Jeffrey Connell And Joellen Connell, Appellants V. City Of Bothell, Respondent

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;;RT OF'APPEALS.
STATE Or WASulNblv..
IN THE COURT OF APPEALS OF THE STATE Of WASHINGTON
JEFFREY CONNELL and JOELLEN
CONNELL, husband and wife,
Appellants,
CITY OF BOTHELL, a Washington
municipality,
Respondent.
No. 70141-0-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	June 16, 2014
Trickey, J. — Jeffrey and JoEllen Connell appeal the superior court's
denial of their petition under the Land Use Petition Act (LUPA), chapter 36.70C
RCW, 	affirming the 	decision 	of the city of Bothell's (City) 	Board of Appeals
denying 	them 	a 	building 	permit. 	They 	contend 	(1) 	the 	decision 	was 	not
supported by substantial evidence and constituted an erroneous application of
the law to the facts; and (2) the City building official's participation in the hearing
violated the appearance of fairness doctrine. 	We affirm and award the City
attorney fees on appeal.
FACTS
The Connells are the owners of the Glen Grove Apartments in Bothell.1 	In
2008, they hired Northwest Primeline Exteriors to replace the building's existing
single-pane aluminum-framed windows and sliding glass doors with new vinyl-
framed windows and doors.2 	It is undisputed that the Connells did not apply for a
1 Administrative Record (AR) at 2.
2 AR at 38; Clerk's Papers (CP) at 3.

No. 70141-0-1/2
building permit for the work and that a permit was required by Bothell Municipal
Code (BMC) 20.02.095.3
After receiving 	a 	complaint regarding 	mold and 	water damage at 	the
apartments, the City investigated and discovered the work had been performed
without a permit.4 	The Connells submitted an application for an after-the-fact
permit. 	The City reviewed the application, concluded that the installation method
was 	inconsistent 	with 	City 	building 	code 	requirements, 	and 	issued 	a
"determination 	of inconsistency."5 	Though 	the 	Connells appealed 	the City's
decision to the City's Board of Appeals, they ultimately abandoned the appeal
and the permit application lapsed.6
In 2011, 	the 	Connells 	submitted 	a 	second 	permit 	application.7 	The
Connells sought an exemption under BMC 20.02.090(K) and (L), which provide
that the City may approve a permit for work that does not conform to code ifstrict
compliance 	is 	impractical 	or 	the 	installation 	method 	is 	equivalent 	to 	that
prescribed in the code.8 Along with the application the Connells provided a copy
3Though the Connells' LUPA petition challenged the City's determination that a building
permit was required, the superior court dismissed this claim of error in a separate order,
which the Connells did not appeal. 	CP at 98-99.
4 AR at 2.
5 AR at 11.
6AR at 11-12.
7 AR at 53.
8 BMC 20.02.090(K) states, in relevant part:
Wherever there 	are 	practical 	difficulties involved in carrying 	out the
provisions of this code, the building official shall have the authority to
grant modifications for individual cases, upon application of the owner or
owner's representative; provided, the building official shall first find that
special individual reason makes the strict letter of this code impractical

No. 70141-0-1/3
of the manufacturer's installation instructions as well as results of water leakage
testing performed on four of the new windows. 	The results showed that one of
the four windows failed the testing because water leaked through the area where
the interlock and sill met.9
Michael DeLack, the City's building official, denied the application.10 He
noted that
[t]he existing window and door assemblies were removed and the
new assemblies were altered (nailing flanges removed) and set into
the exiting [sic] framed openings without flashing. The applicant is
claiming 	this 	to 	be 	a 	typical 	"finless" 	or 	"collapse" 	type 	of
installation. 	However the 	non-permitted installations are 	relying
solely on sealant (caulk) placed between the framed opening and
the window and door assemblies to prevent moisture intrusion into
the building.^11*
and the modification is in compliance with the intent and purpose of this
code and that such modification does not lessen health, accessibility, life
and fire safety, or structural requirements.
BMC 20.02.090(L) states, in relevant part:
The provisions of this code are not intended to prevent the installation of
any material or to prohibit any design or method of construction not
specifically prescribed by this code; provided, that any such alternative
has 	been 	approved. 	An 	alternative 	material, 	design 	or method 	of
construction shall be approved where the building official finds that the
proposed 	design 	is satisfactory and 	complies with 	the 	intent of the
provisions of this code, and that the material, method or work offered is,
for the purpose intended, at least the equivalent of that prescribed in this
code in quality, 	strength, 	effectiveness, fire 	resistance, 	durability and
safety.
9 AR at 59.
10 AR at 79-82.
11 AR at 80.

