Lind Bros. Construction, Respondent V. City Of Bellingham, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
LIND BROTHERS CONSTRUCTION,
LLC, a Washington limited liability
company,
Respondent,
v.
CITY OF BELLINGHAM, a Washington
municipal corporation,
Appellant,
and
RESPONSIBLE DEVELOPMENT, a
Washington nonprofit corporation,
Intervenor,
and PETER FRYE, an individual,
Appellant.
No. 67877-9-1
(consolidated with No. 67973-2-1)
DIVISION ONE
UNPUBLISHED OPINION
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Grosse, J. — The city of Bellingham's (City) denial of a lot line adjustment is
proper when the proposed adjustment fails to meet the four criteria required for a lot line
adjustment approval under Bellingham Municipal Code (BMC) 18.10.020(B). 	Here, the
record 	supports 	the 	Hearing 	Examiner's 	determination 	that 	a 	builder's 	lot 	line
adjustment proposal did not meet three of these requirements because it did not meet
minimum density requirements, further infringed on the City's Land Use Development
Ordinance's setback requirements, and did not improve the function and utility of the
existing lots. 	Thus, the Hearing Examiner's decision to affirm the City's denial of the lot
line adjustment was proper and the superior court's reversal of the Hearing Examiner's
ruling was error. Accordingly, we reverse the superior court.

No. 67877-9-1
FACTS
Lind Brothers Construction, 	LLC (Lind) sought to develop property it owns in
Bellingham. 	The property consists of two lots located between two streets, Star Court
to the north and Harrison Street to the south. 	The boundary between the lots runs north
to south with both 	lots abutting 	Star Court and 	Harrison Street. 	Both 	streets are
unimproved rights-of-way.
The lots are in an area zoned as single family residential with a 20,000-foot
minimum lot size. 	One lot was approximately 8368 square feet and the other was 5578
square 	feet. 	Because 	the 	lots 	did 	not 	meet 	the 	20,000-foot 	minimum 	zoning
requirement, Lind applied for lot line adjustments 	permit to obtain approval for the
development of two single-family residences on the property. 	The permit application
proposed to alterthe boundary to an east/west orientation, with one lot (proposed Lot A)
abutting only Harrison Street to the south and the other lot (proposed Lot B) abutting
Star Court to the north with a 20-foot wide pipestem along the easterly side of Lot A that
extends to Harrison Street.
The lots and abutting rights-of-way contained regulated wetlands. 	Because the
development proposed by Lind included impacts to the wetlands and required buffer
areas, 	Lind 	also applied for wetland/stream 	permit. 	Lind's proposal located 	septic
drainfields within the wetland and buffer areas and in the access portion of one lot within
the wetland. 	The permit application proposed onsite and offsite mitigation for these
impacts.
Lind filed the lot line adjustment and wetland/stream permit applications with the
City on December 5, 2005, in compliance with the City's Wetland Stream Ordinance,

No. 67877-9-1
former chapter 16.50 BMC. 	The next day, December 6, 2005, the City's Critical Areas
Ordinance, 	chapter 	16.55 	BMC, 	took 	effect 	and 	replaced 	the 	Wetland 	Stream
Ordinance. 	The City processed 	Lind's wetland/stream permit application 	under the
former ordinance.
The City determined 	that 	Lind's applications 	lacked adequate information to
evaluate the proposal for its consistency with the City's development standards and its
potential environmental impacts. 	The City noted that Lind's applications did not include
any requests for variances from the City's development or subdivision standards. 	As a
result, the City made repeated requests of Lind for more information.
On January 10, 2006, the City notified Lind that its applications did not contain
enough information to prepare a Notice of Application or a State Environmental Policy
Act (SEPA) determination and requested that it "[pjrovide a detailed SEPA checklist for
the entire project, including road construction, lot development, utilities, and stormwater
management (if required by the Public Works Dept.)" 	On February 16, 2006, the City
notified Lind that it would review the wetland/stream permit application concurrently with
the lot line adjustment application and that further review of the lot line adjustment
application would continue after staff completed a preliminary environmental review.
On October 10, 2006, City Planners Kim Weil and Kathy Bell met with Lind's
owner, John Lind, and its wetland consultant, biologist Vikki Jackson. 	They discussed
zoning 	and 	wetland 	setbacks, and 	siting 	of the septic system. 	The 	City 	staff
recommended that Jackson 	and 	a 	qualified engineer work on a 	potential variance
package.
On March 29, 2007, the City made a second request for the SEPA checklist and

