    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

LIND BROTHERS CONSTRUCTION,
LLC, a Washington limited liability              No. 67877-9-1
company,                                        (consolidated with No. 67973-2-1)

                     Respondent,                 DIVISION ONE

             v.                                  UNPUBLISHED OPINION


CITY OF BELLINGHAM, a Washington
municipal corporation,
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                                                                                                o
                     Appellant,                                                     <=•   wo


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              and
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RESPONSIBLE DEVELOPMENT, a
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Washington nonprofit corporation,
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                     Intervenor,                                                    CO    o-~
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and PETER FRYE, an individual,
                                                 FILED: April 8, 2013
                     Appellant.


       Grosse, J. — The city of Bellingham's (City) denial of a lot line adjustment is

proper when the proposed adjustment fails to meet the four criteria required for a lot line

adjustment approval under Bellingham Municipal Code (BMC) 18.10.020(B). Here, the

record supports the Hearing Examiner's determination that a builder's lot line

adjustment proposal did not meet three of these requirements because it did not meet

minimum density requirements, further infringed on the City's Land Use Development

Ordinance's setback requirements, and did not improve the function and utility of the

existing lots. Thus, the Hearing Examiner's decision to affirm the City's denial of the lot
line adjustment was proper and the superior court's reversal of the Hearing Examiner's
ruling was error. Accordingly, we reverse the superior court.
No. 67877-9-1


                                         FACTS

      Lind Brothers Construction, LLC (Lind) sought to develop property it owns in

Bellingham. The property consists of two lots located between two streets, Star Court

to the north and Harrison Street to the south. The boundary between the lots runs north

to south with both lots abutting Star Court and Harrison Street.         Both streets are

unimproved rights-of-way.

      The lots are in an area zoned as single family residential with a 20,000-foot

minimum lot size. One lot was approximately 8368 square feet and the other was 5578

square feet.    Because the lots did not meet the 20,000-foot minimum zoning

requirement, Lind applied for lot line adjustments permit to obtain approval for the

development of two single-family residences on the property. The permit application

proposed to alter the boundary to an east/west orientation, with one lot (proposed Lot A)
abutting only Harrison Street to the south and the other lot (proposed Lot B) abutting
Star Court to the north with a 20-foot wide pipestem along the easterly side of Lot A that

extends to Harrison Street.

      The lots and abutting rights-of-way contained regulated wetlands. Because the

development proposed by Lind included impacts to the wetlands and required buffer
areas, Lind also applied for wetland/stream permit.       Lind's proposal located septic
drainfields within the wetland and buffer areas and in the access portion of one lot within

the wetland. The permit application proposed onsite and offsite mitigation for these

impacts.

       Lind filed the lot line adjustment and wetland/stream permit applications with the
City on December 5, 2005, in compliance with the City's Wetland Stream Ordinance,
No. 67877-9-1


former chapter 16.50 BMC. The next day, December 6, 2005, the City's Critical Areas

Ordinance, chapter 16.55 BMC, took effect and replaced the Wetland Stream

Ordinance.   The City processed Lind's wetland/stream permit application under the

former ordinance.

      The City determined that Lind's applications lacked adequate information to

evaluate the proposal for its consistency with the City's development standards and its

potential environmental impacts. The City noted that Lind's applications did not include

any requests for variances from the City's development or subdivision standards. As a

result, the City made repeated requests of Lind for more information.

       On January 10, 2006, the City notified Lind that its applications did not contain

enough information to prepare a Notice of Application or a State Environmental Policy

Act (SEPA) determination and requested that it "[pjrovide a detailed SEPA checklist for

the entire project, including road construction, lot development, utilities, and stormwater

management (if required by the Public Works Dept.)" On February 16, 2006, the City

notified Lind that it would review the wetland/stream permit application concurrently with

the lot line adjustment application and that further review of the lot line adjustment

application would continue after staff completed a preliminary environmental review.

       On October 10, 2006, City Planners Kim Weil and Kathy Bell met with Lind's

owner, John Lind, and its wetland consultant, biologist Vikki Jackson. They discussed

zoning and wetland setbacks, and siting of the septic system.              The City staff
recommended that Jackson and a qualified engineer work on a potential variance

package.

       On March 29, 2007, the City made a second request for the SEPA checklist and
No. 67877-9-1


also requested verification of the Harrison Street right-of-way width and center line, a

copy of the Whatcom County Health Department septic permit allowing two septic

systems or a plan to connect to the City sewer service, an engineering analysis showing

construction feasibility of the road, a preliminary stormwater plan, a fire truck turnaround

plan, and plans for fully abutting public water and sewer, and a minimum standard

street.


