       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



GRANDVIEW NORTH, LLC, a                                No. 69639-4-
Washington limited liability company,
                                                       DIVISION ONE
                     Appellant/
                     Cross Respondent,

                                                                                               o
                                                                                    CO    Co


CITY OF BURLINGTON, a municipal                        UNPUBLISHED                  rn
                                                                                               CD
corporation,                                                                              o
                                                                                          ~n        -n

                                                       FILED: February 18,2014 co
                     Respondent/                                                    35"   wmLJ
                     Cross Appellant.

                                                                                          2:<:


       Cox, J. — Grandview North LLC appeals the superior court's order

affirming the City of Burlington's decision to deny Grandview's land use

application. Grandview contends that the denial was not supported by

substantial evidence, was an erroneous interpretation of the law, was an

erroneous application of the law to the facts, and violated its constitutional right to

equal protection. The City cross-appeals the superior court's order denying its

motion to dismiss.

       Because Grandview fails in its burden to show it is entitled to relief under

LUPA, we affirm. Since it is unnecessary to reach the City's arguments, we do

not.

       In February 2007, Grandview submitted a proposal to develop a site

located on Burlington Boulevard near the Costco Drive intersection. Grandview

sought to build an oil change facility called "Oil Can Henry's."
No. 69639-4-1/2




      Gibson Traffic Consultants prepared two traffic impact analyses for

Grandview. The City retained Garry Struthers Associates ("GSA") to conduct

peer reviews of these reports. GSA identified errors in Gibson's analysis and

problems with Grandview's proposal. It recommended that the City deny the

proposal.

      Upon receiving the permit application, the City conducted an

environmental review. The City determined that the project may have a

significant environmental impact. It issued a "Determination of Significance and

Request for Comments on the Scope of an Environmental Impact Statement."

       In July 2008, Grandview brought a LUPA petition and complaint for

damages challenging the issuance of the determination of significance. The City

argued that the petition was premature because it had to be consolidated with

the land use decision, which had not yet been made. The superior court

dismissed the petition in March 2009.

       In April 2009, the City issued a "Draft Environmental Impact Statement." It

identified adverse impacts on traffic operations and safety issues. It also noted

that the problem at this location is "seriously exacerbated" by the fact that there is
an existing business that is "directly affected" by Grandview's proposal.

Specifically, it noted that Grandview proposed to use a corner of the adjacent
property to the south where there is a bicycle shop business. This property is

owned by Burlington Boulevard LLC ("B.B. LLC").
No. 69639-4-1/3


       Grandview redesigned the project in September 2010 so that it was limited

to encroaching on an easement Grandview shared with B.B. LLC between their

respective properties ("revised design"). This design was also problematic. But

Grandview did not submit any further revisions to the project.

       Several months later, the City issued its "Final Environmental Impact

Statement." This identified potential safety and traffic impacts of the proposal,

and it proposed alternatives, such as relocating neighboring businesses or

redesigning the intersection.

       In February 2011, the Planning Commission considered Grandview's

proposal. At the meeting, the Planning Director expressed concerns over both

the original design and the revised design. The Planning Commission denied

Grandview's proposal and made its findings of fact and conclusions of law.

       Grandview appealed the Planning Commission's decision to the

Burlington City Council. By its written decision dated May 12, 2011, the City

Council affirmed the Planning Commission's denial. It made its findings of fact

and conclusions of law.

       Grandview brought this LUPA action in April 2011, claiming errors related

to the City's decision to issue a determination of significance, and the City's

decision to deny the development application. Grandview also alleged that the

City's actions violated 42 U.S.C. § 1983.

       In superior court, the City moved to dismiss for failure to serve B.B. LLC

as an indispensable party. The superior court denied this motion.
No. 69639-4-1/4


       After a hearing, the superior court entered its own findings of fact and

conclusions of law and an order affirming the decision of the City Council.

       Grandview appeals. The City cross-appeals.

