Mark And Patricia Mayko v. Pacific County ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
January 18, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
MARK AND PATRICIA MAYKO, No. 48308-4-II
Respondents,
vs. UNPUBLISHED OPINION
PACIFIC COUNTY,
Appellant.
MAXA, A.C.J. – Pacific County appeals the superior court’s decision on a Land Use
Petition Act (LUPA) appeal filed by Mark and Patricia Mayko. The Maykos sought review in
the superior court of the Board of Pacific County Commissioners’ land use decision denying
their requested variance, under the Pacific County Critical Areas and Resource Lands (CARL)
ordinance, to build a house completely within a wetland buffer area. The superior court held that
the Commissioners’ land use decision was erroneous and that the Maykos were entitled to a
variance.
We hold that (1) the Commissioners’ land use decision was not erroneous because they
correctly concluded that the Maykos did not satisfy at least two of the six required criteria to
obtain a variance under the CARL ordinance, (2) the Commissioners did not use unlawful
procedure or fail to follow prescribed process when denying the Maykos’ variance request, and
(3) the variance denial did not violate the Maykos’ Fifth Amendment rights. Accordingly, we
No. 48308-4-II
reverse the superior court and affirm the Commissioners’ denial of the Maykos’ request for a
variance.
FACTS
The Maykos own a parcel of property adjacent to Willapa Bay on the Long Beach
peninsula on which they planned to build a 2,400 square foot single family house with an onsite
septic system. The Maykos’ lot is part of a short platted parcel in the Espy plat. Their property
is 900 feet long and approximately 131 feet wide. There is an existing driveway providing
access to the property.
Existence of Wetlands and Variance Request
There are wetlands on and adjacent to the Maykos’ lot. The CARL ordinance restricts
development on and near wetlands. Because the Maykos’ proposed home would be within 100
feet of a wetland, the CARL ordinance required them to conduct a wetland delineation and
submit a report to the Department of Community Development. They hired hydrogeologist
Robert Bogar to conduct this wetland delineation and prepare a report. Bogar’s report
concluded that there were category III wetlands on the Maykos’ property that required a 50 foot
buffer zone, leaving only 25 feet of developable property.
Matt Reider, a planner at the Department of Community Development, reviewed Bogar’s
wetland delineation report and sent the Maykos a letter in response. He noted that because of the
required wetland buffer the Maykos “only have 25 feet from the western property line to
develop.” Clerk’s Papers (CP) at 247. He further stated “[a]t this time Pacific County prohibits
development that occurs outside this 25 foot area extending from the western property line. No
development shall occur within the 50 foot buffer or any wetland area. A Critical Areas and
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Resource Lands Variance Application is available at the Department of Community
Development offices.” CP at 247. After receiving Reider’s letter, the Maykos filed a variance
application.1
The Maykos’ variance request described their proposed building plan and how they
intended to mitigate the impact of their building project. The building site would sit entirely
within a wetland buffer. They proposed building the house on the upland side of their property
in order to prevent direct impact on the wetland. The Maykos acknowledged that onsite
mitigation would not be possible because there was not enough land outside of the buffer on their
lot. But they offered to purchase offsite in-kind mitigation credits from the Long Beach
Mitigation Bank in order to compensate for their encroachment on the buffer.
Hearing Examiner Ruling
On July 3, 2014, a hearing examiner conducted a public hearing on the Maykos’
requested variance. Reider provided a staff report and testimony regarding the requested
variance. Mark Mayko testified in support of the variance. Bogar also testified and presented
scientific opinions. Two members of the public, Dick Sheldon and Ann LeFors, testified in
opposition to the variance.
The hearing examiner denied the Maykos’ requested CARL variance, finding that the
Maykos failed to meet five of the six criteria needed for a variance.
1
At some point before the Commissioners’ hearing, the Department of Ecology amended the
wetland delineation on the Maykos’ property from a category III wetland to a category II
wetland. This change in classification increased the required wetland buffer setback from 50 feet
to 75 feet. The practical effect was that the Maykos’ lot was now entirely covered by wetlands
and wetland buffers.
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Appeal to County Commissioners
The Maykos sought de novo review by the Commissioners of the hearing examiner’s
decision. At a review hearing, the Commissioners heard testimony from Reider, the Maykos,
Bogar, Tim Haderly, Sheldon, and LeFors. They also incorporated into their review all the
testimony provided before the hearing examiner at the July hearing.