No. 67877-9-1
also requested verification of the Harrison Street right-of-way width and center line, a
copy of the Whatcom County Health 	Department septic permit allowing 	two septic
systems or a plan to connect to the City sewer service, an engineering analysis showing
construction feasibility of the road, a preliminary stormwater plan, a fire truck turnaround
plan, and plans for fully abutting 	public water and 	sewer, and a minimum standard
street.
On December 5, 2008, Lind's engineer provided the City with a complete SEPA
checklist and 	detailed 	information 	about 	Lind's 	development 	proposal. 	Lind also
provided a new wetland mitigation plan. 	On February 27, 2009, the City requested that
Lind provide a SEPA mailing list and fees for the SEPA checklist. On May 8, 2009, Lind
supplied a SEPA mailing list to the City and paid its SEPA fee. 	On May 22, 2009, a
Notice of Application for the wetland/stream permit was sent to those on the mailing list
and the City received back comments on the application.
On June 12, 2009, City Planner Weil sent Lind a letter stating that the City had
completed the 	project and environmental 	analysis of the 	lot 	line 	adjustment and
wetland/stream 	permit 	applications and 	prepared a 	list 	of conditions for 	a SEPA
Mitigated Determination of Non-Significance (MDNS) as required by WAC 197-11-350.
The letter further requested that Lind meet with Weil and Bell to discuss the conditions,
which required better protection of the wetlands, verification that development setbacks
will be met, and 	other conditions that address impacts they believed had 	not been
mitigated adequately. 	Lind did not respond to this request to meet.
On June 27, 2009, the City issued the MDNS for Lind's proposal, which was
subject to a 	14-day public 	comment 	period. 	During 	this time, 	the City accepted

No. 67877-9-1
comments from the public raising the issue of whether the wetland on the property was
a mature forested wetland that would be classified as a Category I wetland requiring a
100-foot buffer. 	On August 7, 2009, Weil e-mailed John 	Lind 	about the citizens'
concerns and advised that he could have a field analysis done to determine if the area
met the criteria for a mature forested wetland or the City could revise the MDNS to add
a condition for a tree assessment to be done. 	Lind did not respond. 	On August 28,
2009, the City issued a revised MDNS that addressed the categorization of the wetland
as a mature forested wetland. 	On January 13, 2010, the City denied Lind's applications
for lot line adjustment and wetland/stream permit.
Lind 	appealed 	both the 	initial 	MDNS 	and the 	revised 	MDNS and the 	City's
denials of the lot adjustment and wetland/stream permits to the City Hearing Examiner.
The Hearing Examiner affirmed the City's decisions denying the permits. 	Lind then filed
an appeal in Whatcom Superior Court under the 	Land Use Protection Act (LUPA),
seeking reversal of the Hearing Examiner's decision. 	On October 10, 2011, the trial
court reversed the Hearing Examiner's decision and ordered that the City grant the lot
line adjustment. 	The trial court further ordered that the wetland/stream permit and
revised 	MDNS 	be 	remanded, 	and 	the 	City staff 	issue 	a 	wetland/stream 	permit
consistent with the court's decision. The court also remanded to the Hearing Examiner
to issue a decision regarding Lind's appeal of the conditions in the revised MDNS. 	The
City appeals from that reversal. 	Also joining the appeal is Peter Frye, a neighbor of the
property at issue.1
1 Frye essentially repeats the same arguments raised in the City's appeal.
5

