[No. 34418-1-II. Division Two. March 20, 2007.]
JEFF GRIFFIN , Appellant , v. THE THURSTON COUNTY BOARD OF HEALTH , Respondent .
[1] Building Regulations - Land Use Regulations - Judicial Review - Land Use Petition Act - Applicability - In General. The Land Use Petition Act (chapter 36.70C RCW) governs judicial review of local land use decisions.
[2] Building Regulations - Land Use Regulations - Judicial Review - Land Use Petition Act - Appellate Review - Role of Appellate Court. 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) sits in the same position as the superior court and applies the review standards of RCW 36.70C.130 directly to the administrative record.
[3] Building Regulations - Land Use Regulations - Judicial Review - Land Use Petition Act - Appellate Review - Error of Law - Standard of Review. Whether a local land use decision involves an erroneous interpretation of the law, warranting relief under RCW 36.70C.130 (1)(b), is a question of law that an appellate court reviews de novo.
[4] Building Regulations - Land Use Regulations - Judicial Review - Land Use Petition Act - Appellate Review - Constitutional Rights - Standard of Review. Whether a local land use decision violates a constitutional right, warranting relief under RCW 36.70C.130 (1)(f), is a question of law that an appellate court reviews de novo.[5] 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
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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 sufficient to convince an unprejudiced, rational person that the finding is true.
[6] Building Regulations - Land Use Regulations - Judicial Review - Land Use Petition Act - Findings of Fact - Scope of Review - In General. Under the substantial evidence standard of RCW 36.70C.130 (1)(c) of the Land Use Petition Act for reviewing findings of fact entered by a local decision maker in a land use case, the reviewing court views the evidence and the reasonable inferences therefrom in the light most favorable to the party who prevailed in the highest forum that exercised fact-finding authority.
[7] Municipal Corporations - Ordinances - Construction - Legislative Intent - Plain Meaning. When construing a municipal ordinance, a court first attempts to give effect to the plain meaning of the words used in the ordinance. If the provision's meaning is plain on its face, there is no need for interpretation and effect will be given to the legislative body's plain meaning. To ascertain a provision's plain meaning, a court considers the ordinance as well as other provisions in the same code. Only when no plain, unambiguous meaning appears through this inquiry does the court resort to aids of statutory construction.
[8] Municipal Corporations - Ordinances - Construction - Superfluous Provisions. Municipal ordinances must be interpreted so that all the language used is given effect, with no portion rendered meaningless or superfluous.
[9] Building Regulations - Building Permit - Conditions - Meet All Ordinance Requirements - Waivers and Setbacks - Effect. A municipal ordinance that conditions the issuance of a building permit on the property owner's meeting "all requirements" delineated in the ordinance cannot be satisfied by a property owner for whom certain such requirements have been waived or set back when otherwise interpreting "meets all requirements" would render the phrase superfluous.
[10] Building Regulations - Building Permit - Conditions - Meet All Ordinance Requirements - Waivers and Setbacks - Proof - Sufficiency. In the absence of a definition of the term "waiver" in the code at issue, evidence that a property owner submitted an application for relief from certain land development requirements that the receiving agency labeled a "request for waiver," that the request was processed by a case manager who filed a "report form for waiver request" in support thereof, and that the request was granted by a decision maker who identified the application as one for "waivers" and "setbacks" is sufficient to support a finding that such requirements were waived.
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[11] Building Regulations - Building Permit - Conditions - Meet All Ordinance Requirements - Waivers and Setbacks - Alternate Means of Satisfying Requirements - Validity. For purposes of a municipal ordinance that conditions the issuance of a building permit on the property owner's meeting "all requirements" delineated in the ordinance, a waiver or setback of a requirement does not constitute an alternate means of satisfying the requirement if the ordinance does not provide for alternate means.
[12] Building Regulations - Land Use Regulations - Validity - Review - Standard of Review. The constitutionality of a land use ordinance and the application of the ordinance in a particular case are reviewed de novo by an appellate court.