Reider testified that the Maykos’ proposed home would not negatively impact any
wetlands, but would encroach on wetland buffers. He said that the Maykos’ proposal to buy
mitigation bank credits was “a guarantee of preservation of another wetland site” and that the
county in the past had approved the purchase of mitigation bank credits as an acceptable form of
mitigation. CP at 25. Reider’s staff report outlined each of the six criteria for a CARL ordinance
variance, but did not make any recommendation regarding the variance.
Bogar testified as a hydrogeologist and wetland expert. He testified that the wetland on
and near the Maykos’ lot was a “closed depressional wetland.” CP at 33. There was a berm
dividing the wetland from the Maykos’ upland property and any runoff from the Maykos’ lot
would filter through soil and sand before reaching the wetland. Bogar thought that the berm
would be “more than adequate to act as a treatment system for anything that happens and
anything that might occur to impact wetlands immediately adjacent to the property.” CP at 33.
Bogar also provided a map of the Espy plat and noted that all the Espy parcels were
similar in shape except three that had been short-platted. And he noted that the Maykos’
property was distinct from the other short plats within that parcel because it had a driveway
providing access. Bogar said that because the driveway was already there, the Maykos would
not have to directly impact wetlands in order to build one.
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Bogar presented evidence of a variance that had been granted to build a house on another
property bordering Willapa Bay wetland. That property was nine miles from the Maykos’
property. But Bogar testified that it was similar in that it was next to a Willapa Bay wetland,
impacted only buffers and not the wetland itself, and wetland credits were purchased from a
mitigation bank.
Regarding mitigation, Bogar noted that there was no way to avoid or minimize building
on wetland buffers because the entire property was designated as a buffer. But he suggested that
the Maykos could buy additional offsite mitigation bank credits or implement a drainage plan to
further mitigate runoff effects onsite.
Haderly testified on behalf of the Long Beach Mitigation Bank. He testified that the
Maykos were eligible to purchase wetland credits for their property.
Sheldon testified on behalf of the Willapa Bay Oyster Growers Association and provided
a number of objections to the Maykos’ variance request. He stated that he had been active in
monitoring property development in the area for many years and had previously challenged other
development proposals. Sheldon said he was not aware of any variances that had been granted to
properties in the area, but that he knew of some that had been denied (although he admitted they
were slightly different situations). Sheldon stated that he was concerned that granting the
Maykos a variance would set a precedent.
LeFors also testified as an interested member of the public. She went through each of the
variance criteria and stated that in her opinion the Maykos could only arguably meet four of the
six criteria. Regarding the first criterion, she said that the Maykos’ property did not have any
special circumstances peculiar to the property, because all 18 bayside properties in the Espy plat
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were platted at the same time and shared similar topography. She said that there were properties
all over the county that similarly sat entirely within wetland buffers like the Maykos’ property.
And LeFors noted that the Maykos’ property was a legal non-conforming lot just like all the
other lots in their plat.
LeFors stated that regarding the second criterion, the literal interpretation of the CARL
ordinance would not deny the Maykos rights commonly enjoyed by other property owners in
compliance with the ordinance because all properties near wetlands are denied development
rights. LeFors also stated that she was concerned that the Maykos’ plan to buy mitigation bank
credits was not sufficient because the Maykos had not shown that they considered better
mitigation options that would actually reduce their impact, rather than just compensate for it.
The Commissioners entered findings of fact and conclusions of law and denied the
Maykos’ variance request. The Commissioners concluded that the Maykos could not satisfy five
of the six variance criteria.
Appeal to Superior Court
The Maykos filed an appeal in the superior court under LUPA seeking review of the
Commissioners’ land use decision. The superior court examined the record from the hearing
before the Commissioners and the hearing examiner’s hearing.
On October 30, 2015, the superior court ruled that the Commissioners’ denial of the
variance was erroneous because the Maykos had provided substantial evidence to meet each of
the six required criteria to obtain a CARL ordinance variance. Accordingly, the superior court
reversed the Commissioners’ decision and ordered that the Maykos be granted a variance.
The County appeals the superior court’s ruling.
