131 Wn. App. 756, Cingular Wireless, L.L.C. v. Thurston County

[No. 32967-1-II. Division Two. February 28, 2006.]

CINGULAR WIRELESS , L.L.C., Appellant , v. THURSTON COUNTY , Respondent .

[1] Building Regulations - Land Use Regulations - Judicial Review - Land Use Petition Act - Appellate Review - Record - Agency Record. An appellate court reviewing a local land use decision that a superior court has reviewed under the Land Use Petition Act (chapter 36.70C RCW) stands in the shoes of the superior court and reviews the local agency decision based on the administrative record.

[2] Building Regulations - Land Use Regulations - Judicial Review - Land Use Petition Act - Appellate Review - Issues of Law - Standard of Review. Whether relief from a local land use decision is warranted under RCW 36.70C.130 (1)(a), (b), (e), or (f) of the Land Use Petition Act because the decision is the result of an unlawful procedure or a failure to follow a prescribed process, involves an erroneous interpretation of the law, was made by an agency acting outside of its authority or jurisdiction, or violates constitutional rights is a question of law that an appellate court reviews de novo.

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[3] Building Regulations - Land Use Regulations - Judicial Review - Land Use Petition Act - Appellate Review - Findings of Fact - Standard of Review. Under RCW 36.70C.130(1)(c) of the Land Use Petition Act, findings of fact entered by a local adjudicator in a land use proceeding are reviewed by an appellate court under the substantial evidence standard. Substantial evidence is evidence that would persuade a fair-minded person of the truth of the statement asserted.

[4] Building Regulations - Land Use Regulations - Judicial Review - Land Use Petition Act - Appellate Review - Findings of Fact - Deference. An appellate court's deferential review of a local land use decision that a superior court has reviewed under the Land Use Petition Act (chapter 36.70C RCW) requires the court to consider the evidence and the reasonable inferences that can be drawn from the evidence in the light most favorable to the party who prevailed in the highest forum that exercised fact-finding authority in the case.

[5] Building Regulations - Land Use Regulations - Judicial Review - Land Use Petition Act - Appellate Review - Clearly Erroneous Decision - What Constitutes. An appellate court will not find a local land use decision to be the product of a clearly erroneous application of the law to the facts within the meaning of RCW 36.70C.130 (1)(d) of the Land Use Petition Act unless it is left with a definite and firm conviction that a mistake has been made. In applying the clearly erroneous standard of review, the court defers to the factual determinations made by the highest forum that exercised fact-finding authority in the case.

[6] Building Regulations - Building Permit - Application - Use Prohibited by Comprehensive Plan - Consistency With Zoning Code - Effect. Where a local land use and development code expressly states that proposed developments must comply with development standards in the area comprehensive plan as well as specific zoning regulations, a proposed development that complies with specific zoning regulations may be denied for failure to satisfy comprehensive plan standards if such standards are sufficiently specific, the comprehensive plan does not conflict with the specific zoning regulations, and the decision is supported by appropriate findings of fact and is grounded on a factually specific consideration of the suitability of the particular site for the proposed development.

[7] Building Regulations - Land Use Regulations - Development Regulations - Specificity - Necessity. A local planning jurisdiction is not required by state law to adopt specific development standards. A local planning jurisdiction may adopt only general standards in its comprehensive plan, so long as they are adequate.

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[8] Building Regulations - Building Permit - Special Permit - Effect of Proposed Development - Comprehensive Plan Policy - Compatibility With Special Use Standards - General and Specific Standards. Where a policy in a local area comprehensive plan states that a particular kind of development or facility should be located near compatible land uses as defined in the jurisdiction's special use standards and such special use standards include both specific and general standards, a proposed development or facility may be denied for failure to satisfy the general standards.

[9] Building Regulations - General and Specific Standards - Compliance - Conflict - Test. Where a local land use and development code states that proposed developments must comply with both general and specific development standards, a proposed development may be denied for failure to satisfy both sets of standards if the general and specific standards do not conflict. Where general and specific standards do not conflict, the general standards may supplement the specific standards by providing additional criteria for evaluating the impact of a proposed development. General and specific standards do not conflict if one does not permit what the other forbids or does not forbid what the other permits.

[10] Counties - Ordinances - Validity - Vagueness - Test. Whether a county ordinance is unconstitutionally vague depends on whether it regulates action in terms so vague that persons of ordinary intelligence must guess at its meaning.

[11] Building Regulations - Land Use Regulations - Vagueness - Facial Invalidity - Particular Conduct. When determining whether a land use enactment is unconstitutionally vague, a court evaluates the enactment on its face and as applied in the particular circumstances.

[12] Building Regulations - Land Use Regulations - Vagueness - Arbitrary and Discretionary Enforcement. Land use ordinances must be specific enough to limit arbitrary and discretionary enforcement of the law.

[13] Building Regulations - General and Specific Standards - General Standards - Validity - Vagueness. The application of general development standards to deny a land use proposal does not violate the proponent's right to due process of law if the proponent was on notice that compliance with the general standards was required and the general standards are sufficiently precise so as to preclude arbitrary enforcement.[14] Telecommunications - Telephones - Cellular Telephone Systems - Siting - Federal Telecommunications Act - Effect. That part of the Federal Telecommunications Act (47 U.S.C. § 332(c)) prohibiting local regulators from unreasonably discriminating among wireless communications service providers or prohibiting

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or having the effect of prohibiting the provision of personal wireless services is not violated by a local agency's consideration of the degree to which a neighborhood already is served by wireless services if the purpose for doing so is to determine whether a proposed wireless communications facility would provide an "overriding public benefit" that would justify approval of the project despite a prior agency finding that the proposed facility would have an undue adverse effect on the neighborhood. Under the act, the authority of local zoning boards to grant or deny permits for the construction of wireless communications facilities is expressly preserved. For purposes of the act, an "effective prohibition" exists only when the proposed site is the least intrusive means of closing a significant coverage gap in light of the values that denial of the permit would serve to promote.

[15] Building Regulations - Building Permit - Special Permit - Effect of Proposed Development - Compatibility With Existing Uses - Presumption. State law allows the denial of a special use permit for the proposed use's incompatibility with existing uses and does not recognize a presumption of compatibility.

[16] Building Regulations - Building Permit - Environmental Review Conclusions - Effect. It is not necessarily inconsistent for a local agency, having earlier concluded upon environmental review of a proposed development that the proposed development will not adversely affect area wildlife, to later conclude, upon consideration of a building permit application, that the proposed development is inappropriate for the proposed site in view of neighborhood characteristics that include "abundant wildlife." The agency may fairly conclude that, although the proposed development will not harm wildlife, it will detract from area residents' enjoyment of wildlife, along with the other unique features of the area.

[17] Telecommunications - Telephones - Cellular Telephone Systems - Siting - Special Permit - Effect of Proposed Development - Matters Considered - Removal of Trees. For purposes of analyzing an application for a special use permit in a rural residential area for the installation of a wireless communications facility that would require the removal of trees, the proposed tree removal may be viewed as an adverse effect.

[18] Building Regulations - Land Use Regulations - Judicial Review - Land Use Petition Act - Appellate Review - Weight and Credibility of Evidence. An appellate court reviewing a local land use decision that a superior court has reviewed under the Land Use Petition Act (chapter 36.70C RCW) will defer to the administrative fact finder's evaluation of the weight and credibility of the evidence.[19] Telecommunications - Telephones - Cellular Telephone Systems - Siting - Special Permit - Effect of Proposed Development - Matters Considered - Validity. A local agency decision to deny a special use permit for the construction of a

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wireless communications facility in a rural residential area is valid if the decision is supported by findings, based on substantial evidence in the record, that the facility would have substantial adverse aesthetic impacts and would be incompatible with the neighborhood character, contrary to applicable land use and development regulations, and the record shows that the local decision maker expressly discounted unsubstantiated neighborhood residents' fears about radio frequency emissions, environmental impacts, and declining property values.

[20] Building Regulations - Land Use Regulations - Judicial Review - Appellate Review - Attorney Fees - "Prevailing" Party - Government Agency. A government agency that prevails at the administrative level, at trial, and before an appellate court in a dispute over an application for a land development permit is entitled to an award of attorney fees under RCW 4.84.370 .

Nature of Action: A wireless communications company sought judicial review of a county board of commissioners' denial of the company's request for a special use permit to erect a cellular telephone antenna tower in a rural residential area.

Superior Court: The Superior Court for Thurston County, No. 04-2-01541-1, Richard D. Hicks, J., on March 10, 2005, entered a judgment upholding the board of commissioners' decision.

Court of Appeals: Holding that the permit application was properly evaluated under applicable general standards and specific regulations, that denial of the permit did not contravene federal law, and that substantial evidence supported the decision, the court affirms the judgment.

Amit D. Ranade and Paul J. Lawrence (of Preston Gates & Ellis, L.L.P. ), for appellant.

William D. Kamerrer (of Law, Lyman, Daniel, Kamerrer & Bogdanovich ) and Edward G. Holm , Prosecuting Attorney, and Jeff Fancher , Deputy, for respondent.

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¶1 HOUGHTON, J. - Cingular Wireless, L.L.C., sought a special use permit to erect a cell phone tower in a rural residential area. A hearing examiner denied the permit and the Board of County Commissioners, with some modifications, affirmed the hearing examiner. Cingular appealed to the superior court under the Land Use Petition Act (LUPA), chapter 36.70C RCW, and the court denied the petition.