No. 70141-0-1/4
DeLack concluded that the work did not comply with the requirements of the
International 	Building Code (IBC),12 which 	requires: 	(1) exterior windows and
doors be installed per the manufacturer's instructions; (2) exterior walls provide
the building with a weather-resistant envelope; and (3) flashing be installed to
prevent moisture from entering the wall.13 	He also concluded that the Connells
had not established grounds for an exemption under BMC 20.02.090(K) and (L)
because 	they 	had 	not 	demonstrated 	that 	compliance 	with 	the 	code 	was
12 At the time of the hearing, the City had adopted the 2009 version of the IBC as its
building code. BMC 20.04.015.
13 IBC section 1403.2 (2009) provides, in relevant part:
Exterior walls shall provide the building with a weather-resistant exterior
wall envelope. 	The 	exterior wall envelope shall 	include flashing, 	as
described in Section 1405.4. The exterior wall envelope shall be designed
and constructed in such a manner as to prevent the accumulation of
water within the wall assembly by providing a 	water-resistive barrier
behind the exterior veneer, as described in Section 1404.2, and a means
for draining water that enters the assembly to the exterior. Protection
against condensation in the exterior wall assembly shall be provided in
accordance with Section 1405.3.
Section 1405.4 (2009) provides:
Flashing shall be installed in such a manner so as to prevent moisture
from entering the wall or to redirect it to the exterior. Flashing shall be
installed at the 	perimeters of exterior door 	and 	window assemblies,
penetrations and terminations of exterior wall assemblies, exterior wall
intersections with roofs, chimneys, porches, decks, balconies and similar
projections and at built-in gutters and similar locations where moisture
could enter the wall. Flashing with projecting flanges shall be installed on
both sides and the ends of copings, under sills and continuously above
projecting trim.
Section 1405.13.1 (2009) provides:
Windows 	and 	doors 	shall 	be 	installed 	in accordance with 	approved
manufacturer's instructions. Fastener size and spacing shall be provided
in such instructions and shall be calculated based on maximum loads and
spacing used in the tests.

No. 70141-0-1/5
impractical and because their proposal to prevent moisture intrusion by merely
applying sealant was unrealistic and ineffective.14
The Connells again appealed to the Board. 	On April 17, 2012, at the start
of the Board hearing, DeLack outlined the procedural history of the case.15 	He
also noted for the record that pursuant to BMC 20.02.225,16 he was an ex officio
member of the Board but could not vote on any matter before the Board.17 	At
one point, while the parties were arguing over whether the work constituted a
repair or new construction, DeLack interjected, offering to explain the relevant
code provisions to the Board because he had authored them.18 The Board swore
DeLack in to provide testimony on that issue.19 	DeLack later questioned one of
the Connells' witnesses. 	Counsel for the Connells objected, stating, "The rules
specifically provide what a building official is required and authorized to do during
this procedure. 	And interrogating the witness is not one of those rules."20 	The
Board overruled the objection.21
14 AR at 81-82.
15 Board of Appeals Report of Proceedings (RP) at 3.
16 At the time of the hearing, BMC 20.02.225(A) provided: "The building official shall be
an ex officio member of and shall act as secretary to the board but shall have no vote on
any matter before the board." BMC 20.02.225(A) was amended in 2013 to read: "The
building official may assist as staff for the board and may participate fully in proceedings
before the board but shall have no vote on any matter before the board."
17 RP at 3.
18 RP at 19.
19 RP at 20.
20 RP at 52-53.
21 DeLack proceeded to question two other witnesses and made a closing argument to
the Board. The City was represented by the City Attorney, who also made a closing
argument.