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ANALYSIS
A. LUPA STANDARDS FOR RELIEF
LUPA governs judicial review of land use decisions. Whatcom County Fire Dist. No. 21
v. Whatcom County, 171 Wash. 2d 421, 426, 256 P.3d 295 (2011). We sit in the same position as
the superior court and review the administrative body’s land use decision based on the record
before that body. Id. On appeal, the party who filed the LUPA petition has the burden of
establishing that the land use decision was erroneous even if that party prevailed in the superior
court. Quality Rock Products, Inc. v. Thurston County, 139 Wash. App. 125, 134, 159 P.3d 1
(2007). As a result, the Maykos have that burden here.
RCW 36.70C.130 provides the standards for granting relief under LUPA. We can grant
relief only if the party challenging the administrative decision satisfies the burden of establishing
that one of six statutory standards has been 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;
(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).
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No. 48308-4-II
We use a different standard of review depending on which of the six standards apply.
Whatcom County, 171 Wash. 2d at 426-27. Standards (a), (b), (e), and (f) present questions of law
and therefore are reviewed de novo. Id. at 426. For standard (c), we view the facts and
inferences in the light most favorable to the party that prevailed in the highest fact-finding forum
and ask whether there is a sufficient quantum of evidence in the record to persuade a reasonable
person of the truth of the declared premise. Phoenix Dev., Inc. v. City of Woodinville, 171
Wash. 2d 820, 828-29, 256 P.3d 1150 (2011). For standard (d), an application of law to facts is
“clearly erroneous” if after reviewing all evidence we are left with the definite and firm
conviction that a mistake has been committed. Whatcom County, 171 Wash. 2d at 427. We can
conclude that the decision was clearly erroneous even if it was supported by evidence. Id.
When reviewing an ordinance, we give considerable deference to the construction of the
ordinance used by those officials charged with its enforcement. Phoenix, 171 Wash. 2d at 830.
B. PACIFIC COUNTY CARL ORDINANCE
The purpose of the CARL ordinance is “to define, identify, and protect critical areas and
resource lands as required by the Growth Management Act of 1990.” Pacific County Ordinance
(PCO) 147, § 1(B) (April 13, 1999). The parties agree that the CARL ordinance generally
prohibits construction of a house in a wetland buffer area without a variance. If a person seeks a
variance to reduce or alter a wetland buffer, “then the person shall demonstrate why such
buffer . . . together with such alternative mitigation proposed . . . is sufficient to adequately
protect the critical area function.” PCO 147, § 1(D)(3)(b).
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Section 3(J) of the CARL ordinance allows a property owner to request a variance. The
person seeking the variance has the burden of proof to “bring forth evidence in support of the
variance.” PCO 147, § 3(J)(1). Section 3(J)(2) provides:
The Administrator shall grant a variance if the person requesting the variance
demonstrates that the requested variance conforms to all of the criteria set forth
below:
a. That special conditions and circumstances exist which are peculiar to the
land;
b. That literal interpretation of the provisions of this Ordinance would deprive
the person seeking the variance of rights commonly enjoyed by other
properties conforming to the terms of this Ordinance;
c. That the special conditions and circumstances do not result from the actions
of the person seeking the variance;
d. That the granting of the variance requested will not confer on the person
seeking the variance any special privilege that is denied by this Ordinance to
other lands, structures, or buildings under similar circumstances;
e. That the variance requested is the minimum necessary to afford relief; and
f. That to afford relief the requested variance will not create significant impacts
to critical areas and resource lands and will not be materially detrimental to
the public welfare or contrary to the public interest.
PCO 147, § 3(J)(2).
C. APPLICATION OF VARIANCE CRITERIA
The Maykos argue that they are entitled to relief under LUPA because the
Commissioners’ denial of the variance based on their application of the variance criteria was an
erroneous interpretation of law under RCW 36.70C.130(1)(b), was not supported by substantial
evidence under RCW 36.70C.130(1)(c), and was a misapplication of the law to the facts under
RCW 36.70C.130(1)(d).
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For the Commissioners’ denial of the variance to be erroneous, their conclusion that the
Maykos did not satisfy five of the six variance criteria must be erroneous under RCW
36.70C.130(1)(b), (c) and/or (d) for all five of the challenged criteria. In other words, if the
Commissioners’ conclusion was correct on at least one of the criteria, their denial of the variance
was not erroneous. We hold that the Commissioners’ conclusions were not erroneous on at least
criterion (b) and criterion (e), and therefore that their land use decision was not erroneous. As a
result, we do not address the other criteria.