¶2 Cingular appeals, arguing that (1) the hearing examiner improperly applied general standards from the county's comprehensive plan rather than applying only specific county code provisions, (2) the determination that the tower would have an "undue" adverse impact contravenes the Federal Telecommunications Act, and (3) substantial evidence does not support the hearing examiner's decision.

¶3 Because, under these facts, both the general standards and specific regulations on cell phone towers apply, federal law does not apply, and substantial evidence supports the decision, we affirm.

I. FACTS

¶4 Cingular applied for a special use permit to erect a cellular antenna tower or wireless communications facility (WCF) at a site in an Olympia rural residential area. Following an evaluation of the proposed project, the Thurston County Planning Department issued a mitigated determination of nonsignificance (MDNS)«1»and recommended issuance of the special use permit, subject to conditions.

¶5 Area residents appealed the MDNS under the State Environmental Policy Act (SEPA), chapter 43.21C RCW. Following a public hearing to consider both the SEPA appeal and the special use permit application, a hearing examiner affirmed the MDNS, but he denied the special use permit. Cingular appealed to the Thurston County Board of Commissioners (Board) which, with slight modifications,


«1»A MDNS is a decision that a proposal is not likely to have a significant environmental impact, as mitigated by specified measures. WAC 197-11-734 , -766.


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affirmed the hearing examiner.«2»Cingular then appealed to federal court, under both the Federal Telecommunications Act, 47 U.S.C. § 332(c), and the LUPA. The federal court declined to exercise supplemental jurisdiction over the state law claims and stayed the federal claims. Cingular then appealed the Board's decision to the superior court under LUPA, but the court denied the petition.

¶6 Cingular wants to erect the WCF to close a coverage gap in its Personal Communications Services (PCS)«3»network. Currently, the two to three square mile coverage gap includes portions of the main north/south road along the eastern side of Budd Inlet in northeastern Olympia. Cingular customers do not have reliable service within this coverage gap. Thus, the Cingular system drops calls as customers pass through the area. Cingular's Federal Communications Commission (FCC) license obliges it to "build out" its PCS network in order to close such coverage gaps.

¶7 Cingular proposes to build a 150-foot freestanding monopole WCF, with a three antennae array, each with two flat panel antennas. The proposed site lies within an area of northeastern Olympia known as Boston Harbor, which is zoned rural residential, with one home per two acres.

¶8 The primary uses allowed in the zone include agriculture, single family homes, and home businesses. Thurston County Code (TCC) 20.10.020.«4»The TCC permits a WCF as a special use, subject to chapter 20.54 TCC, which estab


«2»Under the county zoning code, hearing examiner decisions are appealable to the Board. Thurston County Code (TCC) 20.60.060(2). The Board limits its review to the evidence presented to the hearing examiner. TCC 2.06.080(C). The Board may adopt, amend, reject, or reverse the hearing examiner's conclusions of law and decision or remand for further consideration. TCC 2.06.080(D). But the hearing examiner remains the fact finder.

«3»A PCS consists of a honeycomb of cell towers. A signal is strongest close to the tower and grows weaker with distance. The system automatically hands off cellular calls from one facility to another as a caller moves around. A coverage gap exists when there is insufficient overlap in the effective range of towers so that calls cannot be made or are dropped.

«4»All cites are to the 2002 version of the county code. As noted, in making its arguments, Cingular repeatedly, and sometimes misleadingly, quotes the current version.


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lishes both general and specific standards that must be met before a special use may be permitted.

¶9 The general standards provide that: (1) the proposed use "shall comply with the Thurston County Comprehensive Plan and all applicable federal, state, regional, and Thurston County laws or plans"; (2) the proposed use "shall comply with the general purposes and intent of the applicable zoning district regulations and subarea plans"; and (3) "[n]o application for a special use shall be approved unless a specific finding is made that the proposed special use is appropriate in the location for which it is proposed." TCC 20.54.040. The latter finding must be based on a determination that "[t]he proposed use shall not result in substantial or undue adverse effects on adjacent property, neighborhood character, natural environment, traffic conditions, parking, public property or facilities, or other matters affecting the public health, safety and welfare." TCC 20.54.040(3)(a).

¶10 The TCC also establishes specific standards for 45 particular special uses, including WCFs, which apply "in addition to" the general standards. TCC 20.54.070, .070.44.3, .070.44.6, .070.44.8. Chapter 20.33 TCC«5»sets forth the specific WCF standards. In particular, WCF


«5»Of importance to our analysis, we note that Cingular and Thurston County appended inapplicable current versions of chapter 20.33 TCC to their briefs. Cingular bases some of its arguments on this inapplicable code.

The applicable code substantially differs from the current version. Thurston County adopted the current version in November 2003, repealing the version in effect when Cingular filed its application. The current WCF section specifies stricter and more particularized design standards than those in effect at the time of this land use decision.

Throughout its brief, Cingular emphasizes the hearing examiner's finding that it had met the specific WCF design standards. But the design standards the hearing examiner found were met are not the same as those quoted by Cingular in its briefing.

For example, the applicable version includes a "specific" standard for "siting": "Significant visual impacts of a WCF, from the front and rear of any residence on adjacent properties and for any residence across the roadway from the WCF, shall be minimized to the maximum extent feasible through careful siting." TCC 20.33.080(5). In contrast to the applicable standard for "careful siting," the current inapplicable "siting" standard comprises well over a thousand words.

Under the current standards, freestanding WCFs are not permitted in residential districts (including the one at issue here) unless there is no available or feasible site in a nonresidential district and the denial of a permit would "have the effect of prohibiting the provision of personal wireless communication service." TCC 20.33.080(2)(a). Also, WCFs must be located in areas where their "visual impact is least detrimental to views of recognized landmarks, such as . . . Mount Rainier." TCC 20.33.080(2)(b)(i). A proposed use that has a significant detrimental impact on such landmarks must be denied unless an applicant demonstrates that a site with less impact is not available.

Had the hearing examiner denied the special use permit after finding that Cingular met the current more exacting standards, Cingular's argument that the hearing examiner erred by relying on the general standards might have more merit because it would then appear that the general standards are inconsistent with the specific ones. But that is not the case before us.


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design standards are codified in TCC 20.33.080 and cover 10 categories: height, setbacks, co-location with other providers, separation, siting/screening/camouflaging, security, parking/access, signals, outdoor storage, and noise.

¶11 The hearing examiner found that Cingular's proposed use met the specific TCC 20.33.080 WCF design standards. Then, based on testimony and evidence presented by area residents, the hearing examiner found that the project would not be appropriate in the proposed location. Accordingly, the hearing examiner concluded that the permit should be denied because it did not comport with the general standards.

¶12 At the public hearing, 22 area residents testified, voicing concerns about the aesthetic, environmental, and health impacts of the proposed WCF. In addition, about 150 citizens signed a petition opposing the permit.

¶13 Several citizens voiced concerns about the adverse health impacts of radiofrequency (RF) emissions, including increased risk of cancer. Because the Federal Telecommunications Act (TCA) expressly prohibits local officials from basing land use decisions on fears about RF emissions when proposed WCFs comply with FCC RF exposure limits, and because the proposed WCF complied with such limits, the hearing examiner did not consider this testimony.

¶14 Citizen concerns about environmental effects focused on the adverse effect on birds and other wildlife, salmon in nearby streams, and groundwater contamination. But the hearing examiner determined that the pro

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posed WCF met guidelines issued by the United States Fish and Wildlife Service. Moreover, the Washington Department of Fish and Wildlife found the project would have no adverse impact. The hearing examiner determined that the adverse environmental impacts were aesthetic.

¶15 To support its request, Cingular submitted 10 balloon photographs, taken from various vantage points. In four of the photographs, a digital monopole tower is superimposed over the site to simulate the visual effect of the WCF. Some residents objected to the balloon photographs because they do not depict views from one of the neighborhoods that the WCF would impact.

¶16 Cingular wanted to place the WCF on a 1,600 square foot site it leased within a 3.25 acre parcel that had been donated to the North Thurston County Fire District for community use and recreational purposes. A fire station currently sits on the property. Also, about 150 feet from the proposed WCF site, there is a park with a picnic area, volleyball court, and playground. Residents use the park for weddings, picnics, and family gatherings.

¶17 Finding of fact 13 states:

The Appellants and other residents objected to the proposal on the basis of aesthetic and environmental impacts. The surrounding rural neighborhood enjoys vistas of farmland and Mt. Rainier. One of the primary aesthetic impacts identified by residents is the obstruction of their Mt. Rainier view corridor. Residents submitted that the site is on a migration route for songbirds. The subject property is near the Nisqually National Wildlife Refuge, and there are large conservation parcels to the west and north of the site. The businesses in the neighborhood are family owned and operated. The types of businesses include horse boarding, gardening and auto repair (home-based). The residents are committed to upholding the character of the neighborhood.

Administrative Record (AR) at 40.

¶18 Based on these findings, the hearing examiner concluded that the project conflicts with the comprehensive

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plan's policy to "locate private utility facilities near compatible land uses as defined in the County's Special Use standards." AR at 51. The hearing examiner also concluded that the project would not comply with the purpose and intent of the zoning district, which is to "enhance and preserve the rural agricultural character in areas where there is currently little development." AR at 51.