[13] Building Regulations - Land Use Regulations - Vagueness - Test - In General. A land use ordinance that provides fair warning and allows a person of common intelligence to understand its meaning is not unconstitutionally vague. The ordinance need not meet unreasonable standards of specificity to satisfy constitutional requirements.
[14] Building Regulations - Land Use Regulations - Vagueness - Test - Particular Conduct. In evaluating a vagueness challenge to a land use ordinance, a court analyzes the ordinance as applied to the particular facts of the case, not for facial vagueness.
[15] Municipal Corporations - Ordinances - Validity - Presumption - Burden of Proof - Degree of Proof. A duly enacted municipal ordinance is presumed to be constitutional and will not be invalidated unless the party making the challenge proves the ordinance to be unconstitutional beyond a reasonable doubt.
[16] Building Regulations - Building Permit - Conditions - Meet All Ordinance Requirements - Vagueness - As Applied to Property Owner Who Received Waivers and Setbacks. A municipal ordinance that conditions the issuance of a building permit on the property owner's meeting "all requirements" delineated in the ordinance is not unconstitutionally vague as applied to a property owner who has received waivers and setbacks in lieu of satisfying all requirements.
[17] Building Regulations - Land Use Regulations - Vested Rights - Effect. Under the doctrine of vested rights, a land use application is considered under the land use statutes and ordinances in effect at the time the application was submitted.
[18] Building Regulations - Land Use Regulations - Vested Rights - Scope - Erroneous Interpretation of Law. The vested rights doctrine does not permit a land use application to be considered according to a prior erroneous interpretation of a statute or ordinance in effect at the time the application was submitted.
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[19] Administrative Law - Judicial Review - Issues Not Presented to Agency - In General. In general, a court reviewing an administrative decision will decline to consider issues not raised in the administrative proceeding, particularly with regard to issues involving highly fact specific inquiries.
Nature of Action: A property owner sought judicial review under the Land Use Petition Act of a county board of health's denial of the owner's petition for a permit to build a sewage system on his property. Under county ordinances, the owner's lot is one-fourth the size normally required before the county will grant a permit and the county may grant a permit on an undersized lot only if the petitioner meets three criteria, including meeting "all requirements" other than the minimum lot size delineated in the ordinance. The board denied the owner's application for permit because he had received five waivers and setbacks with respect to certain requirements.
Superior Court: The Superior Court for Thurston County, No. 05-2-01587-7, Gary Tabor, J., on February 3, 2006, entered a judgment reversing the board's decision.
Court of Appeals: Holding that the ordinance does not allow the board to grant a permit on an undersized lot where the petitioner has received waivers and setbacks of applicable requirements and that the ordinance is not unconstitutional, the court reverses the judgment and remands the case for reinstatement of the board's denial of the application for a permit.
Allen T. Miller and Bruce D. Carter , for appellant .
Matthew B. Edwards ( Owens Davies, P.S. ), for respondent .
¶1 Quinn-Brintnall, J. - The Thurston County Board of Health (Board) denied Jeff Griffin a permit to build an
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on-site sewage system (OSS) on his Steamboat Island lot. Griffin's lot is one-fourth the size normally required before the Thurston County Public Health and Social Services Department (Department) will grant an OSS permit. The Department may grant an OSS permit on an undersized lot if the petitioner meets three criteria, including that the petitioner "meets all requirements" in the regulations other than the minimum lot size. THURSTON COUNTY SANITARY CODE (TCSC) 21.4.5.3. The Board denied Griffin's permit because he had received five waivers and setbacks. A superior court reversed. We hold that the "meets all requirements" provision governing the health officer's authority to issue an OSS permit to undersized lots excludes waivers and setbacks. Accordingly, we reverse the superior court's decision and remand with instructions that it reinstate the Board's denial of Griffin's permit.
