fish and wildlife habitat area with precision before taking enforcement action under

Title 18E PCC. Dotson relies on Shear, 167 Wn. App. at 563, and the dissent in Young in support.

The County responds that Shear is inapplicable because that case dealt with the King County Code

(KCC).




5
  King County Dep’t of Dev. & Envtl. Servs. v. King County, 167 Wn. App. 561, 273 P.3d 490
(2012), rev’d on other grounds, 177 Wn.2d 636, 305 P.3d 240 (2013) (commonly known as, and
hereinafter, “Shear”).
6
    Young v. Pierce County, 120 Wn. App. 175, 84 P.3d 927 (2004).

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No. 50860-5-II


        In Shear, King County issued a notice of violation of the KCC based upon alleged

unauthorized activities in a wetland and flood hazard critical area. 167 Wn. App. at 563-65. The

hearing examiner in Shear concluded that the unpermitted activities did not occur in a wetland and

flood hazard critical area because the county had not adopted enforceable standards for

determining flood hazard areas. 167 Wn. App. at 563-64, 570-71.

        But Shear is distinguishable. The review process under Shear for flood hazard areas differs

significantly from the review process for fish and wildlife habitat areas under PCC

18E.40.030(B)(2). The review under PCC 18E.40.030(B)(2) is required only if the presence or

location of a potential regulated fish or wildlife habitat area has not been mapped, but may be

present on or adjacent to a site. PCC 18E.40.030(A). Therefore, unlike the KCC review provision

in Shear, review under PCC 18E.40.030(B)(2) is not required if a potential fish and wildlife area

is mapped and established. PCC 18E.40.030(A). Here, before issuing the NOTC, the County

relied on both maps and its site visit to verify the existence of an actual fish and wildlife habitat

area.

        Additionally, unlike the KCC provisions in Shear, the PCC provides that if a potential fish

and wildlife area is unmapped, then PALS must determine whether the site in question is located

within a potential regulated fish or wildlife habitat by either (1) reviewing the Critical Fish and

Wildlife Habitat Area Maps and other source documents for any proposed regulated activity or (2)

conducting a field investigation. PCC 18E.40.030(A)(1)-(2). If the maps, sources, or field

investigation indicates that a site with regulated activity is located within a potential regulated fish

or wildlife habitat area, PALS shall require the submittal of a fish and wildlife application and




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No. 50860-5-II


habitat assessment to determine the actual presence or absence of regulated fish or wildlife species

or habitat. PCC 18E.40.030(A)(3).

       b.      Young

       Dotson relies on a partial dissent by Judge Morgan in Young. Because dissents are not

controlling precedent, we do not consider this argument further. See Rose v. Anderson Hay &

Grain Co., 184 Wn.2d 268, 282, 358 P.3d 1139 (2015) (we will not abandon precedent unless it is

determined to be incorrect and harmful).

                                         D. CONCLUSION

       We hold that the County established the existence of a critical wildlife area before issuing

the NOTC and substantial evidence supports the Hearing Examiner’s conclusion that PALS has

shown by a preponderance of the evidence that a fish and wildlife critical area and buffer exists on

Dotson’s parcel.

                          III. DOTSON’S CONSTITUTIONAL ARGUMENTS

                       A. AUTHORITY TO RULE ON CONSTITUTIONAL ISSUES

       Dotson argues that the Hearing Examiner erred in ruling that he did not have authority to

rule on constitutional issues. We disagree.

       The County’s hearing examiners have statutory authority to issue final decisions on land

use matters including, as relevant here, (1) “[a]ppeals from any final administrative order or

decision related to the administration, interpretation or enforcement of the Pierce County Code”

and (2) “any order or decision of the Planning Department under the Critical Areas and Natural

Resource Lands Regulations.” PCC 1.22.080(B)(1)(g), (p). As such, a hearing examiner’s

“determination is limited to an administrative proceeding to determine whether or not a particular


                                                20
No. 50860-5-II


piece of property is subject to a county land ordinance.” Chaussee v. Snohomish Cty. Council, 38

Wn. App. 630, 638, 689 P.2d 1084 (1984).