                            LAND USE PETITION ACT

       Grandview argues that the superior court erred when it denied relief under

LUPA by affirming the City's denial of Grandview's land use application. We hold

that Grandview fails in its burden to show it was entitled to relief.

       LUPA is the exclusive means of judicial review of land use decisions.1
RCW 36.70C.130 outlines the standards for the superior court to grant relief

requested by a LUPA petitioner.2 The court may grant relief only if the party
seeking relief has carried the burden of establishing that one of six standards has

been met.3

       "An appellate court stands in the same shoes as the superior court and

reviews the administrative record."4 Alleged errors of law are reviewed de novo

and questions of fact are reviewed for substantial evidence.5 When reviewing a
decision under LUPA, an appellate court "'must give substantial deference to




       1 RCW 36.700030(1).

       2RCW36.70C.130(1).

       3lcL

      4 King County. Dep't of Dev. and Envtl. Servs. v. King County, 177Wn.2d
636, 643, 305 P.3d 240 (2013).

       5 Id.
No. 69639-4-1/5


both the legal and factual determinations of a hearing examiner as the local

authority with expertise in land use regulations.'"6
       Grandview argues that the following four subsections of RCW

36.700130(1) warrant relief in this case:

       (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;




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

                                Substantial Evidence

       Grandview argues that the City's decision to deny the land use application

is not supported by substantial evidence when viewed in light of the whole

record. It argues instead that the evidence supports its proposal, because it
shows that the project would not have a significant impact on traffic and would

comply with "level of service" standards. We conclude that substantial evidence

supports the City's denial.

       "Under the substantial evidence standard, there must be a sufficient

quantum of evidence in the record to persuade a reasonable person that the

       6 Durland v. San Juan County, 174 Wn. App. 1, 12, 298 P.3d 757 (2012)
(quoting Lanzce G. Douglass, Inc. v. City of Spokane Valley, 154Wn. App. 408,
415-16, 225 P.3d 448 (2010)).
No. 69639-4-1/6


declared premise is true."7 When reviewing a challenge to the sufficiency ofthe
evidence supporting a land use decision, a court views facts and inferences "in a

light most favorable to the party that prevailed in the highest forum exercising

fact-finding authority . . . ."8 Doing so "'necessarily entails accept[ing] the
factfinder's views regarding the credibility of witnesses and the weight to be given

reasonable but competing inferences.'"9
       Here, the City has prevailed in all forums to date.

       In its written decision denying Grandview's application, the City Council

made 19 findings of fact and 8 conclusions of law. Generally, the findings

discussed both the original and revised designs and the problems related to

each. In general, the City concluded that there were public safety issues, traffic

issues, and adverse environmental impacts. It concluded that the original design

encroached onto B.B. LLC's property and contained fatal design flaws. It

concluded that the revised design did not comply with fire code requirements.

Accordingly, the City Council concluded that neither design was acceptable.
       When viewing the facts and inferences in a light most favorable to the

City, we agree that there is substantial evidence in the record to show that: (1)
both designs had safety issues; (2) both designs interfered with B.B. LLC's use of


      7 Phoenix Dev.. Inc. v. City of Woodinville. 171 Wn.2d 820, 829, 256 P.3d
1150(2011).

       8 Id, at 828-29.
        9 Spokane County v. Eastern Wash. Growth Momt. Hearings Bd.. 176 Wn.
App. 555, 565, 309 P.3d 673 (2013) (alteration in original) (internal quotation
marks omitted) (quoting State ex rel. Lioe &Wm. B. Dickson Co. v. County of
Pierce, 65 Wn. App. 614, 618, 829 P.2d 217 (1992)).
No. 69639-4-1/7


its property; (3) both designs would have an adverse impact on traffic; and (4) the

revised design did not conform to fire code requirements. Thus, the permit denial

was proper.


       First, there is substantial evidence in the record that both designs

submitted by Grandview had safety issues.