No. 67877-9-1
ANALYSIS
In reviewing the superior court's decision on a LUPA appeal, this court stands in
the shoes of the superior court and reviews the Hearing Examiner's decision on the
record before the Hearing Examiner. 	The party who filed the LUPA appeal bears the
burden of proof and must establish:
(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.*21
Standards (a), (b), (e) and (f) present questions of law that are reviewed de novo,
but under (b) the reviewing 	court also gives deference to the Hearing 	Examiner's
construction of local land 	use regulations based on her specialized knowledge and
expertise.3 	Standard 	(c) 	involves 	factual 	determinations 	that are 	reviewed 	for
2RCW36.70C.130(1).
3 Cinoular Wireless. LLC v. Thurston County. 131 Wn. App. 756, 768, 129 P.3d 300
(2006); Citv of Federal Way v. Town & Country Real Estate, LLC, 161 Wn. App. 17, 37,
252 P.3d 382 (2011).
6

No. 67877-9-1
supporting substantial evidence.4 The reviewing court considers all ofthe evidence and
reasonable inferences in the light most favorable to the party who prevailed 	in the
highest forum that exercised fact-finding authority.5
The 	Bellingham 	Municipal 	Code 	(BMC) 	contains 	provisions 	governing 	the
approval of lot line adjustments. 	BMC 18.08.265 defines a lot line adjustment as:
[A] revision made for the purpose of adjusting boundary lines which does
not create any additional lot, tract, parcel, site or division nor create any
lot, tract, 	parcel, 	site 	or 	division 	which 	contains 	insufficient 	area 	and
dimension to meet minimum requirements for width and area for a building
site.
BMC 18.10.020(B) provides that in order for the City to approve a lot line adjustment,
the following must be established:
1. 	No new lots are created;
2. 	Each parcel as proposed meets minimum lot standards as specified in
Chapter 18.36, or that each parcel if already less than the required
minimum is not further reduced as a result of the proposed lot line
adjustment;
3. 	The lot line adjustment does not further infringe on any applicable
section of the Land Use Development Ordinance; and
4. 	The lot line adjustment improves the overall function and utility of the
existing lots.
The City denied the lot line adjustment permit based on the failure to comply with
three out of these four criteria (2, 3, and 4). 	The decision was issued by the Director of
the City's Department of Planning and further concluded that the wetland/stream permit
was denied because it relied on a specific layout that does not meet the 	minimum
requirements of chapter 18.10 BMC.
The 	Hearing Examiner affirmed 	this 	decision, 	concluding 	that 	the 	lot line
adjustment 	proposal 	failed 	to meet three 	of the 	four 	criteria 	specified 	in 	BMC
4 Cinaular Wireless. 131 Wn. App. at 768.
5 Cinaular Wireless, 131 Wn. App. at 768.

No. 67877-9-1
18.10.020(B), noting that all four requirements must be met for approval of a lot line
adjustment. 	She 	concluded 	that 	it 	did 	not 	meet 	the 	requirement 	of 	BMC
18.10.020(B)(2) because the proposed lots were less than the minimum site area of
20,000 square feet 	required 	by the zoning 	designation for that area 	and the 	line
adjustment proposal further reduces the site area of each of the lots than currently
exists, 	noting that 	the 	pipestem 	portion 	of one 	of the 	lots 	must 	be 	excluded 	in
determining the area under BMC 18.08.245. 	The Hearing Examiner further concluded
that she lacked authority to consider additional options submitted by Lind because they
were not included in any of the applications before its denial and all proposals must be
first be submitted for administrative approval by the Department Director.
The Hearing Examiner also concluded that Lind's lot line adjustment proposal
did not meet the requirement of BMC 18.10.020(B)(3) that it not infringe on the Land
Use 	Development 	Ordinance because 	it "seeks to modify an 	existing lot that 	has
sufficient dimensions to comply with the front yard setback requirements of the Land
Use Development Ordinance, BMC 20.30.040(F), creating a lot that cannot comply with
these requirements." 	The Hearing Examiner further concluded that the proposal did not
meet the requirement of BMC 18.10.020(B)(4) that it improve the overall function and
utility of the existing lots because dedication of additional right-of-way to provide a
standard 60-foot right-of-way reduces the functional size of proposed Lot A by up to 30
feet in depth and that this, combined with the application of setback requirements to Lot
A, leaves it without function and utility. 	The Hearing 	Examiner also concluded that
function and utility was diminished because the proposal creates one unbuildable lot
and another that will 	require substantial 	impacts to a wetland and buffer area for
8