FACTS
THE PROPERTY
¶2 Griffin owns a waterfront lot on Steamboat Island, an eight-acre island in Thurston County that has about 42 existing homes on 126 lots. Griffin's lot is vacant and undeveloped but is zoned residential. It is 2,850 square feet: 25 feet wide and 114 feet deep. Before Griffin purchased the property, his realtor warned him that the lot was too small for a septic tank permit and that Griffin would not be able to build a house on the property. Nevertheless, Griffin purchased the lot, applied for an OSS permit, and planned to build a small house.
HEALTH OFFICER
¶3 During his OSS permit application process, Griffin requested that he be relieved of the responsibility of complying with several setback and site requirements of the TCSC. Specifically, he requested (1) a waiver of the winter water table evaluation, (2) a waiver reducing the separation between the septic tank and pump chamber from 10 to 5 feet, (3) a horizontal setback between the disposal compo
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nent and building foundation from 10 to 2 feet, (4) a horizontal setback between the disposal component and adjacent property line from 5 feet, (5) a horizontal setback between the disposal component and the surface water from 100 feet to 75 feet, and (6) a reduction in the minimum design flow for a single-family residence from 240 to 120 gallons per day. Citing TCSC article IV, section 21.4.5, the health officer granted Griffin's six requests. The health officer indicated his belief that if an application met the criteria under TCSC section 21.4.5,«1»he was obligated to grant an OSS permit and he did so.
HEARING OFFICER
¶4 Several of Griffin's neighbors appealed the decision to the Department. The hearing officer held that section 21.4.5 was a discretionary provision and the health officer should not have granted a permit to Griffin because (1) minimum land area and density are significant health issues; (2) Griffin's lot is much smaller and more dense than the typical lot size and density; (3) the waivers and setbacks that Griffin received increased the health concern; and (4) thus, it is proper to take a conservative position on whether to exercise discretion and grant a waiver. The hearing officer also found that the health officer should not have waived the winter water study. The Department's hearing officer denied Griffin's permit.
«1»TCSC article IV, section 21.4.5 provides that the health officer may:
Permit the installation of an OSS, where the minimum land area requirements or lot sizes cannot be met, only when all of the following criteria are met:
21.4.5.1 The lot is registered as a legal lot of record created prior to January 1, 1995; and
21.4.5.2 The lot is outside an area of special concern where minimum land area has been listed as a design parameter necessary for public health protection; and
21.4.5.3 The proposed system meets all requirements of these regulations other than minimum land area.
Clerk's Papers at 120 (emphasis added).
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BOARD
¶5 Griffin appealed to the Board. Thurston County op-posed Griffin's motion and the interested parties cross-appealed.
¶6 The Board adopted the hearing officer's findings of fact, conclusions, and decision. But the Board apparently disagreed with the hearing officer's conclusion that the winter water study evaluation was erroneously waived. And the Board underlined the word "may" when it reprinted the ordinance but it did not explicitly base its ruling on its discretionary authority to deny Griffin a permit under section 21.4.5. Instead, it held that the phrase "meets all requirements" in section 21.4.5.3 is not fulfilled if the petitioner is granted waivers and setbacks. It reasoned that the word "requirements," construed conservatively in order to protect the public's health, excludes waivers and setbacks.
¶7 One Board member dissented, saying that the phrase "all requirements" is ambiguous and that the Board should construe the statute in Griffin's favor because he complied with the health officer's requests. Through the other two votes, the Board affirmed the Department's permit denial.
SUPERIOR COURT
¶8 Griffin then appealed to superior court. He argued that the Board erred in its decision and that the ordinance is unconstitutionally vague and violated his vested and substantive due process rights. The superior court ruled orally:
I'm going to have to disagree with the County Commissioners or at least two of the three in this particular case. I do not find that that language, specifically the term "all requirements," means requirements without waiver. A requirement is a specific standard, and often for standards to apply there may be exceptions. A requirement or rule may still be met if there is an exception to the standard.