          On December 5, 2008, Lind's engineer provided the City with a complete SEPA

checklist and detailed information about Lind's development proposal.             Lind also

provided a new wetland mitigation plan. On February 27, 2009, the City requested that

Lind provide a SEPA mailing list and fees for the SEPA checklist. On May 8, 2009, Lind

supplied a SEPA mailing list to the City and paid its SEPA fee. On May 22, 2009, a

Notice of Application for the wetland/stream permit was sent to those on the mailing list

and the City received back comments on the application.

          On June 12, 2009, City Planner Weil sent Lind a letter stating that the City had

completed the project and environmental analysis of the lot line adjustment and

wetland/stream permit applications and prepared a list of conditions for a SEPA

Mitigated Determination of Non-Significance (MDNS) as required by WAC 197-11-350.
The letter further requested that Lind meet with Weil and Bell to discuss the conditions,

which required better protection of the wetlands, verification that development setbacks
will be met, and other conditions that address impacts they believed had not been

mitigated adequately. Lind did not respond to this request to meet.

          On June 27, 2009, the City issued the MDNS for Lind's proposal, which was

subject to a 14-day public comment period.           During this time, the City accepted
No. 67877-9-1


comments from the public raising the issue of whether the wetland on the property was

a mature forested wetland that would be classified as a Category I wetland requiring a

100-foot buffer.      On August 7, 2009, Weil e-mailed John Lind about the citizens'

concerns and advised that he could have a field analysis done to determine if the area

met the criteria for a mature forested wetland or the City could revise the MDNS to add

a condition for a tree assessment to be done. Lind did not respond. On August 28,

2009, the City issued a revised MDNS that addressed the categorization of the wetland

as a mature forested wetland. On January 13, 2010, the City denied Lind's applications

for lot line adjustment and wetland/stream permit.

       Lind appealed both the initial MDNS and the revised MDNS and the City's

denials of the lot adjustment and wetland/stream permits to the City Hearing Examiner.

The Hearing Examiner affirmed the City's decisions denying the permits. Lind then filed

an appeal in Whatcom Superior Court under the Land Use Protection Act (LUPA),

seeking reversal of the Hearing Examiner's decision. On October 10, 2011, the trial

court reversed the Hearing Examiner's decision and ordered that the City grant the lot

line adjustment. The trial court further ordered that the wetland/stream permit and

revised MDNS be remanded, and the City staff issue a wetland/stream permit

consistent with the court's decision. The court also remanded to the Hearing Examiner

to issue a decision regarding Lind's appeal of the conditions in the revised MDNS. The

City appeals from that reversal. Also joining the appeal is Peter Frye, a neighbor of the

property at issue.1




1Frye essentially repeats the same arguments raised in the City's appeal.
                                            5
No. 67877-9-1


                                        ANALYSIS

      In reviewing the superior court's decision on a LUPA appeal, this court stands in

the shoes of the superior court and reviews the Hearing Examiner's decision on the

record before the Hearing Examiner. The party who filed the LUPA appeal bears the

burden of proof and must establish:


      (a) The body or officer that made the land use decision engaged in
   unlawful procedure or failed to follow a prescribed process, unless the error
   was harmless;

       (b) The land use decision is an erroneous interpretation of the law, after
   allowing for such deference as is due the construction of a law by a local
   jurisdiction with expertise;

      (c) The land use decision is not supported by evidence that is substantial
   when viewed in light of the whole record before the court;

      (d) The land use decision is a clearly erroneous application of the law to
   the facts;

       (e) The land use decision is outside the authority or jurisdiction of the body
   or officer making the decision; or

       (f) The land use decision violates the constitutional rights of the party
   seeking relief.*21

      Standards (a), (b), (e) and (f) present questions of law that are reviewed de novo,

but under (b) the reviewing court also gives deference to the Hearing Examiner's
construction of local land use regulations based on her specialized knowledge and

expertise.3     Standard (c) involves factual determinations that are reviewed for




2RCW36.70C.130(1).
3 Cinoular Wireless. LLC v. Thurston County. 131 Wn. App. 756, 768, 129 P.3d 300
(2006); Citv of Federal Way v. Town &Country Real Estate, LLC, 161 Wn. App. 17, 37,
252 P.3d 382 (2011).
                                             6
No. 67877-9-1


supporting substantial evidence.4 The reviewing court considers all ofthe evidence and
reasonable inferences in the light most favorable to the party who prevailed in the

highest forum that exercised fact-finding authority.5
      The Bellingham Municipal Code (BMC) contains provisions governing the

approval of lot line adjustments. BMC 18.08.265 defines a lot line adjustment as:

       [A] revision made for the purpose of adjusting boundary lines which does
       not create any additional lot, tract, parcel, site or division nor create any
       lot, tract, parcel, site or division which contains insufficient area and
       dimension to meet minimum requirements for width and area for a building
       site.