No. 70141-0-1/6
Mark 	Lawless, the 	Connells' building 	consultant, testified that 	prior to
installing 	the 	new vinyl windows, 	Northwest 	Primeline 	Exteriors 	cut 	off the
windows' 	nailing fin.22 	Northwest Primeline Exteriors then 	removed the pre
existing 	aluminum 	frames 	and 	set 	the 	new 	vinyl 	windows 	into the 	rough
opening.23 	However, the manufacturer's instructions made clear that in the case
of a retrofit, a finless window must be installed into an existing wood or aluminum
window frame.24 	Lawless testified that the manufacturer did allow for installation
into a rough opening in the case of new construction. 	Per the manufacturer's
instructions, this 	method would 	require the installation of flashing.25 	Lawless
acknowledged that flashing was not installed.26 	Lawless ultimately admitted that
Northwest 	Primeline 	Exteriors 	had 	utilized 	a 	"hybrid" 	method 	utilizing 	a
combination of the retrofit and new construction techniques.27
The City introduced the results of the water leakage testing performed by
the Connells as well as photographs of a sampling of windows showing mold
growth.28
The Board affirmed the City's decision. 	The Board made the following
findings:
22 RP at 58.
23 RP at 84.
24 AR at 70-73.
25 AR at 75.
26 RP at 95.
27 RP at 92-93.
28 AR at 88-94.

No. 70141-0-1/7
IBC Section 1405.13.1 states that exterior windows and doors shall
be installed per the manufacturer's installation instructions. 	During
his 	testimony, 	Mr. 	Lawless 	stated 	that 	the 	existing 	aluminum
window and door frames had been removed prior to installation of
the new windows and doors.
City exhibit #9 includes what has been stated as being the window
manufacturer's 	installation 	instructions. 	As 	part 	of 	those
instructions, a "finless" window is to be installed within the existing
aluminum or wood window frame. 	Mr. Lawless testified that the
existing aluminum frames had been removed and the new windows
installed directly into the rough wall opening.
When questioned about this method not meeting the installation
requirements of the manufacturer, Mr. Lawless testified that there
were also manufacturer's installation methods for new construction
and that the windows as installed would meet those requirements.
Upon further questioning by the Board, Mr. Lawless stated that the
flashing 	and 	sealants 	required 	by 	the 	manufacturer 	for 	new
construction had not been installed, but instead the building's vinyl
siding would, 	in his opinion, accomplish the 	same task as the
prescribed flashing.1291
The Board concluded:
The windows and doors, as installed, do not comply with the IBC
(sections 	1403.2, 	1405.4 	or 	1405.13.1), 	the 	manufacturer's
installation instructions, or the AAMA Standard 2410-03 that the
manufacturer's installation instructions appear to be modeled on J30'
On May 14, 2012, the Connells filed 	a 	LUPA petition challenging the
Board's decision. 	The Connells argued, amongst other things, that (1) DeLack's
participation in the Board hearing violated chapter 42.36 RCW, the appearance
of fairness doctrine; (2) the Board's decision was not supported by substantial
evidence; and (3) the Board's decision was an erroneous application of the law to
29 AR at 5.
30 AR at 6.

No. 70141-0-1/8
the facts.31 	The court denied the petition and the Connells' subsequent motion
for reconsideration. 	The Connells appeal.
ANALYSIS
Standard of Review
LUPA is the exclusive means of judicial review of land use decisions.
RCW 36.70C.030(1). 	We review the decision of the "local jurisdiction's body or
officer with the 	highest level of authority to make the determination, including
those 	with 	authority 	to 	hear 	appeals." 	RCW 	36.70C.020(2). 	Thus, 	when
reviewing 	a 	LUPA 	decision, 	we 	stand 	in the 	shoes 	of the 	superior court,
reviewing the ruling below on the administrative record. 	King Cntv. Dep't of Dev.
and Envtl. Servs. v. King Cntv., 177 Wn.2d 636, 643, 305 P.3d 240 (2013).
This court may grant relief from a land use decision if the party challenging
the decision establishes one of the following grounds:
(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;
31 The Connells' other claims are not at issue in this appeal. CP at 1-9.