       GSA's peer review stated that the proposed site plan "offers no sidewalk

on the south side of the property forcing pedestrians to cross the driveway to

access the site sidewalk." It stated that this "will create unnecessary conflicts

between pedestrians and vehicles."

       The City Engineer also expressed safety concerns about both designs.

He stated that the original design's plan for access to the bike shop is

"dangerous and unworkable." And he stated that the revised design is "unsafe"

because "the skew angle of the intersection becomes extremely problematic, not

in accordance with sound engineering design practices."

       The final environmental impact statement stated that the proposal "will not

allow for a protected movement for southbound left-turns as may be needed for

safety." It indicated the original design was a "potentially dangerous design that

requires drivers to cross the lanes of traffic at the signal," and it noted that there

would "be an increased potential for traffic accidents."

       The Assistant City Engineer also expressed concerns about safety with

the revised design. He stated: "I sure wouldn't want to be a pedestrian trying to

navigate around this skewed intersection. There are so many issues with this

design." He stated that "[t]he leftturn out is problematic, not safe." Additionally,
No. 69639-4-1/8


he identified several hazards of skewed intersections including: difficulty for older

drivers to turn their heads for an adequate line of sight; a decrease in drivers'

sight angle for observation of opposing traffic and pedestrian crossings; and

difficulty for drivers to align their vehicles in the correct lane.

          In sum, there was substantial evidence that both designs had safety

issues.

          Grandview argues that the record does not support the assertion that the

design of the intersection was unsafe. But, for the reasons explained above, this

appears to be nothing more than a disagreement over what the record shows.

          Grandview also argues that a "glaring flaw" in this argument is that the

intersection "is in existence at the present time." But as the City points out,

Grandview does not propose to utilize the intersection in its current form.

Accordingly, these arguments are not persuasive.

          Second, there is substantial evidence that both designs would interfere

with B.B. LLC's property. Grandview's original design would have encroached

on B.B. LLC's main property. Grandview's revised design would affect that

property as well as the access to a shared easement. In a letter to the City
Council, B.B. LLC emphasized that either proposal would have an adverse

impact.

          The evidence showed not only that B.B. LLC's main property would be

affected under the original design, but that B.B. LLC's property within the

easement would also be affected under the revised design. The revised design,

which the City received in September 2010, showed that Grandview's project


                                                 8
No. 69639-4-1/9


would be constructed on B.B. LLC's real property but entirely within a mutual

access easement located along the boundary line. B.B. LLC asserts that its

north property line runs approximately through the center of the easement.

Grandview does not dispute that part of the easement is located upon B.B. LLC's

property. This was also acknowledged by Grandview's representative who

stated:

                 The majority of the driveway improvement remains on
          [Grandview's] property, and a small southern portion of the
          driveway does extend upon the adjacent bike shop property, but
          not beyond the legal extent offered to [Grandview] by the existing
          ingress, egress, and utility easement that is shared between
          [Grandview's] property and [B.B. LLC's] property.'101
          Moreover, the revised design affects B.B. LLC's access and use of the

easement. A representative for B.B. LLC stated the "biggest issue for [B.B. LLC]

is ingress/egress to their property" because the design would change the

configuration of getting in and out of the bike shop. B.B. LLC's representative

stated that if a street is constructed on the north boundary to replace the current

easement, it will "wall off [its] property from the north and make the property

virtually an island" leaving only a "small and inadequate" driveway.

          In sum, there was substantial evidence that the proposal would affect B.B.

LLC's real property or interfere with its use of the easement.

          Grandview argues that the proposal would not encroach upon B.B. LLC's

property, "but instead, would be confined to the easement that existed between

the two properties." This admission illustrates the problem. As the record


          10
               Clerk's Papers at 2530.
No. 69639-4-1/10


shows, this design also affects B.B. LLC's access and use of the easement, a

property right that Grandview cannot ignore. Thus, Grandview's argument is not

persuasive.

      Third, there is substantial evidence that Grandview's proposal would have

adverse impacts on traffic.