1. Criterion (b): Rights Commonly Enjoyed by Other Properties
The second criterion is that the “literal interpretation of the provisions of this Ordinance
would deprive the person seeking the variance of rights commonly enjoyed by other properties
conforming to the terms of this Ordinance.” PCO 147, § 3(J)(2)(b). The Commissioners
concluded that the Maykos provided no evidence to satisfy this criterion. Specifically, the
Commissioners stated that the Maykos “testified that they will not be able to develop the
property as they wished and as they expected to, but failed to provide evidence of any rights they
are deprived of that is [sic] enjoyed by others who conform to the CARL Ordinance.” CP at 10
(Conclusions of Law (CL) 6(b)). The Maykos argue that the Commissioners’ conclusion was
not supported by substantial evidence and was an erroneous application of the law to the facts.
We disagree.
a. Substantial Evidence
The Maykos argue that there was not substantial evidence supporting the Commissioners’
conclusion on criterion (b) because they did provide evidence that there were houses on other
properties in the area. They rely on Reider’s report which states, “Surrounding properties have
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single family residences on them even though surrounding properties have wetland communities
on site. The constraint with Mr. Mayko’s site is that the entire upland portion is covered by
wetland buffer.” CP at 188. But Reider did not provide evidence to support his statement that
surrounding properties have single family residences. Bogar testified that he knew of a home
built nine miles away that was next to Willapa Bay wetlands and only impacted buffers.
The County relied on a tax lot map that showed that only one of the 10 properties
surrounding the Maykos’ was developed. The Maykos claimed that the map shows two
developed properties and that the map shows a sliver of four other developed properties. LeFors
testified that other bay properties are landlocked with no road access, making development
difficult.
Viewing the evidence in the light most favorable to the County, there is no evidence that
the Maykos would be deprived of rights commonly enjoyed by others who comply with the
CARL ordinance. Because almost all of the lots around the Maykos’ property were
undeveloped, evidence of one lot with a house nearby and another lot with a house nine miles
away is insufficient to satisfy criterion (b). Therefore, we hold that there was substantial
evidence supporting the Commissioners’ finding that the Maykos would not be deprived of
rights commonly enjoyed by others who comply with the CARL ordinance.
b. Application of the Law to the Facts
The Maykos argue that the Commissioners’ decision on this requirement was an
erroneous application of the law to the facts. They point out that the other properties in the Espy
plat are larger than their short-platted lot, which would allow those properties to be developed
despite the presence of wetlands. They claim that they demonstrated that others can build homes
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and they cannot even though their home would not have a negative impact on the actual
wetlands.
The Maykos’ argument does not illustrate how the Commissioners’ application of the law
to the facts was clearly erroneous. The Commissioners analyzed whether surrounding properties
had developed single family houses in compliance with the CARL ordinance. The tax lot map
indicated that there was only one developed property in the immediate area. The Commissioners
concluded that denying the Maykos’ variance request and preventing them from building their
planned home would not be depriving the Maykos of a right commonly enjoyed by others,
because most others had not built houses on their properties. Therefore, we hold that the
Commissioners’ application of the law to the facts was not clearly erroneous.
2. Criterion (e): Minimum Variance Necessary to Afford Relief
The fifth criterion is that “the variance requested is the minimum necessary to afford
relief.” PCO 147, § 3(J)(2)(e). The Commissioners concluded that the Maykos “provided no
evidence that the requested variance is the minimum necessary to afford relief. Other
configurations requiring less encroachment, a smaller footprint, or other means of mitigation
were not considered.” CP at 10 (CL 6(e)). The Maykos argue that the Commissioners’
conclusion was not supported by substantial evidence and was an erroneous interpretation of the
law. We disagree.
a. Substantial Evidence
The Maykos argue that there was not substantial evidence supporting the Commissioners’
conclusion on criterion (e) because they did produce evidence that there were no other
economically viable options for the property besides their planned house. Their property is 900
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feet long and approximately 131 feet wide. The building site would be 75 feet long and 131 feet
wide and sit on the upland portion of the property. Because the entire property consists of
wetlands or wetland buffer, there was no alternative other than building entirely within the
buffer. Reider’s report stated, “Given the physical characteristics of the property it appears that
the variance is the minimum necessary to afford relief.” CP at 189.