¶19 Finally, the hearing examiner concluded:

Based on the credible (and voluminous) testimony and evidence of the surrounding residents, the facility would have an undue adverse effect on neighborhood character. The neighborhood is marked by scenic vistas of farmland and Mt. Rainier, home-based businesses, outdoor recreational opportunities, and abundant wildlife. A 150-foot tall monopole tower would detract from these features and aesthetic environment. Such an effect is "undue" per TCC 20.54.040(3)(a) because the neighborhood is served by wireless services. Although the Applicant provided credible evidence that Cingular has a coverage gap for in-vehicle and in-home service in the area of the proposed WCF, the Applicant did not identify any laws or regulations that would require Thurston County to fill every such coverage gap, particularly when, as here, the facility would detract from the character of a unique neighborhood. No evidence was provided that the FCC mandates seamless in-vehicle or in-home coverage. Even if such coverage were required, the Applicant is not precluded from seeking a more appropriate site from which to provide such coverage.

AR at 53.

¶20 On appeal of the hearing examiner's decision, the Board affirmed, stating that "the proposed WCF will have a looming presence over the adjacent community area that historically has been used for recreational and community purposes." AR at 2917. The Board added the modifier "substantially" to the hearing examiner's conclusion that the WCF would "detract from these features and aesthetic environment." AR at 2917. The Board crossed out the sentence that the WCF's adverse effect would be "undue" because the neighborhood is served by wireless services and substituted the following:

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Furthermore, the proposed cell tower is not providing an overriding public benefit because the neighborhood is currently served by wireless services. If the proposed cell tower was providing coverage in an area that did not otherwise have coverage then the county could pursuant to TCC 20.54.040(3)(a) allow the special use permit in spite of the identified undue adverse effects. However, that is not the case here.

AR at 2917.

¶21 On appeal to the superior court, the court denied the LUPA petition, agreeing with the Board that the hearing examiner could properly reject the special use permit based on the TCC's general standards even though Cingular met the specific WCF requirements. In particular, the court agreed that the TCC 20.54.040 general standards must be met in addition to the chapter 20.33 TCC specific standards.

¶22 Cingular appeals.

II. ANALYSIS

A. STANDARD OF REVIEW

[1-5]¶23 LUPA governs judicial review of land use decisions. Under LUPA, we "stand[ ] in the shoes of the superior court and review[ ] the hearing examiner's action on the basis of the administrative record." Pavlina v. City of Vancouver , 122 Wn. App. 520 , 525, 94 P.3d 366 (2004). A court may grant relief on a land use decision only if the party seeking relief has carried the burden of establishing that one of the following standards is met:

(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;

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(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.

RCW 36.70C.130 (1).

¶24 Standards (a), (b), (e), and (f) present questions of law we review de novo. HJS Dev., Inc. v. Pierce County , 148 Wn.2d 451 , 468, 61 P.3d 1141 (2003). Standard (c) concerns a factual determination that we review for substantial evidence supporting it. Freeburg v. City of Seattle , 71 Wn. App. 367 , 371, 859 P.2d 610 (1993).

¶25 Substantial evidence is evidence that would persuade a fair-minded person of the truth of the statement asserted. Freeburg , 71 Wn. App. at 371 . Our deferential review requires us to consider all of the evidence and reasonable inferences in the light most favorable to the party who prevailed in the highest forum that exercised fact-finding authority. Freeburg , 71 Wn. App. at 371 -72. Here, that was the hearing examiner.«6»

¶26 The clearly erroneous standard (d) test involves applying the law to the facts. Citizens to Preserve Pioneer Park, L.L.C. v. City of Mercer Island , 106 Wn. App. 461 , 473, 24 P.3d 1079 (2001). Under that test, we determine whether we are left with a definite and firm conviction that a mistake has been committed. Citizens to Preserve , 106 Wn. App. at 473 . Again, we defer to factual determinations made by the highest forum below that exercised fact-finding authority. Citizens to Preserve , 106 Wn. App. at 473 .


«6» See note 2.


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B. CINGULAR'S ERROR OF LAW ARGUMENTS

1. Application of TCC 20.54.040

¶27 Cingular first contends that the hearing examiner erroneously interpreted the law and violated subsection (b) of RCW 36.70C.130 (1) in rejecting the special use permit because he based his decision on the TCC's general standards. Cingular argues that when it satisfied the specific WCF standards, it fulfilled all special permit requirements for WCFs.

¶28 Cingular's first error of law argument, which we review de novo, comprises four parts. More specifically, Cingular contends that the hearing examiner (1) improperly interpreted applicable law, (2) incorrectly applied the law, (3) incorrectly construed the law, and (4) denied Cingular its due process and equal protection rights.

a. Comprehensive Plan and Specific Zoning Ordinances

¶29 First, Cingular argues that the hearing examiner improperly elevated the County's comprehensive plan over specific zoning ordinances. Cingular cites Citizens for Mount Vernon v. City of Mount Vernon , 133 Wn.2d 861 , 947 P.2d 1208 (1997), for support.

¶30 In Citizens for Mount Vernon , that city approved a commercial planned unit development based on its conformity with Mount Vernon's recently adopted comprehensive plan even though preexisting specific zoning ordinances prohibited the proposed use. The superior court reversed the city and our Supreme Court affirmed, holding that a comprehensive plan, standing alone, cannot be used to make specific land use decisions. Citizens for Mount Vernon , 133 Wn.2d at 873 . Where there are conflicts between a general comprehensive plan and a specific zoning code, the conflicts must be resolved in the zoning code's favor. Citizens for Mount Vernon , 133 Wn.2d at 874 .

¶31 Cingular argues that the decision here is contrary to Citizens for Mount Vernon because the hearing examiner

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relied on the comprehensive plan even though Cingular met specific TCC requirements. Cingular's misplaces its reliance on Citizens for Mount Vernon .

[6, 7]¶32 To the extent a comprehensive plan prohibits a use that the zoning code permits, the use is permitted. Lakeside Indus. v. Thurston County , 119 Wn. App. 886 , 895, 83 P.3d 433, review denied , 152 Wn.2d 1015 (2004). But where, as here, the zoning code itself expressly requires that a proposed use comply with a comprehensive plan, the proposed use must satisfy both the zoning code and the comprehensive plan. Lakeside , 119 Wn. App at 895 (citing Weyerhaeuser v. Pierce County , 124 Wn.2d 26 , 43, 873 P.2d 498 (1994) (citing Cougar Mountain Assocs. v. King County , 111 Wn.2d 742 , 757, 765 P.2d 264 (1988))); see also W. Main Assocs. v. City of Bellevue , 49 Wn. App. 513 , 524-25, 742 P.2d 1266 (1987) (noting that comprehensive plans can be given regulatory effect through enactment, in whole or part, as a regulation or ordinance), review denied , 112 Wn.2d 1009 (1989).

¶33 In Lakeside , we reviewed the County's denial of a special use permit for asphalt manufacturing within the Nisqually Valley. As in this case, the proposed use met the specific standards for that particular use as set forth in TCC 20.54.070, but the county board reversed the hearing examiner and denied the permit because the proposal failed to meet the County's general standards under TCC 20.54.040. Lakeside , 119 Wn. App. at 892 -93. The county board concluded that the proposed use conflicted with the Nisqually subarea plan, contrary to TCC 20.54.040(1). Lakeside , 119 Wn. App. at 892 , 895.

¶34 More specifically, the county board, sitting as an appellate body, accepted the hearing examiner's findings of fact, including his determination that the proposed use would have no adverse effect on a range of "sensitive areas," including groundwater, drainage, traffic, flooding, noise, and air quality. Lakeside , 119 Wn. App. at 897 . But after accepting those findings, the county board reversed the

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hearing examiner, invoking the subarea plan's general purpose statements to deny the permit.

¶35 On appeal, we disagreed that the proposed use conflicted with the Nisqually subarea plan and, thus, we reversed and held that the proposed use properly complied with both the general and the specific standards of the special use permit code provisions. Lakeside , 119 Wn. App. at 897 . Although we reversed the county board's action and reinstated the hearing examiner's decision, we implicitly agreed that a county could require compliance with both general and specific standards for proposed special uses. The circumstances before us differ from those in Lakeside because here the hearing examiner found that the proposed use would have specific adverse effects and, thus, did not meet both the general and specific requirements.

¶36 Although Cingular's briefing did not include any discussion of Lakeside , at argument before this court Cingular relied on it for the proposition that "the Board may not invoke the plan's general purpose statements to overrule the specific authority granted by the zoning code." 119 Wn. App. at 898 -99. In Lakeside , we cited Sunderland Family Treatment Services v. City of Pasco , 127 Wn.2d 782 , 796-97, 903 P.2d 986 (1995), and reversed because the county board decision "violates the rule that specific zoning laws control over general purpose growth management statements and fails to provide meaningful standards for review of a county decision to deny a permit." Lakeside , 119 Wn. App. at 898 .

¶37 We referred to that statutory construction principle based on the particular facts presented in Lakeside . There, the subarea plan itself contained both specific and general provisions: although it generally prohibited new large-scale, commercial development, it specifically identified the mine in question as an existing permitted mining operation. When the Board invoked the subarea plan's general policy against new industrial development in order to deny the permit, it created a conflict between the subarea plan's general policy statement and its specific authorization for

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the existing mine. We held that such a conflict must be resolved in favor of the specific authorization.

¶38 Further, in Lakeside , the county board failed to identify any factual findings in support of its decision. Instead, the hearing examiner's findings indicated that the project met all relevant zoning code provisions, both general and specific. The situation differs here. The hearing examiner's findings identify specific adverse effects on the neighborhood character. Based on those findings, the Board affirmed the hearing examiner. The Board noted that a community recreational area was just 150 feet from the site, the WCF would create "visual pollution" in the adjacent Cushman area neighborhood and obstruct the neighborhood's Mount Rainier view corridor, a number of significant trees would be removed, and the WCF would "have a looming presence over the adjacent community area that historically has been used for recreational and community purposes." AR at 2916-17.