Report of Proceedings at 5. Although the superior court reversed the Board's decision, it found no merit in Griffin's
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assertions that his constitutional rights were violated. Griffin appeals.
¶9 This appeal, filed under the Land Use Petition Act (LUPA), chapter 36.70C RCW, requires that we answer two questions: (1) does the plain language of the TCSC, article IV, section 21.4.5.1, allow the Board to grant an OSS permit on an undersized lot when the petitioner has received waivers and setbacks and (2) is the ordinance unconstitutional?
ANALYSIS
STANDARD OF REVIEW
[1, 2]¶10 LUPA governs judicial review of land use decisions. RCW 36.70C.030 . As all parties agree, at issue here is a "land use decision" governed by LUPA because Griffin appeals his "application for a project permit . . . required by law before [his] real property may be improved, developed, modified, sold, transferred, or used." RCW 36.70C.020(1)(a). When reviewing a land use decision, we stand in the same position as the superior court and review the administrative record that was before the Board. Pavlina v. City of Vancouver , 122 Wn. App. 520 , 525, 94 P.3d 366 (2004); Citizens for Responsible & Organized Planning v. Chelan County , 105 Wn. App. 753 , 758, 21 P.3d 304 (2001). LUPA requires reversal of the Board's land use decision if the party seeking relief shows that:
(b) The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise;
(c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court; [or]
. . . .
(f) The land use decision violates the constitutional rights of the party seeking relief.
RCW 36.70C.130 (1).
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[3-6]¶11 Standards (b) and (f) present questions of law that we review de novo. 7 WASH. STATE BAR ASS'N, WASHINGTON REAL PROPERTY DESKBOOK § 111.4(9), at 111-25 (3d ed. 1996) (citing Freeburg v. City of Seattle , 71 Wn. App. 367 , 376, 859 P.2d 610 (1993)). Standard (c) concerns a factual determination that we review for substantial evidence. 7 WASH. STATE BAR ASS'N, WASHINGTON REAL PROPERTY DESKBOOK § 111.4(9), at 111-25.
¶12 "Substantial evidence" is evidence sufficient to convince an unprejudiced, rational person that a finding is true. Isla Verde Int'l Holdings, Inc. v. City of Camas , 146 Wn.2d 740 , 751-52, 49 P.3d 867 (2002). On review, we weigh all inferences in a light most favorable to the party that prevailed in the highest forum that exercised fact-finding authority. Thurston County prevailed at the Department hearing, the highest forum with fact-finding authority, and thus we view all evidence and reasonable inferences in its favor.
CONSTRUCTION OF ORDINANCE
[7-9]¶13 Under the ordinance here at issue, the health officer has discretion to permit an OSS installation only if three criteria are met. TCSC art. IV, § 21.4.5.1. Under the third criterion, the health officer has discretion to grant an OSS permit for a lot less than the minimum land size only if "[t]he proposed system meets all requirements of these regulations other than minimum land area." Clerk's Papers (CP) at 120. In reviewing this criterion, the Board excluded waivers and setbacks that landowners had received in evaluating whether small lots satisfied "all other requirements." The Board was correct.
¶14 Section 21.4.5 of the TCSC provides that the health officer may:
Permit the installation of an OSS, where the minimum land area requirements or lot sizes cannot be met, only when all of the following criteria are met:
21.4.5.1 The lot is registered as a legal lot of record created prior to January 1, 1995; and
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21.4.5.2 The lot is outside an area of special concern where minimum land area has been listed as a design parameter necessary for public health protection; and
21.4.5.3 The proposed system meets all requirements of these regulations other than minimum land area.
CP at 120 (emphasis added).
¶15 Because Griffin's property was one-fourth of the minimum lot size required for the health officer to grant an OSS permit, the health officer could grant the permit only if the criteria in sections 21.4.5.1, 21.4.5.2, and 21.4.5.3 were satisfied. See TCSC, art. IV, § 21, table VII at 4-58 (setting minimum lot size at 12,500 square feet, where Griffin's lot is 2,850 square feet).