No. 70141-0-1/9
(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).
Substantial Evidence
When reviewing a challenge to the sufficiency of the evidence, "we view
facts and inferences in a light most favorable to the party that prevailed in the
highest forum exercising fact-finding authority." 	Phoenix Dev.. 	Inc. v. Citv of
Woodinville. 171 Wn.2d 820, 828-29, 256 P.3d 1150 (2011). 	There must be
sufficient evidence to "persuade a reasonable person that the declared premise
is true." Phoenix Dev.. 171 Wn.2d at 829. We "'must give substantial deference
to both the legal and factual determinations of a hearing examiner as the local
authority with expertise in land use regulations.'" 	Durland v. San Juan Cntv., 174
Wn. App. 1,12, 298 P.3d 757 (2012) (quoting Lanzce G. Douglass. Inc. v. Citv of
Spokane Valley, 154 Wn. App. 408, 415-16, 225 P.3d 448, review denied, 169
Wn.2d 1014 (2010)).
The 	Connells 	argue 	that the Board's decision 	was 	not supported 	by
substantial evidence. We disagree.32 The installation did not conform to the IBC,
32 As the City notes, the Connells did not assign error to any of the Board's findings of
fact which would therefore typically be treated as verities on appeal. 	See, e^, Hilltop
Terrace Homeowner's Ass'n v. Island Cntv.. 126 Wn.2d 22, 30, 891 P.2d 29 (1995); see
also RAP 10.3(g) ("A separate assignment of error for each finding of fact a party
contends was improperly made must be included with 	reference to the finding 	by
number."). 	However, because the Board's "findings" are not actually findings of fact but
instead a recitation of the evidence presented at the hearing, we review the entire record
for substantial evidence to support the Board's decision.

No. 70141-0-1/10
which 	requires 	windows 	and doors to be 	installed 	per the 	manufacturer's
instructions. 	Here, the 	record is clear that the windows and doors were 	not
installed per the manufacturer's instructions. 	The installation did not comply with
the manufacturer's retrofit instructions because the pre-existing aluminum frames
were removed, and did not comply with the instructions for new construction
because flashing was not installed.
Nevertheless, the City may approve work that does not conform to code if
the installation method is equivalent in quality to that prescribed in the code. 	The
City 	introduced 	evidence that a sampling 	of the 	new windows failed 	water
leakage testing, as well as photographic evidence of mold growth. 	Viewed in the
light most favorable to the City, the evidence supports the Board's conclusion
that the installation method used by the Connells was not sufficient because it
allowed water intrusion.
Application of Law to Facts
The application of the law to the facts is clearly erroneous only if we are
"left with a definite and firm conviction that a mistake has been committed."
Phoenix 	Dev.. 	171 	Wn.2d 	at 	829. 	The Connells 	contend that the 	Board
misapplied the law to the facts when it considered the evidence of water leakage
and mold because the only relevant issue was whether the installation conformed
to the City's building code. 	However, the Connells' permit application requested
an exemption on the ground that the non-conforming installation method was
equivalent to 	that 	prescribed 	in 	the 	code. 	Evidence 	of leakage 	and 	mold
10