¶39 Unlike in Lakeside , here the county board's decision was consistent with the facts found by the hearing examiner and grounded in a factually specific consideration of the suitability of the particular site for the proposed project.

¶40 Continuing our discussion, we note that state law does not require that a county adopt specific standards; rather it may adopt general standards in its comprehensive plan, so long as they are adequate. For example in Sunderland, the court found such general standards inadequate where the municipal code allowed special permits on a case-by-case basis, but without further elaboration of the applicable standards.

¶41 Here, the County's general standards contain the specificity lacking in Sunderland . Likewise, as noted the facts here differ from those in Lakeside , where the county board engaged in the sort of ad hoc decisionmaking rejected in Sunderland , by asserting its prerogative to make a "case by case" determination of permitted uses within the Nisqually basin, even though the subarea plan itself spe

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cifically identified the mine at issue as a permitted use. Lakeside , 119 Wn. App. at 898 .

¶42 Because here the comprehensive plan is not inconsistent with the specific zoning code, the County properly requires a proposed WCF to satisfy both the comprehensive plan, as enacted in chapter 20.54 TCC, and the specific standards for WCFs, set forth in chapter 20.33 TCC. Thus, we reject Cingular's argument that the County improperly elevated the comprehensive plan over specific zoning ordinances.«7»

b. Special Use Standards

[8]¶43 Second, Cingular argues that the hearing examiner erred in applying the comprehensive plan because the plan defers to the specific special use standards to determine whether a use is compatible. We disagree that the hearing examiner failed to apply the appropriate special use standards.

¶44 The comprehensive plan includes a policy to "locate private utilities facilities near compatible land uses as defined in the county's Special Use standards." (Thurston County Comprehensive Plan, Utilities, at 7-13). Cingular


«7»In a statement of additional authorities, Cingular cites our Supreme Court's recent decision, Viking Properties v. Holm , 155 Wn.2d 112 , 118 P.3d 322 (2005). Viking involved a private restrictive covenant limiting development to one home per one-half acre. The appellant argued that the covenant was void because it was contrary to the Growth Management Act's (GMA), chapter 36.70A RCW, public policy preference for concentrated growth within urban areas.

The Court rejected the argument, holding that the GMA is merely a framework that guides land use planning but does not directly regulate site-specific activities. "Instead, it is local development regulations, including zoning regulations enacted pursuant to a comprehensive plan, which act as a constraint on individual landowners." Viking , 155 Wn.2d at 126 (citing Cougar Mountain Assocs. v. King County , 111 Wn.2d 742 , 757, 765 P.2d 264 (1988) (King County could not deny a development permit based on lack of compliance with comprehensive plan when the zoning code permitted the proposed use)).

Cingular offers Viking as additional authority "on the role of comprehensive plans with respect to individual land use decisions." Statement of Additional Authorities, Spindle. Viking adds no additional support to Cingular's arguments. It does not alter the rule that local authorities may give regulatory effect to comprehensive plan provisions by specifically incorporating them into zoning ordinances, as the County did in this case.


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argues that this requires the hearing examiner to rely solely on the specific standards of chapter 20.33 TCC to determine whether a use is "compatible."

¶45 Cingular's argument ignores that the "Special Use standards" referred to by the comprehensive plan include both specific and general standards. Among the general standards is that the proposed special use be "appropriate in the location for which it is proposed," as determined by whether the special use will have an undue adverse impact on the neighborhood character or impose an undue burden on preexisting services. TCC 20.54.040(3). In determining that the proposed WCF was contrary to the comprehensive plan's utilities policy, the hearing examiner based his decision on finding that the WCF failed to meet this general standard contained in the special use code provision. Thus, Cingular's argument lacks merit.

c. Specific and General Standards

¶46 Third, Cingular argues that because one of the purposes of the specific standards is to protect neighborhood character, the specific standards control in deciding whether a proposed WCF satisfies the general standard that a special use must be appropriate for a particular location.«8»In making this argument, Cingular relies on the rule of statutory construction that where one statute deals with a subject in general terms and another deals with the same subject in a more detailed way, the two should be harmonized if possible and, if there is any conflict, the specific prevails over the general absent a contrary legislative intent. Higbee v. Shorewood Osteopathic Hosp ., 105


«8»Cingular quotes the current chapter 20.33 TCC purpose statement, which specifically states a purpose to protect "neighborhood character." Appellant's Br. at 15, Appellant's Reply Br. at 11. Because one of TCC 20.54.040's general standards requires there be no undue adverse impact on "neighborhood character," Cingular argues that the more specific standards were intended to control the determination of whether the general standard is met. But this is an instance where Cingular's presentation of the current code, rather than the applicable code, misleads. The version that controls this land use decision states a more general purpose to protect " 'residential areas and other land uses from potential adverse impacts of WCFs.' " AR at 2442 (quoting TCC 20.33.010(2)).


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Wn.2d 33, 37, 711 P.2d 306 (1985) (harmonizing special survival statute with general survival statute); Pannell v. Thompson , 91 Wn.2d 591 , 597, 589 P.2d 1235 (1979) (specific spending limitation of $6,090,000 prevails over general authorization to make expenditures and general prohibition on reductions in the Department of Social and Health Services spending program).

[9]¶47 Even if there were a conflict between the specific and the general provisions, the TCC clearly expresses the intent that a use be denied unless both special and general provisions are met. TCC 20.03.040 ("Even if a proposed special use meets all the special standards for that particular use, the use must also meet the general standards of this title for special uses, and shall be denied if the special and general standards are not met."); TCC 20.54.030 (A special use must comply with both specific requirements "and those of other applicable chapters of this title."); TCC 20.54.040 ("In addition to the specific standards set forth hereinafter with regard to particular special uses, all uses authorized as special uses shall meet the following standards."); TCC 20.54.070 (specific standards for particular uses apply "in addition to" those established elsewhere in the code).

¶48 Moreover, no conflict exists between the general standards of chapter 20.54 TCC and the specific WCF regulations in chapter 20.33 TCC. The specific standards do not permit what the general ones forbid, or vice versa. Rather, the general standards complement the specific ones.

¶49 Chapter 20.33 TCC's specific design standards apply to WCFs throughout the County. Some of the design standards distinguish between WCFs within and outside urban growth areas, but most do not. Apart from a general prohibition on WCFs at residences, historical sites, and

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critical areas, the design standards do not make distinctions based on zoning district or particular location.«9»

¶50 The specific design standard related to "siting" provides: "Significant visual impacts of a WCF, from the front and rear of any residence on adjacent properties and for any residence across the roadway from the WCF, shall be minimized to the maximum extent feasible through careful siting." TCC 20.33.080(5). The TCC further provides that the visual impact of a WCF be minimized through appropriate use of color and screening by trees and vegetation. TCC 20.33.080(5)(b)-(c). The hearing examiner determined that the WCF would not be appropriate for the proposed location even though Cingular met the specific design criteria of chapter 20.33 TCC.

¶51 Were we to accept Cingular's argument that the specific design criteria control whether a proposal meets the general requirement that it is appropriate for the location, there would be no basis to reject a 150-foot WCF proposed for the middle of a high density residential area that obviously obstructed water or mountain views so long as it was painted in neutral colors and encircled by newly planted 6-foot trees. Depending on the particular location, minimizing the visual impact "to the maximum extent feasible" may or may not meaningfully protect "neighborhood character." TCC 20.33.010(3). At particular locations, it may not be feasible to significantly minimize the visual impact of a WCF. The general standards supplement the specific ones by permitting the County to take into account the nature of the particular site in evaluating a proposal's impact.

¶52 Cingular would have us view the WCF design standards as elaborations of "generic" general standards, just as specific development regulations implement the general policies of a comprehensive plan. The design standards are more aptly characterized as generic WCF regulations that


«9»At argument, the County's counsel explained that the specific design standards comprise "measurable" criteria for the WCF structure and the general siting standards comprise "location" criteria.


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apply regardless of a WCF's particular location. The special use permit code's general standards supplement the WCF regulations by providing additional criteria to determine the appropriateness of a WCF at a particular location. The general standards of TCC 20.54.040 apply independently of, and parallel with, the specific standards of chapter 20.33 TCC. Thus, Cingular's statutory construction argument fails.

d. Constitutional Due Process and Equal Protection Rights

¶53 Fourth, Cingular argues that applying the general standards to deny the permit despite compliance with the specific standards violates Cingular's constitutional rights to due process and equal protection. Cingular argues unconstitutional vagueness.

[10-12]¶54 An ordinance is unconstitutionally vague if it regulates action in terms so vague that persons of ordinary intelligence must guess at its meaning. Anderson v. City of Issaquah , 70 Wn. App. 64 , 75, 851 P.2d 744 (1993). In the land use area, we look not only at the face of the ordinance but also at how it applies to the person who has sought to comply with the ordinance and/or who is alleged to have failed to comply. Anderson , 70 Wn. App. at 75 . Zoning ordinances must be specific enough to limit arbitrary and discretionary enforcement of the law. Anderson , 70 Wn. App. at 75 .