¶16 When reviewing ordinances, we first attempt to give effect to the plain meaning of the words. If a provision's meaning is plain on its face, there is no need for interpretation and we give effect to the legislative body's plain meaning. Dep't of Ecology v. Campbell & Gwinn, L.L.C. , 146 Wn.2d 1 , 9-10, 43 P.3d 4 (2002). To ascertain a provision's plain meaning, we examine the ordinance as well as other provisions in the same code. Sheehan v. Cent. Puget Sound Reg'l Transit Auth. , 155 Wn.2d 790 , 797, 123 P.3d 88 (2005). Only when no plain, unambiguous meaning appears through this inquiry do we resort to aids of statutory construction. Campbell & Gwinn , 146 Wn.2d at 12 .
¶17 We must give effect to all provisions of an ordinance and may not interpret an ordinance in a way that renders a portion meaningless or superfluous. Cobra Roofing Servs., Inc. v. Dep't of Labor & Indus. , 157 Wn.2d 90 , 99, 135 P.3d 913 (2006). Under this principle, the "all requirements" portion of the ordinance at issue here cannot include "requirements" that have been waived or set back. If "all requirements" included waivers and setbacks, the language would be meaningless and superfluous. Every OSS petitioner, regardless of lot size, is required to comply with the TCSC's provisions or else obtain waivers and setbacks. Thus, the phrase is meaningful only if the application's sole deficiency is lot size. The Board properly construed the
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ordinance to mean that an undersized lot must meet "all requirements" without waivers and setbacks in order to trigger the health officer's authority to exercise discretion and grant an OSS permit to an undersized lot.
SUBSTANTIAL EVIDENCE
[10]¶18 We now review the finding that Griffin received waivers and setbacks for substantial evidence. Griffin asserts that the five variances that he received were not waivers but were, instead, "equivalent methods for achieving compliance with [the TCSC's] requirements." Br. of Resp't at 32-33. If Griffin did not receive waivers, the Board could not properly deny Griffin an OSS permit on the ground that the ordinance's "all requirements" provision was not fulfilled.
¶19 As used here, "waiver" is not a precise term of legal significance but, instead, is a term that the Department employs in common use. See BRYAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE 923 (2d ed. 1995) (defining "waiver" as ordinarily meaning "the relinquishment of a legal right" but emphasizing that the word is often used as "an imprecise and generic term"). The Department labeled Griffin's applications "Thurston County On-Site Sewage-Systems Request for Waiver." Administrative R. (AR) at 18. In reviewing Griffin's applications, the case manager filed a "Report Form for Waiver Request." AR at 22. And the health officer similarly referred to the Department's actions as "waivers" and "setbacks." This evidence is substantial and supports the Board's finding that Griffin received waivers rather than meeting certain requirements. Thus, he did not fulfill the ordinance's third criterion: that he satisfy all requirements other than lot size.
[11]¶20 Griffin also mischaracterizes the TCSC as allowing a petitioner to satisfy TCSC requirements via one of several equivalent methods. Griffin requested and received an abdication of the Department's authority to require him to submit a winter water study under TCSC section 11.4.1 as well as four reductions from the "minimum horizontal
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separations" listed in TCSC section 10.1, table 1. The TCSC gives the Department discretion to waive these requirements, but it does not list equivalent methods of compliance. See TCSC § 10.1, table 1, and § 11.4.1. Because Griffin mischaracterizes the TCSC's structure, his argument that waivers are alternate means of satisfying TCSC requirements fails. Griffin does not argue that he did not receive setbacks. He received both waivers and setbacks in lieu of satisfying TCSC requirements. Thus, the Board did not err when it concluded that the hearing officer lacked authority to grant Griffin an OSS permit for his undersized lot because Griffin did not satisfy all requirements except lot size. Because these issues are dispositive, we do not reach the remaining issues of whether the Board properly granted waivers and setbacks.