BMC 18.10.020(B) provides that in order for the City to approve a lot line adjustment,

the following must be established:

       1. No new lots are created;
       2. Each parcel as proposed meets minimum lot standards as specified in
          Chapter 18.36, or that each parcel if already less than the required
           minimum is not further reduced as a result of the proposed lot line
           adjustment;
       3. The lot line adjustment does not further infringe on any applicable
           section of the Land Use Development Ordinance; and
       4. The lot line adjustment improves the overall function and utility of the
           existing lots.

       The City denied the lot line adjustment permit based on the failure to comply with

three out of these four criteria (2, 3, and 4). The decision was issued by the Director of

the City's Department of Planning and further concluded that the wetland/stream permit

was denied because it relied on a specific layout that does not meet the minimum

requirements of chapter 18.10 BMC.

       The Hearing Examiner affirmed this decision, concluding that the lot line

adjustment proposal failed to meet three of the four criteria specified in BMC

4 Cinaular Wireless. 131 Wn. App. at 768.
5 Cinaular Wireless, 131 Wn. App. at 768.
No. 67877-9-1


18.10.020(B), noting that all four requirements must be met for approval of a lot line

adjustment.     She concluded that it did not meet the requirement of BMC

18.10.020(B)(2) because the proposed lots were less than the minimum site area of

20,000 square feet required by the zoning designation for that area and the line

adjustment proposal further reduces the site area of each of the lots than currently

exists, noting that the pipestem portion of one of the lots must be excluded in

determining the area under BMC 18.08.245. The Hearing Examiner further concluded

that she lacked authority to consider additional options submitted by Lind because they

were not included in any of the applications before its denial and all proposals must be

first be submitted for administrative approval by the Department Director.

      The Hearing Examiner also concluded that Lind's lot line adjustment proposal

did not meet the requirement of BMC 18.10.020(B)(3) that it not infringe on the Land

Use Development Ordinance because it "seeks to modify an existing lot that has

sufficient dimensions to comply with the front yard setback requirements of the Land

Use Development Ordinance, BMC 20.30.040(F), creating a lot that cannot comply with

these requirements." The Hearing Examiner further concluded that the proposal did not

meet the requirement of BMC 18.10.020(B)(4) that it improve the overall function and

utility of the existing lots because dedication of additional right-of-way to provide a

standard 60-foot right-of-way reduces the functional size of proposed Lot A by up to 30

feet in depth and that this, combined with the application of setback requirements to Lot

A, leaves it without function and utility. The Hearing Examiner also concluded that

function and utility was diminished because the proposal creates one unbuildable lot

and another that will require substantial impacts to a wetland and buffer area for


                                            8
No. 67877-9-1


development.

      The trial court reversed, issuing only the following ruling without entering any

findings and conclusions:

      ORDERED that the Hearing Examiner's decision denying the lot line
      adjustment is reversed, and the City shall therefore grant the lot line
      adjustment.

      ORDERED that the wetland/stream permit and revised MDNS is
      remanded, and the City staff shall issue a wetland/stream permit
      consistent with the court's decision and the Hearing Examiner shall issue
      a decision regarding Petitioner's appeal of the conditions in the revised
      MDNS.

A. Minimum Density Requirement

      The City first contends that the superior court erred by reversing the Hearing

Examiner's ruling because Lind's proposal failed to meet the minimum density

requirement of BMC 18.10.020(B)(2).       The City argues that the Hearing Examiner

correctly excluded the pipestem area from the area calculation, resulting in a lot size

that did not meet the minimum density requirement. Lind argues that the pipestem area

is not excluded from the lot area for purposes of satisfying the minimum density

requirement of BMC 18.10.020. We disagree.

      The City relies on the definition of "lot area" provided in BMC 18.08.245:

      "Lot area" means the total horizontal area within the boundary of the lot
      lines of a parcel and expressed in terms of square feet or acres. For
      purposes of determining the area in a "pipestem lot," the area shall be
      defined as the square footage of the lot exclusive of the pipestem portion
       of the lot.