[13]¶55 Cingular relies on Anderson to support its contention that the vague general standards fail to guide the hearing examiner's consideration of its permit application. In Anderson , the city denied a building permit for lack of compliance with its aesthetic design standards. The design standards required that buildings be "compatible" with adjacent structures and have "appropriate proportions," with "harmonious" colors and fixtures, while avoiding "monotony" of design. Anderson , 70 Wn. App. at 67 . At multiple public hearings, members of the development

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commission repeatedly sent the developer "back to the drawing board" after voicing generalized personal dissatisfaction with the project design. The Anderson court held that the city's aesthetic designs standards were unconstitutionally vague because they provided so little guidance that officials were left to rely on their own, individual subjective feelings about whether the proposed design met the requirements. 70 Wn. App. at 76 .

¶56 Cingular likens the County's general special use permit standards to Issaquah's aesthetic standards. In Cingular's view, the County's general standards leave officials to rely on their subjective feelings about whether a WCF is appropriate in its proposed location. We disagree.

¶57 In Pinecrest Homeowners Ass'n v. Glen A. Cloninger & Associates , 151 Wn.2d 279 , 87 P.3d 1176 (2004), our Supreme Court rejected a similar challenge to a land use decision based on 14 "design concepts" for a Spokane neighborhood plan, included within the city's comprehensive plan. Although the city had not yet adopted specific development regulations, it approved a rezone application based on conformity with the design concepts of the neighborhood plan. The Court of Appeals reversed, holding that the design concepts were too vague to provide adequate guidance to land use planners, likening the decision to the ad hoc decisionmaking in Anderson .

¶58 Our Supreme Court reversed the Court of Appeals and reinstated the city's decision. The Court distinguished Anderson because it involved "an extremely vague building review process" and the design standards were more general than the design concepts at issue in Pinecrest , and because the design concepts did not stand alone but were considered along with other zoning ordinances. Pinecrest , 151 Wn.2d at 293 .

¶59 The situation here is more similar to Pinecrest than to Anderson . Cingular had notice from the outset that it must comply with both specific and general standards. Cingular suggests that the hearing examiner unfairly shifted the ground for his decision from the specific regula

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tions to the general standards. Yet, as noted above, the TCC clearly states in multiple provisions that proposed special uses are subject to both general and specific standards. And, as noted before, our state law does not require specific standards, but only general standards such as those contained in a comprehensive plan. Sunderland , 127 Wn.2d at 797 . The general standards here are far more precise than the vague, free-floating aesthetic standards in Anderson , or the standardless "case-by-case" determination in Sunderland . Cingular's constitutional challenge fails.

2. Consideration of Existing Wireless Coverage to Find "Undue" Adverse Effect

[14]¶60 Cingular next contends that the hearing examiner also committed an error of law in deciding that because wireless coverage is already available through other providers, the adverse effect of the proposed WCF would be "undue." Appellant's Br. at 19. Cingular argues that this is contrary to the TCA, which requires local officials to cooperate with wireless service providers to close coverage gaps on their own networks, regardless of whether other providers service the area.

¶61 The hearing examiner concluded that "[b]ased on the credible (and voluminous) testimony and evidence of the surrounding residents, the facility would have an undue adverse effect on neighborhood character. . . . Such an effect is 'undue' per TCC 20.54.040(3)(a) because the neighborhood is served by wireless services." AR at 52.

¶62 The Board had authority to revise the hearing examiner's conclusions, and it did so. TCC 2.06.080(D). The Board crossed out the second sentence (beginning "such an effect") and substituted the following language:

Furthermore, the proposed cell tower is not providing an overriding public benefit because the neighborhood is currently served by wireless services. If the proposed cell tower was providing coverage in an area that did not otherwise

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have coverage then the county could pursuant to TCC 20.54.040(3)(a) allow the special use permit in spite of the identified undue adverse effects. However, that is not the case here.

AR at 2917.

¶63 The Board's language clarifies that the availability of coverage through other providers was a relevant consideration only after the hearing examiner concluded that the proposed WCF would have an "undue adverse effect" on neighborhood character. On finding that the WCF would have such an undue adverse effect, the hearing examiner could have approved the permit if he had found that the WCF would provide an "overriding public benefit":

The proposed use shall not result in substantial or undue adverse effects on adjacent property, neighborhood character, natural environment, traffic conditions, parking, public property or facilities, or other matters affecting the public health, safety and welfare. However, if the proposed use is a public facility or utility deemed to be of overriding public benefit, and if measures are taken and conditions imposed to mitigate adverse effects to the extent reasonably possible, the permit may be granted even though the adverse effects may occur.

TCC 20.54.040(3)(a).

¶64 The Board considered the availability of coverage through other providers as relevant to the question of whether the WCF would provide an "overriding public benefit" that could support approval despite its substantial or undue adverse effects. The determination that the WCF would have an undue adverse effect was based on the direct impacts of the proposed WCF and not on whether other providers serviced the area.

¶65 Once the hearing examiner determined that the WCF would have a substantial adverse effect on neighborhood character, it had no obligation, under the TCA, to approve the permit unless failure to do so would result in an "effective prohibition" of cellular service in the area. 47 U.S.C. § 332(c)(7)(A), (B)(i)(I)-(II).

¶66 The TCA expressly preserves the authority of local zoning boards to grant or deny permits for the construction

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of WCFs. 47 U.S.C. § 332(c)(7)(A) ("[e]xcept as provided in this paragraph, nothing in this act shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities"). The only exceptions are that local regulators may not unreasonably discriminate among service providers or "prohibit or have the effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 332(c)(7) (B)(i)(II).

¶67 An "effective prohibition" exists only when the proposed site is "the least intrusive means" of closing a "significant coverage gap," in light of the values that denial of the permit sought to serve. MetroPCS, Inc. v. City & County of S.F. , 400 F.3d 715, 734 (9th Cir. 2005). Cingular demonstrated that it had a significant coverage gap but not that the proposed WCF was the least intrusive means of closing it. As the hearing examiner correctly stated, Cingular "is not precluded from seeking a more appropriate site from which to provide [seamless] coverage." AR at 52. Thus, the hearing examiner's decision is not contrary to the TCA.

C. CINGULAR'S ARGUMENTS BASED ON LACK OF EVIDENCE

1. Substantial Evidence

¶68 Cingular further contends that substantial evidence does not support the hearing examiner's decision to deny the special use permit. Cingular asserts that it "enjoys a presumption" that its proposal is compatible with the neighborhood because chapter 20.33 TCC aims to protect neighborhood character and Cingular has satisfied all elements of that section. Appellant's Br. at 22.

[15]¶69 In support, Cingular cites American Jurisprudence, Second Edition. That source undermines Cingular's position. 83 AM. JUR. 2D Zoning and Planning § 893 (2003) (noting that some jurisdictions, including our state, allow denial of a special use permit for incompatibility with

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existing uses, while others do not). Our state law does not recognize any such presumption. Further, Cingular again incorrectly quotes the current and inapplicable version of chapter 20.33 TCC: the applicable version of the specific WCF design regulations does not specify a purpose to protect neighborhood character.

¶70 Cingular also disputes the hearing examiner's findings and conclusions via several incorrect assertions. For instance, Cingular asserts, "[i]ndeed, one of his SUP [Special Use Permit] conclusions cites no facts at all." Appellant's Br. at 22. But all of the hearing examiner's SUP conclusions reference one or more findings of fact. Only a single SEPA conclusion does not reference a finding of fact, and that is simply a summary of the relevant legal rules with internal references to pertinent statutes.

¶71 Cingular further asserts that the hearing examiner cites no facts in support of his conclusion that the WCF will "detract from - not enhance - the rural agricultural character of the neighborhood." Appellant's Br. at 23. As the hearing examiner cites seven findings of fact in support, we disagree.

¶72 The hearing examiner cites facts establishing that the WCF would be 150-feet tall, with a three-sector antenna array (two antennas per sector); surrounding uses include rural residences and home-based businesses, with the nearest residence 300 feet away; the zone is rural residential, with WCFs permitted as a special use; 10 balloon photographs depict the likely visual impact of the WCF; the photographs fail to reveal the visual impacts on a neighborhood that would be impacted by the WCF;«10»the project site is used for community and recreational purposes, including a children's playground, picnic area, and volleyball court; area residents object on the basis of aesthetic and environmental impacts, including obstruction of Mt. Rainier views and vistas of open farmland; and neighborhood residents


«10»Cingular was required to submit balloon photographs with its application that show the WCF's visual impact on affected areas.


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are committed to upholding the rural character of the neighborhood.

[16]¶73 Cingular also argues that the hearing examiner contradicts himself by concluding that the WCF would detract from abundant wildlife even though he denied the SEPA appeal. But this mischaracterizes the hearing examiner's conclusion.

¶74 An issue in the SEPA appeal was whether the WCF would adversely impact area wildlife. The hearing examiner concluded that it would not. The issue in the SUP application was whether the WCF was appropriate for the proposed site in view of a number of criteria, including neighborhood character. The hearing examiner found: "The neighborhood is marked by scenic vistas of farmland and Mt. Rainier - a unique vista, home-based businesses, outdoor recreational opportunities, and abundant wildlife. A 150-foot tall monopole tower would detract from these features." AR at 51. It is not inconsistent to conclude that, although the WCF will not harm wildlife, it will detract from area residents' enjoyment of wildlife, along with the other unique features of the area, such as vistas of open farmland and of Mt. Rainier.

[17]¶75 Cingular cites Hilltop Terrace Homeowner's Ass'n v. Island County , 126 Wn.2d 22 , 35, 891 P.2d 29 (1995), to support its argument that the Board erred in concluding that the removal of nine trees would have an adverse effect. In Hilltop , our Supreme Court affirmed the approval of a WCF on Whidbey Island, noting that its placement within a mature stand of trees, among other factors, provided substantial evidence in support of a finding that the WCF would have no significant visual impact. 126 Wn.2d at 25 . The case is inapposite because it does not suggest that removal of trees could not properly be considered an adverse effect; nor does it suggest that placement within a stand of trees would always provide substantial evidence of no significant adverse visual impact.