       The City's traffic consultant identified several problems. Initially, he noted

that the skewed intersection and conflicting left turns would require the existing

signal to operate in "split phase mode," which is "unacceptable in terms of

providing efficient traffic circulation." He stated that split phase operations have a

"deleterious impact on signal coordination in the corridor." Further, he noted a

"cut through" route would be created through Costco to avoid the intersection.

       In his second peer review, he noted additional problems. One issue was

excessive "queuing." Specifically, he identified intersections where queue length

exceeds the storage capacity of the lane. He stated that the storage lanes "must

either be redesigned or the signal timings changed to eliminate the excessive

queuing."

       Another issue was "channelization." He explained that the site access

roadway is "inadequate to accommodate the anticipated traffic demand."

Additionally, he noted that the proposed access "does not meet the minimum

arterial standard for intersection spacing."

       He also identified issues with the "level of service" analysis conducted by

Gibson, Grandview's consultant. He examined Gibson's conclusions that the




                                               10
No. 69639-4-1/11


level of service complied with the standards, and he pointed to conflicting data.

He also predicted drops in level of service.

       Finally, he indicated that Gibson's analysis had deficiencies. This point

was supported by a letter submitted from Transportation Solutions Inc., on behalf

of Costco. That letter stated that the lack of queue data rendered Grandview's

traffic analysis "fundamentally flawed and inadequate."

       In addition to the City's traffic consultant's analysis, a representative from

Costco also stated that there are operational issues associated with the

proposed intersection.

       In sum, there is substantial evidence that there would be adverse traffic

impacts, including problems with circulation, queuing, channelization, intersection

spacing, and changes to the level of service.

       Grandview argues that its data shows that there is no impermissible

decrease in level of service and that the City's assertion to the contrary is a

"misinterpretation of the data." But inferences are taken in the light most

favorable to the City, as it was the party that prevailed in the highest forum

exercising fact-finding authority.11 Thus, this argument is not persuasive.
       Grandview also argues that the City's peer review failed to identify level of

service deficiencies. But the City's consultant identified data that conflicted with

Grandview's analysis. Additionally, he indicated that there would be specific

drops in level of service. Moreover, he identified flaws in Grandview's analysis

and conclusions.



       11 See Phoenix Dev.. Inc.. 171 Wn.2d at 828-29.


                                               11
No. 69639-4-1/12


       Further, as previously discussed, the City's consultant identified several

other problems related to traffic, including queuing, channelization and circulation

issues. Grandview fails to address any of these issues or explain why these

concerns are immaterial. Thus, Grandview's argument about level of service is

unpersuasive.

       Fourth, there is substantial evidence that the revised design did not

conform to fire code requirements. The City's Fire Chief stated that the fire

apparatus access in the revised design is "insufficient throughout the site and

does not conform to Fire Code requirements." The City Council concluded that

this design "does not allow fire department access to the site, in violation of BMC

Section 12.28.100 et. seq., and Art. 503.1 of the International Fire Code." This

was also not addressed by Grandview.

       Overall, the City's decision to deny Grandview's application was supported

by substantial evidence.

       Grandview makes several general arguments that the evidence was not

sufficient to deny the application, but none of its arguments are persuasive.

       First, Grandview "takes exception" to six findings of fact. But Grandview

does not specifically challenge the sufficiency of these findings, nor does it make

any argument related to them.12 Grandview also does not specifically argue
against any of the City's conclusions of law. Rather, Grandview argues

generally, that the land use decision is not supported by substantial evidence.


       12 See Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828
P.2d 549 (1992) (declining review of issues unsupported by argument).

                                             12
No. 69639-4-1/13


But this general argument fails given the reasons previously discussed in this

opinion.

       Second, Grandview compares the evidence in this case to that presented

in The Benchmark Land Co. v. City of Battle Ground.13 But that case is

distinguishable.

       There, the city required Benchmark to improve an off-site road as a

condition to approving its development application.14 The city argued that the
improvements were required by ordinance.15 At issue in that case was the code
provision requiring certain improvements as a condition for approval.