Lind argues that the term "lot area" is specified in other sections of BMC Title 18, but it
is not referenced in the applicable ordinance, BMC 18.10.020(B)(2), which only

references "parcel," stating that "each parcel" may not be further reduced as a result of
No. 67877-9-1


the lot line adjustment. Thus, Lind contends this provision must be interpreted to mean

only that the adjusted lots cannot be reduced from the original size without regard to

whether there is a pipestem.

       But as the City counters, using the definition of "lot area" to determine whether a

parcel's area is further reduced as a result of a proposed lot line adjustment is

consistent with the lot line adjustment provisions. "Lot line adjustment" is defined as

       a revision made for the purpose of adjusting boundary lines which does
       not create any additional lot, tract, parcel, site or division nor create any
       lot, tract, parcel, site or division which contains insufficient area and
       dimension to meet minimum requirements for width and area for a building
       site.[6]

"Lot" is defined as

       a fractional part of subdivided lands having fixed boundaries being of
       sufficient area and dimension to meet minimum zoning requirements for
       width and area. "Lot" includes tracts or parcels of land.1^
Accordingly, for purposes of meeting the minimum density requirement of BMC

18.10.020(B)(2), the area calculation excludes the pipestem area.

       Lind further contends that BMC 18.36.020 exempts smaller non-conforming lots

from any site area requirements. Lind cites BMC 18.36.020(A), which provides:

       All lots shall be of sufficient size to meet the site area requirements
       specified within the area's land use designation under "density" found
       within the applicable Neighborhood Plan in which the property is located;
       provided, however, that this minimum shall not be required in the following
       instances:

                3. Lot line adjustments pursuant to Section 18.10.010 for lots
                presently having less site area than the required minimum lot size.

The City agrees that existing lots that are smaller than the minimum site area


6 BMC 18.08.265.
7 BMC 18.08.240


                                             10
No. 67877-9-1


requirements are not subject to the area requirements of BMC 18.36.020, but correctly

notes that such lots are addressed by BMC 18.10.020(B)(2), which requires that such

lots are not further reduced in size by a lot line adjustment proposal. Here, excluding

the proposed pipestem area, the lots are further reduced in size.

      Thus, Lind has failed to show that the lot line adjustment proposal meets the

minimum density requirement of BMC 18.10.020(B)(2).              Because the ordinance

provides that all four requirements must be met for approval of a lot line adjustment, the

Hearing Examiner properly affirmed the City's decision to deny the lot line adjustment

permit based on failure to comply with this requirement alone. Accordingly, the superior

court erred by reversing the Hearing Examiner's decision.        Although we need only

determine that one requirement of BMC 18.10.020(B) was not met to warrant denial of a

permit, we also conclude that the other requirements were met.

B. Further Infringement of Land Use Development Ordinance

       The Hearing Examiner concluded that Lind's proposal fails to satisfy the criteria

of BMC 18.10.020(B)(3) because it creates a lot that cannot comply with the Land Use

Development Ordinance's setback requirements. As stated in Conclusion of Law 6:

       The proposed lot line adjustment would result in further infringement of the
       provisions of the Land Use Development Ordinance. As currently
       configured the existing lots have a depth of approximately 110 feet. As
       proposed Lot A has a depth of approximately 50 feet. Because Harrison
       Street has a right-of-way width of approximately 33 feet, less than the
       required standard of 60 feet, BMC 20.10.080E provides that the centerline
       for setback purposes is the farthest edge of the existing right-of-way that
       was dedicated by the subject property. Harrison Street was dedicated
       entirely by the Happy Valley plat. None of the right-of-way was dedicated
       from the subject property so the centerline for setback purposes is the
       southern property line of the lots. BMC 20.30.040F requires a minimum
       front yard setback of 50 feet from the centerline of the abutting street.
       Application of the front yard setback requirement leaves no buildable area
       on proposed Lot A. Application of the front and side yard (five feet on

                                            11
No. 67877-9-1


      each side) setback requirements to the existing smaller lot leaves a
      buildable area of approximately 40 feet by 40 feet. The proposal seeks to
      modify an existing lot that has sufficient dimensions to comply with the
      front yard setback requirements of the Land Use Development Ordinance,
      BMC 20.30.040F, creating a lot that cannot comply with these
      requirements.