No. 67877-9-1
development.
The trial court reversed, issuing only the following ruling without entering any
findings and conclusions:
ORDERED that the 	Hearing 	Examiner's 	decision 	denying 	the 	lot line
adjustment is reversed, 	and the City shall therefore grant the 	lot line
adjustment.
ORDERED 	that 	the 	wetland/stream 	permit 	and 	revised 	MDNS 	is
remanded, 	and 	the 	City 	staff 	shall 	issue 	a 	wetland/stream 	permit
consistent with the court's decision and the Hearing Examiner shall issue
a decision regarding Petitioner's appeal of the conditions in the revised
MDNS.
A. 	Minimum Density Requirement
The City first contends that the superior court erred by reversing the Hearing
Examiner's 	ruling 	because 	Lind's 	proposal 	failed 	to 	meet 	the 	minimum 	density
requirement of BMC 	18.10.020(B)(2). 	The City argues that the 	Hearing Examiner
correctly excluded the pipestem area from the area calculation, resulting in a lot size
that did not meet the minimum density requirement. 	Lind argues that the pipestem area
is not excluded 	from the 	lot area for purposes of satisfying the 	minimum density
requirement of BMC 18.10.020. We disagree.
The City relies on the definition of "lot area" provided in BMC 18.08.245:
"Lot area" means the total horizontal area within the boundary of the lot
lines of a parcel and expressed in terms of square feet or acres. 	For
purposes of determining the area in a "pipestem lot," the area shall be
defined as the square footage of the lot exclusive of the pipestem portion
of the lot.
Lind argues that the term "lot area" is specified in other sections of BMC Title 18, but it
is 	not referenced 	in 	the 	applicable 	ordinance, 	BMC 	18.10.020(B)(2), 	which 	only
references "parcel," stating that "each parcel" may not be further reduced as a result of

No. 67877-9-1
the lot line adjustment. 	Thus, Lind contends this provision must be interpreted to mean
only that the adjusted lots cannot be reduced from the original size without regard to
whether there is a pipestem.
But as the City counters, using the definition of "lot area" to determine whether a
parcel's 	area 	is further 	reduced 	as 	a 	result of a 	proposed 	lot line adjustment 	is
consistent with the lot line adjustment provisions. 	"Lot line adjustment" is defined as
a revision made for the purpose of adjusting boundary lines which does
not create any additional lot, tract, parcel, site or division nor create any
lot, tract, 	parcel, 	site 	or 	division which 	contains 	insufficient 	area 	and
dimension to meet minimum requirements for width and area for a building
site.[6]
"Lot" is defined as
a fractional part of subdivided lands 	having fixed boundaries being of
sufficient area and dimension to meet minimum zoning requirements for
width and area. 	"Lot" includes tracts or parcels of land.1^
Accordingly, 	for purposes 	of meeting the 	minimum 	density 	requirement of 	BMC
18.10.020(B)(2), the area calculation excludes the pipestem area.
Lind further contends that BMC 18.36.020 exempts smaller non-conforming lots
from any site area requirements. 	Lind cites BMC 18.36.020(A), which provides:
All 	lots shall 	be of sufficient size to 	meet the site area 	requirements
specified within the 	area's land use designation 	under "density" found
within the applicable Neighborhood Plan in which the property is located;
provided, however, that this minimum shall not be required in the following
instances:
3. 	Lot line adjustments 	pursuant to 	Section 	18.10.010 for 	lots
presently having less site area than the required minimum lot size.
The 	City 	agrees 	that existing 	lots that are 	smaller than the 	minimum 	site area
6 BMC 18.08.265.
7 BMC 18.08.240
10