        The hearing examiner reviewing a PALS order or decision may not rule on constitutional

issues. See Exendine v. City of Sammamish, 127 Wn. App. 574, 586-87, 113 P.3d 494 (2005);

Open Door Baptist Church v. Clark County, 140 Wn.2d 143, 146, 995 P.2d 33 (2000). An

administrative agency has no authority to determine whether the statute it administers is facially

constitutional or constitutional as applied. See Exendine, 127 Wn. App. at 586-87 (city council

has no power to enforce, interpret, or rule on constitutional issues and therefore cannot delegate

such power to hearing examiner). Only the judiciary may resolve constitutional questions. See

Prisk v. Poulsbo, 46 Wn. App. 793, 798, 732 P.2d 1013 (1987) (when the issue raised is the

constitutionality of the law sought to be enforced, only the courts have the power to decide).

Accordingly, the Hearing Examiner properly declined to rule on constitutional issues.

                                 B. PROCEDURAL DUE PROCESS

        Dotson argues that the County denied her procedural due process rights as a property owner

to be heard at a meaningful time on the 2007 habitat assessment. She contends that she has a

property interest in the “ability to engage in mundane gardening activities and boarding her pet at

home without erroneous penalties being assessed.” Opening Br. of Appellant at 35. This argument

is rejected.

1.      LEGAL PRINCIPLES

        We review constitutional issues in administrative appeals de novo. Phoenix Dev., Inc., 171

Wn.2d at 828. The Fourteenth Amendment prohibits states from depriving any person of life,

liberty, or property without due process of law. U.S. CONST. amend. XIV, § 1. “When a state


                                                21
No. 50860-5-II


seeks to deprive a person of a protected interest, procedural due process requires that an individual

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

deprivation.” Amunrud v. Bd. of Appeals, 158 Wn.2d 208, 216, 143 P.3d 571 (2006). To determine

whether existing procedures adequately safeguard a protected property interest, courts consider

“(1) the potentially affected interest; (2) the risk of an erroneous deprivation of that interest through

the challenged procedures, and probable value of additional procedural safeguards; and (3) the

government’s interest, including the potential burden of additional procedures.” City of Bellevue

v. Lee, 166 Wn.2d 581, 585, 210 P.3d 1011 (2009).

2.      NOTICE AND A MEANINGFUL OPPORTUNITY TO BE HEARD

        Even assuming without deciding that Dotson has shown a requisite property interest and a

risk of erroneous deprivation, her due process argument still fails. Dotson argues that the County

denied her procedural due process rights as a property owner to be heard at a meaningful time on

the 2007 habitat assessment. We disagree.

        Neither LUPA nor the PCC provides for individualized notice of fish and wildlife habitat

area assessments of a specific parcel to the owners of adjacent parcels. See Asche v. Bloomquist,

132 Wn. App. 784, 796, 133 P.3d 475 (2006); PCC 18E.40.030(B)(3). Adjacent property owners

are not entitled to notice of fish and wildlife habitat area review applications, public hearings, or

final decisions under PCC 18.80.020.7

        Here, however, Dotson received due process: she was given notice of the violation and

had an opportunity to be heard before the Hearing Examiner. At the hearing, Dotson had the




7
  PCC 18.80.020 provides a matrix of the notice required for applications, public hearings, and any
final decisions under Title 18E PCC. See PCC 18E.10.070(C), (F)(1)(a).
                                               22
No. 50860-5-II


opportunity to challenge the 2007 assessment and its applicability to her property. Thus, Dotson

has failed to show that she did not receive the required notice and opportunity to be heard. We

hold that the Hearing Examiner’s decision did not violate Dotson’s constitutional right to

procedural due process.

             C. RIGHT TO PRIVACY AND FREEDOM FROM UNREASONABLE SEARCHES

       Dotson next contends that the County obtained evidence in violation of her federal and

state constitutional rights to privacy. We do not reach this argument because even without

considering the challenged evidence, there is sufficient evidence to support the Hearing

Examiner’s findings and conclusions regarding the violation.