The County emphasizes that the Maykos did not show whether or not other options were
available or even considered. For instance, the Maykos did not present evidence that other
building plans were considered and rejected. The County also points out that Reider’s report
stated that the Maykos could park a recreational vehicle on their property, which it argues shows
that a variance is not required for relief.
As interpreted by the Commissioners, “minimum necessary to afford relief” focuses on
the nature of the configuration, encroachment and footprint of the proposed house, and the extent
of any proposed mitigation. But the Maykos did not present any meaningful evidence that their
specific home plans and variance request was the “minimum necessary.” Their proposed house
was 2,400 square feet with onsite septic. They did not show that this was the only possible size
or configuration of the house or that another design could not lessen the extent of the
encroachment onto the buffer.
Under the CARL ordinance, the Maykos had the burden of proof to bring forth evidence
in support of the variance. PCO 147, § 3(J)(1). Viewing the evidence in the light most favorable
to the County, we hold that substantial evidence supported the Commissioners’ conclusion that
the Maykos’ requested variance (buying mitigation bank credits to compensate for building a
2,400 square foot home on a wetland buffer) was not the minimum necessary to afford relief.
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b. Interpretation of the Law
The Maykos argue that the Commissioners’ finding on this criterion was an erroneous
interpretation of the law because the Maykos presented evidence that their building plans were
the minimum necessary to provide relief. But their argument does not address how the
Commissioners’ interpreted the law or how the law should have been interpreted. Their
argument is incorrectly characterized as being about interpretation of law, when it is actually
about sufficiency of the evidence as discussed above.
In any event, the Commissioners interpreted this criterion as focusing on the nature of the
proposed improvement (configuration, encroachment and footprint of the house) and the extent
of any proposed mitigation. Giving deference to the Commissioners as required under RCW
36.70C.130(1)(b), we hold that the Commissioners’ conclusion on criterion (e) was not based on
an erroneous interpretation of the law.
3. Summary
The Maykos did not meet their burden under LUPA to show that the Commissioners’
land use decision was erroneous because they did not show that the Commissioners’ conclusions
on all five of the challenged criteria were erroneous. The Commissioners’ conclusions were not
erroneous on criterion (b) and criterion (e). Accordingly, we hold that the Commissioners’
denial of the Maykos’ variance request was not an erroneous interpretation of the law, was based
on substantial evidence, and was not a clearly erroneous application of the law to the facts.
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D. UNLAWFUL PROCEDURE OR FAILURE TO FOLLOW PRESCRIBED PROCESS
The Maykos argue that they are entitled to relief under RCW 36.70C.130(1)(a) because
the Commissioners engaged in unlawful procedure and failed to follow prescribed process.2 We
disagree.
A LUPA petitioner is entitled to relief under RCW 36.70C.130(1)(a) if “[t]he 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.” As noted above, we review de novo whether
the Commissioners engaged in unlawful procedure or failed to follow prescribed process.
Whatcom County, 171 Wash. 2d at 426.
The Maykos argue that the Commissioners were overly influenced by lay testimony from
Sheldon and inquired whether the Maykos planned on selling the property after receiving a
variance. They claim that the Commissioners gave weight to “unsupported slurs” from Sheldon,
who alleged that the Maykos’ property was always junk property that was never buildable. They
also assert that the Commissioners improperly asked them about Sheldon’s allegation that the
Maykos wanted the variance so that they could sell the property for a higher price. 3 The Maykos
argue that whether they planned to build or sell was irrelevant because it did not relate to any of
2
The Maykos also argue that the hearing examiner engaged in unlawful procedure and failed to
follow prescribed process for similar reasons, but the conduct of the hearings examiner is
irrelevant in this appeal. LUPA review applies to the Commissioners’ decision, which was made
de novo and not influenced by the hearing examiner.
3
One commissioner asked the Maykos whether they planned on just selling the land after getting
the variance and whether the variance would remain with the title or if it was specific to the
Maykos. Patricia Mayko responded that most of what Sheldon said was unsupported opinion.
She also said that they had owned the property since 1993, but were not sure whether they would
try to sell it in the future.