No. 67877-9-1
requirements are not subject to the area requirements of BMC 18.36.020, but correctly
notes that such lots are addressed by BMC 18.10.020(B)(2), which requires that such
lots are not further reduced in size by a lot line adjustment proposal. 	Here, excluding
the proposed pipestem area, the lots are further reduced in size.
Thus, Lind has failed to show that the lot line adjustment proposal meets the
minimum 	density 	requirement 	of 	BMC 	18.10.020(B)(2). 	Because 	the 	ordinance
provides that all four requirements must be met for approval of a lot line adjustment, the
Hearing Examiner properly affirmed the City's decision to deny the lot line adjustment
permit based on failure to comply with this requirement alone. 	Accordingly, the superior
court erred 	by reversing the 	Hearing Examiner's decision. 	Although we need 	only
determine that one requirement of BMC 18.10.020(B) was not met to warrant denial of a
permit, we also conclude that the other requirements were met.
B. 	Further Infringement of Land Use Development Ordinance
The Hearing Examiner concluded that Lind's proposal fails to satisfy the criteria
of BMC 18.10.020(B)(3) because it creates a lot that cannot comply with the Land Use
Development Ordinance's setback requirements. 	As stated in Conclusion of Law 6:
The proposed lot line adjustment would result in further infringement of the
provisions 	of 	the 	Land 	Use 	Development 	Ordinance. 	As 	currently
configured the existing lots have a depth of approximately 110 feet. 	As
proposed Lot A has a depth of approximately 50 feet. 	Because Harrison
Street has a right-of-way width of approximately 33 feet, less than the
required standard of 60 feet, BMC 20.10.080E provides that the centerline
for setback purposes is the farthest edge of the existing right-of-way that
was dedicated by the subject property. 	Harrison Street was dedicated
entirely by the Happy Valley plat. 	None of the right-of-way was dedicated
from the subject property so the centerline for setback purposes is the
southern property line of the lots. 	BMC 20.30.040F requires a minimum
front yard setback of 50 feet from the centerline of the abutting street.
Application of the front yard setback requirement leaves no buildable area
on proposed Lot A. 	Application of the front and side yard (five feet on
11

No. 67877-9-1
each 	side) 	setback 	requirements to 	the 	existing 	smaller lot leaves 	a
buildable area of approximately 40 feet by 40 feet. 	The proposal seeks to
modify an existing lot that has sufficient dimensions to comply with the
front yard setback requirements of the Land Use Development Ordinance,
BMC 	20.30.040F, 	creating 	a 	lot 	that 	cannot 	comply 	with 	these
requirements.
While Lind contends Harrison Street was not intended to be the principal means
of access to the abutting property and therefore was not a through 	lot or a street
requiring setbacks, the 	Hearing Examiner's findings of fact that stated otherwise are
unchallenged 	and 	therefore 	verities 	on 	appeal. 	Finding 	of 	Fact 	9 	states: 	"The
applications for lot line adjustment and 	a wetland/stream permit were submitted to
obtain approval for the development of two single-family residences on the properties
with street access from Harrison Street." Finding of Fact 54 states:
The Harrison Street right-of-way is approximately 33.6 feet in width. 	It is
unimproved abutting the 	Lind 	Bros, property. 	A gravel driveway and
private structure encroachments are located within the right-of-way to the
east of the property. 	Harrison Street is a non-arterial, residential access
street. 	BMC 18.08.420 defines a "street" as a right-of-way having a width
of 30 feet or more which provides the principal means of access to the
property.
These findings are also supported by the record. The Lind proposal shows Lot A
abutting Harrison Street to the south. 	Additionally, testimony from Bruce Ayers, who
helped Lind prepare the application, concedes that Harrison Street was considered the
access road to avoid wetland impacts:
[Gjiven the impacts of improving Star Court, because that would go right
through 	the middle of the wetland 	and the buffers 	and 	cause greater
impact to develop Star Court road for access we then looked to the option
of accessing from Harrison Street because the wetland didn't encumber
Harrison Street as much as it does Star Court. 	So the decision to access
off Harrison Street was a legitimate and good faith effort to minimize our
impacts and not build a road on Star Court because we didn't want those
greater impacts.
12