       The supreme court held that the condition for approval was not supported

by substantial evidence and that the condition was invalid.17 Its analysis
centered on the facts that (1) the road did not meet standards even before

developmentwas proposed; (2) the improvements were not directly related to the

development but rather would relieve a preexisting deficiency; and (3) traffic

studies found that the development would have little to no impact on safety and

operations on that section of the road.18



       13146 Wn.2d 685, 49 P.3d 860 (2002).

       14 ]d at 688-89.

       15 ]d at 689.

       16JcL
       17 ]g\ at 688.

       18 See id. at 695.


                                            13
No. 69639-4-1/14


       Here, in contrast, this City did not condition Grandview's proposal on a

specific improvement. Rather, the City proposed several alternatives when it

recognized that Grandview's proposal was problematic. Additionally, the

alternatives proposed by the City were related to concerns about the

development, not about a preexisting deficiency. Moreover, evidence showed

that Grandview's proposal would directly impact the safety, operations, and traffic

at that particular intersection, and thus, the proposed alternatives were not

related to an unaffected section of road. Accordingly, Grandview's reliance on

Benchmark is not persuasive.

       Third, Grandview argues that the City's approval of another project ("the

Copeland project") also demonstrates that the denial of Grandview's project is

not supported by substantial evidence. Specifically, it argues that the two

projects involved the same intersection but that the approach taken by the City in

the two projects was "vastly different." But comparing the City's approach in

these two cases is not relevant to the analysis of whether there was substantial

evidence to support the denial of Grandview's application. Rather, this argument

is more appropriate for Grandview's constitutional argument, which we discuss

later in this opinion.

       Finally, Grandview argues that the City relied upon facts that are contrary

to the record and that contradict each other. Grandview compares Finding of

Fact No. 12, which acknowledges that the proposal was redesigned to not

encroach on B.B. LLC's property, with Finding of Fact No. 16, which states that

the project "proposes to take part of the property to the south without agreement


                                            14
No. 69639-4-1/15


from the owner." But Grandview's argument misstates the City's findings. In

finding No. 12, the City indicated that it was referring to the revised plan, and in

finding No. 16, the City explicitly states that it is referring to "the earlier proposal,

dated April 15, 2008." Accordingly, these findings do not contradict each other

because they are referring to different designs. Additionally, both findings are

supported by the record. Thus, Grandview's argument is not persuasive.

                         Erroneous Interpretation of the Law

       Grandview argues that the City erroneously interpreted the law when it

"chose to ignore the mandates of [the Growth Management Act ("GMA")] and its

duly adopted comprehensive plan and development regulations." But such an

argument is relevant to an analysis of whether the City erroneously applied the

law, which is discussed later in this opinion. For this standard, Grandview

appears to be arguing that the correct interpretation of the GMA and the

comprehensive plan is one that requires approval of a project showing

compliance with level of service standards. We disagree.

       Whether an administrative decision reflects an erroneous interpretation of

the law under LUPA is a question of law that this court reviews de novo.19 As
previously noted, RCW 36.700130(1 )(b) provides that the superior court may

grant relief if "[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."



       19 Dep't of Ecology v. City of Spokane Valley. 167 Wn. App. 952, 961, 275
P.3d 367, review denied. 175 Wn.2d 1015 (2012).


                                                15
No. 69639-4-1/16


      The GMA requires local jurisdictions to "adopt and enforce ordinances

which prohibit development approval if the development causes the level of

service ... to decline below the standards adopted in the transportation element

of the comprehensive plan, unless transportation improvements or strategies to

accommodate the impacts of development are made concurrent with the

development."20

      Here, the City's comprehensive plan states:

             2. The planned Level of Service is not to exceed Level of
      Service C except for the Burlington Boulevard corridor which is not
      to exceed Level of Service D. [. . .]