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the criteria for granting a variance. Therefore, according to the Maykos, the Commissioners
engaged in unlawful procedure.
But the Maykos do not show what procedure was unlawful or what prescribed process the
Commissioners failed to follow. Considering the testimony of a witness and deciding what
weight to give to that testimony certainly is not unlawful and does not violate required process.
See Total Outdoor Corp. v. City of Seattle Dep’t of Planning & Dev., 187 Wash. App. 337, 345-46,
348 P.3d 766, review denied, 184 Wash. 2d 1014 (2015) (indicating the factfinder determines the
credibility of witnesses and weight given to evidence). And even if the Commissioner’s question
about the Maykos’ intentions to sell the property violated proper procedure and process, such a
violation was harmless. There is no evidence that the Commissioners denied the Maykos’
variance based on their response to the question about selling the property.
Accordingly, we hold that the Commissioners did not engage in unlawful procedure or
fail to follow prescribed process under RCW 36.70C.130(1)(a).
E. VIOLATION OF FIFTH AMENDMENT RIGHTS
The Maykos argue that they are entitled to relief under RCW 36.70C.130(1)(f) because
the Commissioners’ denial of the variance constitutes a taking without just compensation in
violation of the Fifth Amendment to the United States Constitution. We disagree.
A LUPA petitioner is entitled to relief under RCW 36.70C.130(1)(f) if “[t]he land use
decision violates the constitutional rights of the party seeking relief.” As noted above, we review
de novo whether a land use decision violates a petitioner’s constitutional rights. Whatcom
County, 171 Wash. 2d at 426.
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The Fifth Amendment takings clause states “nor shall private property be taken for public
use, without just compensation.” U.S. CONST. amend. V. The United States Supreme Court has
said “when the owner of real property has been called upon to sacrifice all economically
beneficial uses in the name of the common good, that is, to leave his property economically idle,
he has suffered a taking.” Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019, 112 S. Ct. 2886,
120 L. Ed. 2d 798 (1992).
The Maykos argue that by denying their variance request, the Commissioners denied
them any economically viable use of their property, resulting in a total taking without
compensation. But the Maykos have not shown that they have been denied “all economically
beneficial uses” of their property. Id. at 1019. The CARL ordinance does not prohibit the
construction of all occupiable improvements like the challenged law in Lucas. The Maykos’
denied variance request was limited to a 2,400 square foot house. The Maykos may still be able
to obtain a variance to build a different type of dwelling or structure. And they may be able to
park a recreational vehicle on their property or make some other use of the property.
Further, the CARL ordinance contains a “Viable Use Exception” that states:
If the application of this Ordinance would result in denial of all economically viable
use of a property, and if such economically viable use of the property cannot be
obtained by consideration of a variance pursuant to subsection 3.J. to one or more
individual requirements of this Ordinance, then a person may seek a viable use
exception from the standards of this Ordinance.
PCO 147, § 3(K). A viable use exception “shall” be granted if the applicant can show (1) the
ordinance denies all economically viable use so that there is no economically viable use with a
lesser impact on critical areas, (2) the proposed development does not pose a threat to the public
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health and safety, and (3) any proposed modification to critical areas and resource lands will be
the minimum necessary to allow economically viable use of the property. PCO 147, § 3(K).
The Maykos have not shown that the Commissioners’ denial of their variance resulted in
denial of all economically beneficial uses of their property. And even if the denial of the
variance did result in a complete loss of all economically beneficial use of their property, they
might be able to obtain relief through a viable use exception under section K of the CARL
ordinance. Accordingly, we hold that the Commissioners did not violate the Maykos’
constitutional rights.
F. COSTS AND ATTORNEY FEES
The County assigns error to the superior court’s award of costs and statutory attorney fees
to the Maykos under RCW 4.84.010. Because we reverse the superior court, we vacate the
superior court’s award of costs and statutory attorney fees.
The Maykos request reasonable attorney fees on appeal, but we decline to consider this
request because they are not the prevailing party on appeal. The County requests an award of
appellate costs, and we award those costs to the County as the prevailing party. RAP 14.2.
CONCLUSION
We reverse the superior court and affirm the Commissioners’ denial of the Maykos’
request for a variance.
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A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, A.C.J.
We concur:
JOHANSON, J.
MELNICK, J.
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