¶76 Cingular further argues that the overwhelming evidence supports approval of the special use permit. Cingular

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asserts that the hearing examiner "ignored" objective evidence that the proposed WCF would not adversely affect the environment and instead relied solely on the "personal animosity" expressed by area residents. Appellant's Br. at 26.

[18]¶77 In reviewing this argument, we defer to the fact finder's evaluation of the weight and credibility of the evidence. J.L. Storedahl & Sons, Inc. v. Cowlitz County , 125 Wn. App. 1 , 11, 103 P.3d 802, 806 (2004), review denied , 155 Wn.2d 1002 (2005). As noted above, we review the hearing examiner's decision for substantial evidence. RCW 36.70C.130(1)(c).

¶78 The record does not support Cingular's assertion that the hearing examiner "ignored" evidence in its favor. The hearing examiner set forth a number of findings favorable to Cingular, indicating that he heard and considered all the evidence presented.

¶79 Nor does the record support Cingular's assertion that the "personal animosity" expressed by area residents swayed the hearing examiner. Appellant's Br. at 26. The hearing examiner expressly noted that he did not base his decision on residents' concerns about RF emissions, adverse impacts on the environment, or declining property values. Nevertheless, the hearing examiner determined that area residents credibly expressed valid concerns about the aesthetic impacts of the project. After considering all the evidence, the hearing examiner determined that the valid concerns about incompatibility with neighborhood character and adverse aesthetic impacts outweighed evidence in favor of the proposed use.

¶80 To bolster its argument that the hearing examiner's decision lacks substantial evidence supporting it, Cingular cites Seattle SMSA Ltd., Partnership v. San Juan County , 88 F. Supp. 2d 1128 (W.D. Wash. 1997). In SMSA , the county board denied a permit to construct two WCFs on Lopez Island. On appeal, the court reversed the decision, holding that the board's findings and conclusions made mere conclusory assertions without adequate reference to

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the administrative record. SMSA , 88 F. Supp. 2d at 1130. The county board had found that the WCF would " 'detract from the natural beauty and resources of the islands,' " but it did not cite any evidence in support. SMSA , 88 F. Supp. 2d at 1130. The county board also found the WCF was inconsistent with the "rural-residential development patterns" at the proposed site. SMSA , 88 F. Supp. 2d at 1130.

¶81 The SMSA court found this to be an overly broad assertion that "could justify the denial of almost any application for any use." 88 F. Supp. 2d at 1130-31. Moreover, the board's findings indicated that it had improperly considered the health impacts of RF emissions and unsubstantiated fears of declining property values, as well as the mere "vehement opposition" of area residents. SMSA , 88 F. Supp. 2d at 1131. The court remanded for additional findings in support of the board's decision.

¶82 The facts in SMSA clearly differ from those here where the hearing examiner entered 46 findings of fact. As noted above, the hearing examiner cites seven facts in support of finding that the WCF would detract from the neighborhood character. The hearing examiner expressly disregarded testimony and evidence on RF emissions and unsubstantiated fears of declining property values. And, as will be discussed more fully below, the hearing examiner did not rely on generalized community opposition but, rather, on specific concerns about incompatibility and aesthetic impacts, as he was allowed to do under the county zoning code.

[19]¶83 The testimony of area residents amply demonstrates that the WCF would adversely impact views of Mt. Rainier and open vistas of rural farmland. Currently, no other structures pierce the natural skyline in that area, which remains undeveloped except for residences, some home businesses, and a handful of nonresidential structures, including a fire station, gas station, and church. We hold that the record contains sufficient evidence of incompatibility with neighborhood character and adverse aesthetic impacts to support the hearing examiner's decision.

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2. Reliance on Neighborhood Opposition

¶84 Finally, Cingular contends that the hearing examiner improperly relied on general neighborhood discontent in denying the special use permit. Cingular cites a trio of cases for the proposition that local jurisdictions may not deny land use permits based solely on evidence of general neighborhood opposition: Sunderland , 127 Wn.2d 782 ; Maranatha Mining, Inc. v. Pierce County , 59 Wn. App. 795 , 804, 801 P.2d 985 (1990); Kenart & Assocs. v. Skagit County , 37 Wn. App. 295 , 680 P.2d 439, review denied , 101 Wn.2d 1021 (1984). These cases differ from the one before us.

¶85 In Sunderland , local officials denied a permit for a home for abused and neglected youth based on the unsubstantiated, generalized fears of area residents that the youth would frighten elderly residents, engage in criminal activity, bring other "nuisance activity," and reduce property values. 127 Wn.2d 782 . In reversing, our Supreme Court found that the unsubstantiated fears of area residents could not provide substantial evidence in support of the land use decision. Sunderland , 127 Wn.2d at 787 , 795. But unlike in Sunderland , here the hearing examiner expressly discounted unsubstantiated neighborhood fears about RF emissions, environmental impacts, and declining property values. Although "numerous letters leveled unfounded pecuniary and political charges against Cingular and the wireless services industry in general," the record does not support Cingular's assertion that the hearing examiner relied on such evidence. Appellant's Br. at 28. Rather, the hearing examiner relied on substantiated concerns about the WCF's incompatibility with the surrounding area and its adverse aesthetic impacts.

¶86 In Maranatha Mining, the county council denied a permit for gravel mining and asphalt production even though the applicant demonstrated a willingness and ability to mitigate each and every adverse impact opponents raised. 59 Wn. App. at 804 . As in Lakeside , the hearing examiner had found that the proposed use complied with all

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zoning regulations and would pose no adverse impact, but the city council reversed without altering any of those findings. In reversing the council, we noted that we could not escape the conclusion that the council "based its decision on community displeasure and not on reasons backed by policies and standards as the law requires." Maranatha Mining , 59 Wn. App. at 805 . We called the council's decision "a textbook example of arbitrary and capricious action: without consideration and in disregard of the facts." Maranatha Mining , 59 Wn. App. at 804 .

¶87 Unlike in Maranatha Mining , here the hearing examiner based the denial on factual findings that the proposed use would have substantial adverse aesthetic impacts and was incompatible with the neighborhood character, contrary to applicable zoning regulations. Although Cingular demonstrated a willingness and ability to mitigate most adverse impacts, the record supports the hearing examiner's finding that the project would nonetheless have a significant adverse visual impact, negatively affecting the unique neighborhood character.

¶88 In Kenart , a planning board denied a Planned Unit Development permit based on a number of findings that either lacked factual support or did not provide a reason for denial. 37 Wn. App. 295 . For example, the board found that the development would result in reduced agricultural lands, but the area was zoned residential. Kenart , 37 Wn. App. at 302 . The board found that there would be increased traffic, but it did not address the applicant's mitigation proposal. Kenart , 37 Wn. App. at 302 -03. In reversing, the court said, "[o]ur concern in this case is that the planning commission may have denied approval of the [Planned Unit Development] as a result of community displeasure rather than for the reasons stated. In every instance the developer either satisfied, or offered a change to satisfy, the concerns raised; yet its application was denied based on findings which are virtually unreviewable." Kenart , 37 Wn. App. at 303 . The findings the court deemed "unreviewable" were that the development would not serve the public interest

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and would interfere with rural life styles. Kenart , 37 Wn. App. at 302 .

¶89 Unlike in Kenart , here no inconsistency exists between the reasons advanced for the denial and the county's zoning ordinances. And the decision is not "unreviewable" as was the Kenart board's bare conclusion that the development would interfere with rural life styles. Kenart , 37 Wn. App. at 302 -03.

¶90 In the instant case, the hearing examiner based his denial on a finding that the WCF would have an undue adverse effect on neighborhood character. That finding, in turn, was based on the project's adverse visual impact. Substantial evidence through testimony of area residents and photographs supports the finding of adverse visual impact. Unlike in Kenart , there is no reason to suspect that the real reasons for the hearing examiner's decision are anything other than those stated. The hearing examiner properly denied the permit based on specific adverse impacts, not generalized community opposition.

D. ATTORNEY FEES

[20]¶91 The County seeks attorney fees on appeal under RCW 4.84.370 , which provides:

(1) . . . [R]easonable attorneys' fees and costs shall be awarded to the prevailing party or substantially prevailing party on appeal before the court of appeals . . . of a decision by a county . . . to issue, condition, or deny a development permit involving a site-specific rezone, zoning, plat, conditional use, variance, shoreline permit, building permit, site plan, or similar land use approval or decision. The court shall award and determine the amount of reasonable attorneys' fees and costs under this section if:

(a) The prevailing party on appeal was the prevailing or substantially prevailing party before the county . . . .

(b) The prevailing party on appeal was the prevailing party or substantially prevailing party in all prior judicial proceedings.

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(2) In 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.

¶92 The Board affirmed the hearing examiner's denial of a special use permit, and the superior court affirmed the Board's decision. Because we affirm the superior court, the County has prevailed at all three levels of review. Thus, we award reasonable attorney fees and costs under RCW 4.84.370.

¶93 Affirmed.\

ARMSTRONG and HUNT , JJ., concur. No. 55081-1-I. Division One. January 23, 2006.]

THE STATE OF WASHINGTON , Respondent , v. JEREMY MONROE KING , Appellant .