No. 67877-9-1
Accordingly, the Hearing Examiner did not err by concluding that Lind's proposal further
infringes on the Land Use Development Ordinance by failing to comply with its setback
requirements. 	While Lind argues that the alternative would equally infringe on City
ordinances by having a greater impact on wetlands and buffers, the City correctly notes
that the 	requirement of BMC 18.10.020(B)(3) that the 	proposal not "further infringe"
applies to the City Land Use Ordinance, codified in Title 20 BMC, not the City's wetland
regulations which are codified in 	former chapter 16.50 	BMC, 	the 	Wetland Stream
Ordinance.
C. 	Improvement of Function and Utility of Existing Lots
The 	Hearing Examiner concluded that 	Lind's proposal 	does not improve the
function and utility of the existing lots because dedication of an additional right-of-way to
provide a standard 60-foot right-of-way width, combined with the setback requirements,
reduces the functional size of the property. 	The Hearing Examiner further concluded:
The proposal locates septic drainfields within the wetland buffer area. 	It
locates the 	access portion of Lot B within the wetland. 	Although the
existing configuration of the larger lot may not be ideal with respect to
avoidance of wetland and buffer impacts, the determination of the Director
that the proposal does not improve the overall function and utility of the
existing lots due to the wetland and buffer impacts is not erroneous. The
proposal does not improve the function and utility of the existing smaller
lot which is currently located almost entirely outside the wetland and buffer
areas that are 	shown 	on 	the site 	plan. 	Because of the deficiencies
previously noted with respect to proposed Lot A the proposal creates one
unbuildable 	lot and 	another that will 	require 	substantial 	impacts to 	a
wetland and buffer area for development. 	This does not appear to be an
improvement to the function and utility of the existing lots.
This conclusion is supported by the record. 	The exhibit showing the site plan
layout of the existing lots locates the smaller lot almost entirely outside of the wetland
and buffer areas, while the layout for the proposed lots shows that access and onsite
13

No. 67877-9-1
septic systems are located almost entirely within the wetland buffer. 	But Lind points
out that as the 	lots currently exist, 	only 	one 	house 	could 	be 	constructed 	without
impacting the wetland, whereas the proposed lot adjustment would result in having two
buildable lots outside of the wetland. 	Thus, 	at most, 	the 	record 	shows that both
configurations have equal impact on the function and utility on the land, but it cannot be
said with certainty that one is in fact an improvement over the other. 	Lind has therefore
failed to show that the Hearing Examiner erred by concluding that the proposal did not
improve the function and utility of the existing lots.
Because Lind's proposal fails to meet the four criteria required for a lot line
adjustment approval, Lind has failed to show that the Hearing Examiner's denial of the
lot line adjustment was error. 	Accordingly, the superior court's reversal of this decision
was in error and we reverse the superior court and affirm the Hearing Examiner's ruling.
Because 	Lind 	cannot 	proceed 	without 	approval 	of 	the 	lot 	line 	adjustment, 	a
determination 	on 	the 	issuance 	of 	the 	wetland/stream 	permit 	is 	unnecessary.
Accordingly, 	we reverse the superior court's order requiring 	that the City 	issue a
wetland/stream permit and that the Hearing Examiner issue a decision on Lind's appeal
of the conditions in the revised MDNS.
WE CONCUR:
S^^c^AfJ 	—SX*y
14