CONSTITUTIONALITY
[12]¶21 Griffin cross-appeals and asserts three constitutional challenges to the TCSC under the doctrines of vagueness, vested rights, and substantive due process. We review de novo the constitutionality of a land use ordinance and decision. RCW 36.70C.130 (1)(f). Griffin has not demonstrated that the TCSC is unconstitutional on its face or as applied.
VAGUENESS
[13-15]¶22 Griffin first asserts that the TCSC is unconstitutionally vague. A land use ordinance that provides fair warning and allows a person of common intelligence to understand the law's meaning does not violate a party's constitutional rights. Young v. Pierce County , 120 Wn. App. 175 , 182, 84 P.3d 927 (2004). Courts do not require an unreasonable standard of specificity and we judge the ordinance as applied, not for facial vagueness. Young , 120 Wn. App. at 182 . A duly enacted ordinance is presumed constitutional, and the party challenging it must demonstrate that the ordinance is unconstitutional beyond a reasonable doubt. Kitsap County v. Mattress Outlet , 153 Wn.2d 506 , 509, 104 P.3d 1280 (2005).
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[16]¶23 Griffin has not met his burden to prove that the TCSC, article IV, section 21.4.5.1 is unconstitutionally vague. He argues only that (1) he would interpret the ordinance differently, (2) the Board previously interpreted the ordinance differently, and (3) he invested a lot of money because he believed the Board would grant him a permit. Initially, we note that Griffin's real estate agent told him that the property was too small to build on before he purchased it. Moreover, the provision "meets all requirements" allows a person of common intelligence to understand that a landowner who seeks an OSS permit for an undersized lot cannot receive waivers and setbacks in lieu of satisfying all requirements other than lot size. Young , 120 Wn. App. at 182 . This reading of the plain language is consistent with long-standing principles of statutory construction. See Davis v. Dep't of Licensing , 137 Wn.2d 957 , 963-64, 977 P.2d 554 (1999). The ordinance is not vague.
VESTED RIGHTS
[17, 18]¶24 Griffin next challenges the ordinance's application under the vested rights doctrine. "Vesting" refers generally to the notion that an agency may only consider a land use application under the statutes and ordinances in effect when the applicant submitted his application. Friends of the Law v. King County , 123 Wn.2d 518 , 522, 869 P.2d 1056 (1994). Griffin asserts that because the Board previously interpreted the TCSC, article IV, section 21.4.5.1 differently, he had a right to rely on its continued erroneous interpretation of the ordinance and that, therefore, the Board violated his vested rights. But the vested rights doctrine relates to implementing new laws, not correcting a misinterpretation of existing law. See Friends of the Law , 123 Wn.2d at 522 . TCSC, article IV, section 21.4.5.1 was not only in effect when Griffin submitted his land use application, it was in effect when he bought the property with notice that it was unbuildable. The vested rights doctrine does not apply in the manner Griffin suggests.
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SUBSTANTIVE DUE PROCESS
[19]¶25 Last, Griffin claims that the Board violated his substantive due process rights. Generally, an issue not raised in a contested case before the Board may not be raised for the first time on review of the Board's decision. Buechel v. Dep't of Ecology , 125 Wn.2d 196 , 201 n.4, 884 P.2d 910 (1994). Substantive due process analysis is highly fact specific. See Guimont v. Clarke , 121 Wn.2d 586 , 608-09, 854 P.2d 1 (1993), cert. denied , 510 U.S. 1176 (1994). Griffin did not raise this issue before the Board and without a full factual development on the record, we cannot fairly address this claim. Thus, Griffin waived this claim. Accord Buechel , 125 Wn.2d at 201 n.4.
¶26 Reversed and remanded.\
BRIDGEWATER and PENOYAR , JJ., concur.