[1] Criminal Law - Evidence - Opinion Evidence - Expert Testimony - Credibility of Witness - Pretrial Interview - View of Victim's Understanding To Speak Truthfully. Testimony in a criminal trial by an expert witness who interviewed the crime victim before trial that the victim, in the interview, understood the difference between the truth and a lie and of the need to be truthful does not constitute manifest constitutional error in the form of improper opinion testimony about the victim's credibility if the expert witness does not explicitly state a belief in the truth of the victim's story.

[2] Sexual Offenses - Evidence - Opinion Evidence - Expert Testimony - Credibility of Victim - Child Victim - Pretrial Interview - View of Victim's Understanding To Speak Truthfully. In a prosecution for sexual assault of a child, testimony by an expert witness who interviewed the victim before trial that the victim, in the interview, understood the difference between the truth and a lie and of the need to be truthful does not constitute manifest constitutional error in the form of improper opinion testimony about the victim's credibility if the expert witness does not explicitly state a belief in the truth of the victim's story.

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[3] Criminal Law - Review - Issues Not Raised in Trial Court - Constitutional Rights - "Manifest" Error - Necessity. An appellate court may decline to consider a claim of error raised for the first time in a criminal appeal if it does not involve manifest constitutional error.

Nature of Action: Prosecution for one count of first degree child molestation and one count of first degree rape of a child.

Superior Court: The Superior Court for Snohomish County, No. 03-1-02027-8, James H. Allendoerfer, J., on October 4, 2004, entered a judgment on a verdict finding the defendant guilty of both counts.

Court of Appeals: Holding that the testimony of a police detective, a nurse practitioner, and a Child Protective Services investigator about their views of the truthfulness of the child victim obtained while conducting pretrial interviews of the child did not constitute improper opinion testimony about the victim's credibility, the court affirms the judgment.

Jeremy M. King , pro se.

Oliver R. Davis (of Washington Appellate Project ), for appellant.

Janice E. Ellis , Prosecuting Attorney, and Charles F. Blackman , Deputy, for respondent.

[As amended by order of the Court of Appeals March 7, 2006.]

<</noticeofamendment>¶1 AGID, J. - A jury convicted Jeremy King of one count of first degree child molestation and one count of first degree child rape. During the trial, King moved for a mistrial after a Child Protective Services (CPS) investigator referred to his status as a registered sex offender in

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violation of the trial court's order in limine excluding all references to King's prior sexual offenses. The trial court denied King's motion and later denied his posttrial motion for a new trial. King appeals. Although the improper remark was a serious irregularity, the evidence against King - including the victim's consistent, detailed disclosures and the physical evidence of penetration - was strong. We cannot say that the trial court abused its discretion in failing to grant King a new trial. Further, because the witnesses who interviewed the child did not explicitly say they believed his testimony, any error in allowing their testimony was not manifest and we will not consider the issue for the first time on appeal. We affirm.

FACTS

¶2 In late April and early May of 2003, nine-year-old D.S., his parents, and his two sisters lived in Noel Sterling's Edmonds home along with several other people. Drug use at the house, including by D.S.'s parents, was rampant. It is disputed whether 23-year-old Jeremy King resided at or simply frequented the house. On Friday, April 25, 2003, D.S. was in a minor motorcycle accident while riding with Sterling. On Thursday, May 1, King was arrested at the house for failing to register as a sex offender. On May 23, D.S. told his teacher and a school counselor that Sterling had shot a gun in the house, and the school alerted the police and CPS. Police found drugs, drug paraphernalia, and pornography at the house. CPS removed D.S. and his sisters and later that day placed them with their grandmother, Margaret Seward.

¶3 That same evening, D.S. allegedly told Seward that he had been hurt and touched inappropriately. He did not give details but identified the perpetrator, although Seward was confused about who it was. Seward called CPS, and on May 30 CPS investigator Kara Rozeboom went to Seward's home and interviewed D.S. alone in a bedroom. D.S. told her that "Jeremy" (King) was arrested for "molesting" him.

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He described how he and King rode bikes to the skate park, and after playing tag, King started to touch him all over. King took off D.S.'s pants, stuck his finger and penis into D.S.'s anus, and also touched D.S.'s penis.

¶4 On July 3, 2003, Detective Michael Richardson interviewed D.S., who told him that King had molested him a couple months earlier off a trail in the woods at the skate park. King had touched his crotch and buttocks areas. Both of their clothes were off, and he told King to stop, but King told him that if he told anyone the State would take him away. D.S. said King's penis was long and hard, he put it in his "butt" about five times, and it hurt a little. It felt like King was peeing in his butt, and it was wet and sticky. When King heard someone on the trail, they got dressed, walked back to the skate park, and went back to Sterling's house. D.S. said this happened a day or two before King was arrested, and they never went back to the skate park again. During the drive home after the interview, D.S. told his grandmother that King took him to the woods at the skate park and pushed him onto the ground and held him down. King then put his penis in D.S.'s "rearend," and there was sticky stuff all over that was hard to clean off.

¶5 On July 25, 2003, nurse practitioner Barbara Haner interviewed D.S. at the Providence Everett Sexual Assault Center. Haner asked D.S. if he knew why he needed a checkup, and he told her it was "because of Jeremy." Using a doll, he showed her how King put his penis in his "butt," and he said white sticky stuff came out of King's penis. King told him not to tell anyone. D.S. said it happened just that one time. D.S. also said there were a lot of drugs in his house and that the drugs were made next door or at his house. Haner then asked him if he wanted to tell her anything else, and he said, "if they say my dad did stuff, it's not true, they just heard me say stuff, I said my dad by mistake." Nurse Gretchen Weiss-Elliot then performed D.S.'s physical examination and discovered anal fissures and engorged blood vessels around his anus, both of which could result from a history of constipation, prolonged bearing down, or anal penetration.

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¶6 Detective Richardson conducted a follow-up interview on September 17, 2003. Because D.S. did not want to talk, Richardson asked several leading and suggestive questions about things D.S. had said during their first interview. Eventually D.S. confirmed most of his statements from the first interview, although he said King never told him that the State would take him away if he said anything. D.S. said it happened just that one time, about a week after the motorcycle accident.

¶7 On February 12, 2004, defense investigator Todd Dawson interviewed D.S., who told Dawson he had gone to the skate park several times with King and that the incident had happened during the afternoon and not on a school day. He could not remember exactly what day it was, but it was not the day of the motorcycle accident. He did not see King's penis because he was turned around. King had him get on his hands and knees and then put his penis in his "butt hole."«1»It hurt, and King told him to shut up or he would hit him. After they left the park, he got ice cream with King. He said he never told his grandmother what happened. Dawson checked with D.S.'s school and learned that D.S. was present in class on Monday, April 28, through Thursday, May 1. The previous week he was absent every day except Thursday, April 24.

¶8 Police learned from the defense interview that D.S. said King raped him in two different places off the trail. On March 25, 2004, the police took D.S. to the skate park and he showed them the two places where the rape occurred. The State charged King with one count of first degree child molestation and one count of first degree child rape, occurring on or about April 25, 2003 to May 1, 2003. Before trial, King moved to exclude all references to his being a sex offender or a registered sex offender. The trial court granted the motion, stating that the prosecutor "should do every


«1»D.S. did not tell Dawson about the particulars of the assault in words, but instead wrote them down.


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thing she can to make sure the witnesses [do not] inadvertently mention the defendant's prior record."«2»

¶9 At trial, D.S. testified that he and King would ride their bikes to the skate park and play basketball. One day they took a trail into the woods, and King took his clothes off and then made D.S. take his clothes off. D.S. was sitting down when King touched his penis, and King then had him get on his hands and knees with King behind him. D.S. could not see what was happening, but he felt King's penis touch his "butt" and it hurt. King moved it in and out until he heard people approaching, at which point they moved to a different spot off the trail and King put his penis in D.S.'s butt again. Sticky white stuff came out of King's penis. D.S. could not remember King saying anything to him while King was behind him. That was the only time it happened, and afterwards they went back to Sterling's house. D.S. did not tell anyone about it when they got back because King was there. D.S. did not see King again after he was arrested on May 1.

¶10 D.S. said the incident happened after the day of the motorcycle accident (April 25), and he first told his mother about it a few days afterwards. The second person he told was his grandmother after he went to stay with her. No one other than King had ever done anything like that to him. On cross-examination, D.S. said he went to the park three times with King. He agreed that he told Dawson that the incident happened in the afternoon and did not happen on a school day. King did not tell him to shut up, and they did not stop for ice cream on the way home. He did not see King get arrested on May 1, but someone told him about it. He said that he never told Rozeboom about what happened. D.S. said he heard the word "molest" from television and also overheard his mom and grandmother use that word twice in conversation, once at the grandmother's house and once at Sterling's house.


«2»The parties agreed that King's May 1, 2003 arrest for failure to register would be referred to only as an arrest on a warrant.


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¶11 D.S.'s mother, Kristina Grant, testified that on May 4, 2003, D.S. told her that someone had touched him inappropriately.«3»Grant did not report this to CPS and later lied about it to police, fearing that her failure to disclose would look bad to CPS. She also said that after she heard King had been in a fight in front of D.S. on April 25, 2003 - the same day D.S. was later in the motorcycle accident with Sterling - she did not trust King anymore and did not allow D.S. to go to the skate park with him.

¶12 Seward, Rozeboom, Detective Richardson, Haner, and Dawson all testified about what D.S. told them. Weiss-Elliot said that an anal injury may or may not be evident three months after the incident, and that D.S.'s conditions were consistent with being penetrated. On cross-examination, Weiss-Elliot agreed that things other than anal penetration could have caused D.S.'s condition. During Rozeboom's testimony, the prosecutor asked why she had gone to see D.S. on May 30, 2003:

Q: And as far as [D.S.] is concerned, what was the reason you were called out to see [D.S.] that day [May 30, 2003]?