             3. Proposed projects that decrease the level of service below
      the planned level, because of their traffic contribution, shall be
      denied unless concurrent improvements are made to prevent a
      decrease in level of service below the planned level for that
      location. [. . . ][21]
But, as the City points out, the comprehensive plan is adopted by ordinance.22
The City cites to Burlington's Municipal Code § 12.28.010(D) for the relevant law:

      The city of Burlington comprehensive transportation plan has
      adopted level of service "C" for all streets except Burlington
       Boulevard, for which a level of service "D" is adopted. If a traffic
      study meeting the specifications of the city engineer is prepared
      that demonstrates that the development causes the level of service
      to decline below the adopted standards, then transportation
      improvements or strategies to accommodate the impacts of
      development are required to be made concurrent with the




       20 RCW 36.70A.070(6)(b).

       21 Brief of Appellant at 4-5 (quoting City of Burlington Comprehensive
Plan, Chapter 10).

       22 Brief of Respondent/Cross-Appellant City of Burlington at 3, 35-36.

                                             16
No. 69639-4-1/17


      development, or the development permit application shall be
      denied.[23]

       Here, these provisions all stand for the same proposition. They all

mandate denial of a development application if the level of service would fall

below the adopted standards. But none of these provisions mandate the

inverse—approval of a development application if the level of service would

comply with the adopted standards. The plain language of these provisions does

not compel the City to approve Grandview's application based solely on

compliance with level of service standards. Grandview does not cite any other

provisions to support its argument to the contrary.

      Grandview relies on City of Bellevue v. East Bellevue Community

Municipality Corp.. where this court held that the Growth Management Act

("GMA") does not allow a city to circumvent its own statutorily required

concurrency ordinance.24 Grandview argues that "is precisely what the City has
done in this case, although in reverse fashion."

      There, the Bellevue City Code exempted certain types of projects from its

concurrency requirements, justifying the exemption on the grounds that these

projects would decrease traffic and provide necessary goods and services.25
The Board invalidated the exemption and this court upheld the Board's




       23 id, (quoting Burlington Municipal Code 12.28.010(D)).
       24 119 Wn. App. 405, 407, 81 P.3d 148 (2003).

       25 ]d at 412-13.

                                            17
No. 69639-4-1/18



decision.26 This court stated that "concurrency is not a goal, it is a
requirement."27
       But, here, the City did not create an exception to the ordinance when it

denied Grandview's application. The holding in Bellevue should not be extended

to compel approval ofa proposal for compliance with one requirement.28
Grandview's reliance on that case is not helpful.

                          Erroneous Application of the Law

       Grandview argues that the City erroneously applied the law to the facts.

Specifically, it argues that its project complied with level of service standards and

the City erred by failing to adhere to these standards. We disagree.

       Under LUPA, a land use decision is a clearly erroneous application of the

law to the facts, if "the reviewing court is left with the definite and firm conviction

that a mistake has been committed."29

       Here, we have no "definite and firm conviction" that the City erroneously

applied the law for two reasons.

       First, the City's peer review identified deficiencies with Grandview's

analysis, disputed some of Grandview's conclusions, and pointed to specific

drops in level of service. This report could be interpreted to show that



       26 Id at 413-15.

       27 jd, at 414.
       28 119 Wn. App. 405, 81 P.3d 148 (2003).
      29 Citizens to Preserve Pioneer Park LLC v. City of Mercer Island. 106 Wn.
App. 461, 473, 24 P.3d 1079 (2001).

                                               18
No. 69639-4-1/19


Grandview's plan does not comply with level of service standards. It could also

show that Grandview's study did not meet the specifications of the city engineer.

          Second, as previously discussed, the relevant law does not require

approval of an application solely for compliance with level of service standards.

Thus, even if Grandview's plan complied with these standards, the City did not

erroneously apply the law when it denied Grandview's application for the reasons

it did.

          Grandview argues that it is "nonsensical" to conclude that a City is

required to reject a proposal unless the standards are met, and at the same time

the City is free to reject a proposal that complies with the standards. But the law

expressly requires the City to reject a noncompliant proposal, and the law does

not require the City to accept a proposal that complies with one requirement.30
Thus, Grandview's argument is not persuasive.