      While Lind contends Harrison Street was not intended to be the principal means

of access to the abutting property and therefore was not a through lot or a street

requiring setbacks, the Hearing Examiner's findings of fact that stated otherwise are

unchallenged and therefore verities on appeal.         Finding of Fact 9 states: "The

applications for lot line adjustment and a wetland/stream permit were submitted to

obtain approval for the development of two single-family residences on the properties

with street access from Harrison Street." Finding of Fact 54 states:

      The Harrison Street right-of-way is approximately 33.6 feet in width. It is
      unimproved abutting the Lind Bros, property. A gravel driveway and
      private structure encroachments are located within the right-of-way to the
      east of the property. Harrison Street is a non-arterial, residential access
      street. BMC 18.08.420 defines a "street" as a right-of-way having a width
      of 30 feet or more which provides the principal means of access to the
       property.

      These findings are also supported by the record. The Lind proposal shows Lot A

abutting Harrison Street to the south. Additionally, testimony from Bruce Ayers, who

helped Lind prepare the application, concedes that Harrison Street was considered the

access road to avoid wetland impacts:

       [Gjiven the impacts of improving Star Court, because that would go right
       through the middle of the wetland and the buffers and cause greater
       impact to develop Star Court road for access we then looked to the option
       of accessing from Harrison Street because the wetland didn't encumber
       Harrison Street as much as it does Star Court. So the decision to access
       off Harrison Street was a legitimate and good faith effort to minimize our
       impacts and not build a road on Star Court because we didn't want those
       greater impacts.


                                           12
No. 67877-9-1


Accordingly, the Hearing Examiner did not err by concluding that Lind's proposal further

infringes on the Land Use Development Ordinance by failing to comply with its setback

requirements.   While Lind argues that the alternative would equally infringe on City

ordinances by having a greater impact on wetlands and buffers, the City correctly notes

that the requirement of BMC 18.10.020(B)(3) that the proposal not "further infringe"

applies to the City Land Use Ordinance, codified in Title 20 BMC, not the City's wetland

regulations which are codified in former chapter 16.50 BMC, the Wetland Stream

Ordinance.

C. Improvement of Function and Utility of Existing Lots

       The Hearing Examiner concluded that Lind's proposal does not improve the

function and utility of the existing lots because dedication of an additional right-of-way to

provide a standard 60-foot right-of-way width, combined with the setback requirements,

reduces the functional size of the property. The Hearing Examiner further concluded:

       The proposal locates septic drainfields within the wetland buffer area. It
       locates the access portion of Lot B within the wetland. Although the
       existing configuration of the larger lot may not be ideal with respect to
       avoidance of wetland and buffer impacts, the determination of the Director
       that the proposal does not improve the overall function and utility of the
       existing lots due to the wetland and buffer impacts is not erroneous. The
       proposal does not improve the function and utility of the existing smaller
       lot which is currently located almost entirely outside the wetland and buffer
       areas that are shown on the site plan.          Because of the deficiencies
       previously noted with respect to proposed Lot A the proposal creates one
       unbuildable lot and another that will require substantial impacts to a
       wetland and buffer area for development. This does not appear to be an
       improvement to the function and utility of the existing lots.

       This conclusion is supported by the record. The exhibit showing the site plan

layout of the existing lots locates the smaller lot almost entirely outside of the wetland
and buffer areas, while the layout for the proposed lots shows that access and onsite


                                             13
No. 67877-9-1


septic systems are located almost entirely within the wetland buffer.     But Lind points

out that as the lots currently exist, only one house could be constructed without

impacting the wetland, whereas the proposed lot adjustment would result in having two

buildable lots outside of the wetland.       Thus, at most, the record shows that both

configurations have equal impact on the function and utility on the land, but it cannot be

said with certainty that one is in fact an improvement over the other. Lind has therefore

failed to show that the Hearing Examiner erred by concluding that the proposal did not

improve the function and utility of the existing lots.

       Because Lind's proposal fails to meet the four criteria required for a lot line

adjustment approval, Lind has failed to show that the Hearing Examiner's denial of the

lot line adjustment was error. Accordingly, the superior court's reversal of this decision

was in error and we reverse the superior court and affirm the Hearing Examiner's ruling.

Because Lind cannot proceed without approval of the lot line adjustment, a

determination    on the    issuance of the wetland/stream       permit is   unnecessary.

Accordingly, we reverse the superior court's order requiring that the City issue a
wetland/stream permit and that the Hearing Examiner issue a decision on Lind's appeal

of the conditions in the revised MDNS.




WE CONCUR:




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