A: Because the grandmother, Margaret Seward, had told me on the phone on May 28 -

Q: I don't need to know - I'm sorry, I should make my questions more clear. I don't need to know everything Margaret told you. I just need to know what was the concern that brought you out there?

A: That [D.S.] had been molested by a known registered sex offender named Jeremy King.

MR. MCCARDLE [defense counsel]: Objection, nonresponsive. Move to strike.

THE COURT: All right. Well, ladies and gentlemen, she just said a known registered sex offender. She has no knowledge of that. That's something that we've discussed pre-trial. You're to disregard that label and put


«3»Before trial, the court held a child hearsay hearing and ruled that all witnesses were allowed to testify as to what D.S. told them, except Grant, who was allowed to testify under the "hue and cry" doctrine only to the generic fact that D.S. had disclosed abuse to her.


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no weight on her testimony whatsoever on that issue. All right. Let's get back on track please.

Q (By Ms. Kristof [prosecutor]): Did you go out to talk to [D.S.] because you were concerned he had been molested?

A: Yes.

¶13 Shortly thereafter, King moved for a mistrial because Rozeboom's testimony violated the court's order in limine and "the words 'registered sex offender' [had] been linked inextricably with Jeremy King in the jury's mind." The trial court agreed that "suggesting that Mr. King has a prior sex offense in his history is extremely prejudicial during a trial for a sex offense" but ultimately denied King's motion without further instructions to the jury.«4»

¶14 Andrea Mueller testified that she was with King on Sunday, April 27, 2003, from around noon or 1 P.M . until about 8 or 9 P.M . They drove from Edmonds to North Bend and Snoqualmie Falls, had dinner in North Bend, spent some time at her place in Everett, and then she dropped him off in Edmonds. Jamie Swenson, King's ex-girlfriend, testified that she saw a movie with D.S. and several others the afternoon of April 26, 2003. She saw King and D.S. together in the skate park on numerous occasions in the two weeks leading up to April 25, 2003, but did not see them after that. King did not testify.

¶15 The jury convicted King on both counts, and he moved for a new trial based on Rozeboom's remark. The court held a hearing and analyzed the facts under the three-part State v. Escalona «5»test. It ruled that although Rozeboom's statement was a serious irregularity, it did not warrant a new trial. The court sentenced King to 198 months of incarceration for the molestation count and 300 months of incarceration for the rape count, to be served concurrently.


«4»While defense counsel thought a firmer instruction would be better than no further instruction at all, he did not argue with the State's position that such an admonition would be an unfair comment on the evidence.

«5»49 Wn. App. 251 , 742 P.2d 190 (1987).


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I. Opinion Testimony

[1-3]¶16 King argues for the first time on appeal that Detective Richardson, Rozeboom, and Haner vouched for D.S.'s credibility. Experts may not state an opinion about a victim's credibility because such "testimony invades the province of the jury to weigh the evidence and decide the credibility of witnesses."«6»We have previously held that where a witness does not explicitly state his or her belief in the victim's story, the testimony does not constitute manifest constitutional error.«7»But King relies on State v. Kirkman ,«8»Division Two's recent split decision allowing the defendant to raise the issue for the first time on appeal even though a detective never affirmatively stated his belief in the child victim's allegations. We must decide whether to follow our own precedent and Chief Judge Christine Quinn-Brintnall's dissent in Kirkman or the majority opinion in Kirkman .

¶17 In State v. Madison ,«9»Madison did not object at trial to CPS caseworker Schuller-Roth's testimony that the alleged victim's masturbation was " 'typical of a sex abuse victim'; that when [the victim] spoke to her 'it was obvious she was very relieved, very comfortable that she was not needing to maintain the secret', and that [the victim] waited to make her accusations because 'she was very clearly aware of the impact her disclosure would have on the many people whom she loved'."«10»Madison argued the issue could be raised for the first time on appeal because the testimony equaled a statement of belief in the victim's story. Although the statements would properly have been subject to an objection or motion to strike, we held that allowing


«6» State v. Jones , 71 Wn. App. 798 , 812, 863 P.2d 85 (1993) (citing State v. Alexander , 64 Wn. App. 147 , 154, 822 P.2d 1250 (1992); State v. Madison , 53 Wn. App. 754 , 760, 770 P.2d 662, review denied , 113 Wn.2d 1002 (1989)), review denied , 124 Wn.2d 1018 (1994).

«7» Id. at 812-13 (citing Madison , 53 Wn. App. at 762 -63).

«8»126 Wn. App. 97 , 107 P.3d 133, review granted , 155 Wn.2d 1014 (2005).

«9»53 Wn. App. 754 , 770 P.2d 662, review denied , 113 Wn.2d 1002 (1989).

«10» Id. at 760.


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Schuller-Roth's testimony was not manifest constitutional error because she "neither asserted that Madison was guilty nor explicitly asserted that she believed [the victim's] story."«11»

¶18 In State v. Jones ,«12»the victim told CPS caseworker Mitchell that Jones had sexually abused her. Jones did not object at trial to Mitchell's testimony that the victim said to her, " 'Believe me, believe me, I am telling you that this happened,' " and that she replied, " 'I believe you.' "«13»We held that Mitchell's statement, taken in the context of the surrounding testimony, was intended to reassure the child to encourage her to respond and it was not a statement to the jury that Mitchell believed her. We noted that even if the remark were the proper subject of an objection, this issue could not be raised for the first time on appeal unless it was manifest constitutional error. Citing Madison , we held that Jones could not raise the issue because "Mitchell did not expressly state to the jury that she believed [the victim] . . . ."«14»

¶19 In Kirkman , Detective Kerr testified that he gave the victim a competency test to determine if she could distinguish between truth and lies. The State asked him if the victim understood the importance of telling the truth and whether she could distinguish between the truth and a lie.«15»He responded that she could, and she promised to tell him the truth. Division Two held that even though Kerr did not offer his direct opinion on the victim's credibility, by telling the jury that he tested her competency and truth


«11» Id. at 763.

«12»71 Wn. App. 798 .

«13» Id. at 804. Jones did object to the prosecution's question that elicited Mitchell's statement that " 'I felt that this child had been sexually molested by [Jones] at that point.' " Id. We held that although this was an explicit statement of belief in Jones' guilt, the error was harmless because other evidence of Jones' guilt was overwhelming. Id. at 813.

«14» Id. at 813.

«15» Kirkman , 126 Wn. App. at 104 -05.


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fulness, he essentially told the jury that the victim told the truth when she gave her account of events to him.«16»

¶20 In her dissent in Kirkman , Chief Judge Quinn-Brintnall argued that the majority incorrectly considered the issue for the first time on appeal because Kerr's testimony

expressed his personal belief that he performed a competency evaluation, determined that [the victim] was capable of distinguishing between the truth and a lie, and obtained a promise from her that she would tell the truth. But he never gave an opinion on [the victim's] credibility or expressed his belief in the truth of her account.

. . . The testimony does not usurp the jury's authority any more than, for example, the trial court's determination of a child victim's competency or the process of having the child take an oath and promise to tell the truth, which occur in the jury's presence. . . .«17»

¶21 Here, Detective Richardson's and Rozeboom's testimony is similar to Kerr's testimony in Kirkman .«18»Richardson testified about his child-interview training, and how he begins every interview by establishing ground rules to ensure the child knows the difference between a truth and a lie and that they know they are only supposed to tell him the truth. The State asked Richardson if he was satisfied that D.S. understood the ground rules for the interview, and Richardson said yes. After establishing the ground rules, Richardson began the interview by asking D.S. basic questions to show "his competency, that he understands the questions asked and that he's being truthful by his responses he's giving . . . ."«19»


«16» Id. at 105.

«17»LAWS OF 2004, ch. 68, § 1.

«18»Haner testified that she used different treatment interview protocols for children and adults, but her interview of D.S. did not address whether D.S. knew the difference between a truth and a lie, or whether he would tell her the truth. Her testimony cannot remotely be considered an opinion on D.S.'s credibility.

«19»Basic questions included what D.S.'s name was, date of birth, where he lived and where he went to school.


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¶22 Rozeboom described similar child-interview training and said she would make sure a child agreed to tell her the truth during an interview. The State asked her if she was satisfied that D.S. knew the difference between a truth and a lie, and if D.S. agreed to tell her the truth. She answered yes in both regards.

¶23 We continue to adhere to Madison and Jones and agree with Chief Judge Quinn-Brintnall's dissent in Kirkman . Richardson and Rozeboom told the jury they believed D.S. could distinguish a truth from a lie and that he had conveyed to them that he would tell the truth. This did not infringe on the jury's role as the ultimate judge of D.S.'s credibility. Even if D.S. told Richardson and Rozeboom that he would tell the truth, it was left to the jury to decide if he actually did so. Applying Chief Judge Quinn-Brintnall's reasoning, D.S.'s agreeing to tell Richardson and Rozeboom the truth was no different from his swearing an oath in open court to tell the truth. Richardson and Rozeboom did not explicitly state to the jury that they believed D.S.'s account. There is no error, and even if there were, it is not manifest and may not be raised for the first time on appeal.

¶24 We affirm.

¶25 The remainder of this opinion has no precedential value. Therefore, it will not be published but has been filed for public record. See RCW 2.06.040 ; CAR 14.\

GROSSE and ELLINGTON , JJ., concur.

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