No. 70141-0-1/11
demonstrated that it was not. 	The Connells fail to demonstrate clear error in the
Board's interpretation of the City's building code.
Appearance of Fairness Doctrine
"Application 	of the 	appearance 	of fairness 	doctrine to 	local 	land 	use
decisions is statutory." 	King Cnty. v. Cent. Puget Sound Growth Mgmt. Hearings
Bd.. 91 Wn. App. 1, 33, 951 P.2d 1151(1998), reversed in part on other grounds.
138 Wn.2d 161, 979 P.2d 374 (1999). 	The doctrine applies to the quasi-judicial
actions of local decision-making bodies. 	RCW 42.36.010. 	The appearance of
fairness 	is violated only where there is evidence of ex parte communication
between a member of the decision-making body and a party to the proceeding.
RCW 42.36.060 provides:
During the pendency of any quasi-judicial proceeding, no member
of a decision-making body may engage in ex parte communications
with opponents or proponents with respect to the proposal which is
the subject of the proceeding unless that person:
(1) Places on the record the substance of any written or oral
ex parte communications concerning the decision of action; and
(2) Provides that a public announcement of the content of
the communication and of the parties' rights to rebut the substance
of the communication shall be made at each hearing where action
is considered or taken on the subject to which the communication
related. This prohibition does not preclude a member of a decision
making body from seeking in a public hearing specific information
or data from such parties relative to the decision if both the request
and the results are a part of the record. Nor does such prohibition
preclude correspondence between a citizen and his or her elected
official if any such correspondence is made a part of the record
when it pertains to the subject matter of a quasi-judicial proceeding.
11

No. 70141-0-1/12
The Connells contend that DeLack's participation in the Board hearing as
a 	witness, 	an 	advocate 	for 	the 	City, 	and 	a 	Board 	member 	violated 	the
appearance of fairness doctrine. 	But there is no evidence that DeLack engaged
in the type of ex parte communication prohibited by the statute. 	Moreover, the
remedy available 	in an 	appearance 	of fairness 	challenge is to "disqualify a
member of a 	decision-making 	body from 	participating 	in a 	decision." 	RCW
42.36.080. 	As an ex officio member of the Board DeLack did not have voting
privileges and could not participate in deciding the Connells' appeal.
In support of their claim, the Connells rely on Buell v. Citv of Bremerton.
80 Wn.2d 518, 495 P.2d 1358 (1972) and Havden v. Citv of Port Townsend. 28
Wn. App. 192, 622 P.2d 1291 (1981), which pre-date the enactment of chapter
42.36 RCW and pertain to the common law appearance of fairness doctrine.33
Both cases involved the chairman of a planning commission making a rezoning
recommendation to the city council from which they would benefit. 	Buell. 80
Wn.2d at 522-23; 	Havden. 28 Wn. App. at 193. 	The appearance of fairness
doctrine was violated by their financial interest. 	Buell. 80 Wn.2d at 525; Havden.
28 Wn. App. at 196-97. 	These cases do not apply here because there is no
33 The Connells failed to raise the common law appearance of fairness doctrine in their
LUPA petition but argued it on reconsideration. 	The superior court did not reach the
merits of this argument, concluding "[t]he issue of appearance of fairness was 	not
adequately preserved and presented in petitioner's brief." 	CP at 112-13. "But new
issues may be raised for the first time in a motion for reconsideration, thereby preserving
them for review, where, as here, they are not dependent upon new facts and are closely
related to and part of the original theory." 	Nail v. Consol. Res. Health Care Fund I. 155
Wn. App. 227, 232, 229 P.3d 885 (2010).
12

No. 70141-0-1/13
evidence that DeLack had any financial interest in denying the Connells' permit
application. 	On the facts before us, DeLack's participation in the Board hearing
did not violate the appearance of fairness doctrine.
Attorney Fees
The City requests attorney fees incurred in defending this appeal pursuant
to RCW 4.84.370. 	The prevailing party on appeal of a 	land 	use decision is
entitled to its attorney fees 	if that party's decision also prevailed 	before the
administrative agency and in the superior court. 	RCW 4.84.370(1); Friends of
Cedar Park Neighborhood v. Citv of Seattle, 156 Wn. App. 633, 654-55, 234 P.3d
214 (2010). 	As the prevailing party, the City is entitled to fees on appeal subject
to compliance with RAP 18.1.
Affirmed.
J/\d*-KSj 	~vj
WE CONCUR:
^ 	^,J.
13