       Even if we exclude Van Haren’s observations from the private road and PALS’ staff report

Ex. 5A (photo of the paddock, stall, and horse taken from the private road), there is still substantial

evidence that Dotson violated Title 18E PCC. The citizen-initiated complaint stated that Dotson

built a fence, corral, and feeder for animals on her property. Before the October 15 site visit, Van

Haren utilized aerial photographs, orthophotographs, planimetrics, and GIS photographs that she

obtained before the site visit to confirm Dotson’s violation of the PCC. During the site visit, from

the public road, Van Haren confirmed the presence of the hydro center line, a culvert, and natural

water that is a fish and wildlife habitat area indicator. Further, the 2007 habitat assessment

classified the stream running through Dotson’s property and the adjacent, upstream property as an

F1 stream type.

       Finally, in Dotson’s signed application materials, she acknowledged (1) the PCC violation

of having a horse in a fish and wildlife habitat on her property, (2) the horse and paddock were

within a critical area buffer, and (3) an unnamed seasonal tributary to S. Fork Muck Creek was on


                                                  23
No. 50860-5-II


the property. Dotson also signed an agreement with the PCD acknowledging that the paddock,

shelter, and horse were on an F1 seasonal stream located on Dotson’s property. Dotson also

attached an aerial photo of part of her property to her application.

       Thus, even excluding the challenged evidence, substantial evidence supports the Hearing

Examiner’s findings and conclusions. Thus, we need not address Dotson’s right to privacy

arguments.

                                  IV. SETTLEMENT AGREEMENT

       Dotson argues that the parties never finalized a settlement agreement and, in the alternative,

the County did not prove that Dotson knowingly entered into a settlement agreement. We agree

with Dotson. There is no evidence that the parties finalized a binding settlement agreement.

Dotson never signed and returned the approval documents. There is not substantial evidence

supporting the Hearing Examiner’s conclusion that Dotson breached such an agreement.

Accordingly, the Hearing Examiner erred in this regard.

                                         V. CONCLUSION

       In sum, Dotson primarily argues that without the evidence she challenges, there was not

substantial evidence that she violated Title 18E PCC. We disagree.

       Here, Dotson argues that there was not substantial evidence of the violation if the evidence

she challenged was inadmissible. As stated above, even excluding all of the challenged evidence,




                                                 24
No. 50860-5-II


we hold that Dotson has failed to prove that the Hearing Examiner’s decision that she violated

Title 18E PCC lacked substantial admissible evidence. Accordingly, the Hearing Examiner did

not err.

                                         VI. ATTORNEY FEES

           Dotson requests attorney fees and costs. The County also requests costs and fees in the

event it prevails under RCW 4.84.370(2) and Bellevue Farm Owners Association v. Shorelines

Hearings Board, 100 Wn. App. 341, 365-66, 997 P.2d 380 (2000).

           RCW 4.84.370(1)(b) provides that reasonable attorney fees and costs shall be awarded to

the prevailing party or substantially prevailing party on appeal of a decision by a county on a land

use approval or decision if the prevailing party on appeal was the prevailing party or substantially

prevailing party in all prior judicial proceedings. See also Bellevue Farm Owners Ass’n, 100 Wn.

App. at 365-66 (“RCW 4.84.370 allows attorney fees and costs to the prevailing parties if they

prevailed in all prior judicial proceedings.”).

           RCW 4.84.370(2) provides that “[i]n addition to the prevailing party under subsection (1)

of this section, the county, city, or town whose decision is on appeal is considered a prevailing

party if its decision is upheld at superior court and on appeal.”

           Because Dotson is not the prevailing party, her request for costs and fees is denied. And

under RCW 4.84.370(2), because the County prevails on appeal, we award the County reasonable

costs and fees




                                                  25
No. 50860-5-II


        We affirm.

        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.



                                                    JOHANSON, J.
 We concur:



 WORSWICK, P.J.




 BJORGEN, J.




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