          Grandview compares its plan to the Copeland project, arguing that the

Copeland project did not comply with level of service standards, yet it was

approved. But even if this were true, this does not affect application of the law to

the facts in this case. This argument is not analytically relevant.

                                    Equal Protection

          Grandview argues that the denial of its application violates the equal

protection clauses of both the state and federal constitutions. Specifically,

Grandview argues that by denying its permit application and by approving the

Copeland project, the City intentionally treated Grandview differently from others


          30 See RCW 36.70A.070(6)(b).

                                               19
No. 69639-4-1/20


similarly situated, and there is no rational basis for the difference in treatment.

We disagree.

       As an initial matter, the City moved to strike pursuant to RAP 17.4(d) and

asks this court to overturn the trial court's order allowing supplementation of the

record with documents related to the Copeland project. The City argues that the

documents do not meet any of the LUPA standards for supplementation and they

are not "newly discovered evidence." Grandview does not make any argument to

this point in its reply. Based on the law, we grant the City's motion and disregard

material that is not properly before us.

       Generally, under LUPA, our review is limited to the record that was before

the Board.31 Supplementing the record in LUPA is limited by RCW

36.700120(2):

              (2) For decisions described in subsection (1) of this section,
       the record may be supplemented by additional evidence only if
       the additional evidence relates to:

               (a) Grounds for disqualification of a member of the body or
               of the officer that made the land use decision, when such
               grounds were unknown by the petitioner at the time the
               record was created;

               (b) Matters that were improperly excluded from the record
               after being offered by a party to the quasi-judicial
               proceeding; or

               (c) Matters that were outside the jurisdiction of the body or
               officer that made the land use decision.[32]



       31 Kahuna Land Co. v. Spokane County. 94 Wn. App. 836, 841, 974 P.2d
1249(1999).

       32 (Emphasis added.)

                                              20
No. 69639-4-1/21


       An appellate court will review the trial court's decision to introduce new

evidence for abuse of discretion.33

       These documents do not fall within any of the three exceptions under the

LUPA statute. Accordingly, allowing the supplementation was not a proper

exercise of discretion.

       We disregard the evidence not properly before us. Grandview fails to

point to any evidence outside of this supplemental record to support its claim that

its equal protection rights were violated under either the state or federal

constitutions. Accordingly, we reject this claim.

       In sum, Grandview fails to demonstrate that it was entitled to relief under

LUPA. The trial court properly dismissed Grandview's claims for relief.

                               MOTION TO DISMISS

       The City properly conceded at oral argument of this case that it is not

necessary to reach its cross-appeal regarding the denial of the motion to dismiss

if we deny Grandview's request for relief on appeal. Accordingly, we do not

reach the City's arguments on its cross-appeal.

                                ATTORNEY FEES


       Both Grandview and the City ask for attorney fees pursuant to RCW

4.84.370. We grant the City's request.

       RCW 4.84.370(1) provides that reasonable attorney fees and costs shall

be awarded to the prevailing party on appeal. Further, RCW 4.84.370(2)

provides that in an appeal of a land use decision "the county, city, or town whose


       33 Exendine v. City of Sammamish, 127 Wn. App. 574, 586, 113 P.3d 494
(2005).
                                             21
 No. 69639-4-1/22


 decision is on appeal is considered a prevailing party if its decision is upheld at

 superior court and on appeal."

        Here, the City's decision was upheld at the superior court. Accordingly,

 the City is the prevailing party and has the right to recover fees. We award such

 fees, subject to its compliance with RAP 18.1.

        We affirm the superior court's decision denying relief under LUPA and

 affirming the decision of the City Council. We also grant the City's request for

 attorney fees, subject to its compliance with RAP 18.1.


                                                            (JZJA^X

 WE CONCUR:




^r_(2uWfl Q, -, C\                                  v^^ -A




                                              22
