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

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
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 MARK QUENNEVILLE, an
individual,
Appellant.
No. 67878-7-1
(consolidated with No. 67974-1-1)
ORDER GRANTING MOTION
FOR RECONSIDERATION AND
AMENDING OPINION
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The 	respondent, 	Lind 	Brothers 	Construction, 	LLC, 	has 	filed 	a 	motion 	for
reconsideration, 	clarification, and/or amendment of the court's opinion filed April 8,
2013. 	The court has taken the matter under consideration and has determined that
the motion for should be granted, and that the opinion of the court should be amended.
Now, therefore, it is hereby
ORDERED that the motion for reconsideration is granted; and, it is further
ORDERED that the opinion of the court in the above-entitled cause filed April 8,
2013, be amended to read as follows:

No. 67878-7-1 / 2
DELETE the following sentence on page 6, 	under the analysis heading, first
section Vesting, which reads:
Mark Quenneville joins the City's appeal of the trial court's decision
and 	contends that the 	Hearing 	Examiner erroneously 	ruled 	that 	Lind's
application did not vest under the Wetland Stream Ordinance and instead
the new Critical Areas Ordinance applied.
REPLACE with the following sentence:
Mark Quenneville joins the City's appeal of the trial court's decision
and 	contends 	that the 	Hearing 	Examiner erroneously 	ruled 	that 	Lind's
application vested under the Wetland Stream Ordinance and instead the
new Critical Areas Ordinance applied.
Done this 00 	day of 	I "IMAA/" 	2013.
FOR THE COURT:
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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 MARK QUENNEVILLE, an
individual,
Appellant.
No. 67878-7-1
(consolidated with No. 67974-1-1)
DIVISION ONE
UNPUBLISHED OPINION
FILED: April 8, 2013
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Grosse, J. — The Bellingham 	Municipal Code (BMC) authorizes the city of
Bellingham 	(City) 	to 	determine 	what 	information 	is 	necessary 	to 	approve 	a
wetland/stream 	permit 	and to request that 	information 	from 	the applicant 	before
approving that permit. 	Thus, the Hearing Examiner correctly concluded that the City's
Director 	of 	Planning 	had 	authority 	to 	request 	from 	a 	builder 	applying 	for 	a
wetland/stream permit information about the category of a wetland on the property at
issue before 	issuing 	a decision on the permit. 	The trial 	court therefore erred by
reversing the Hearing Examiner's ruling. 	Accordingly, we reverse.

No. 67878-7-1 / 2
FACTS
Lind Brothers Construction, LLC (Lind) sought to build three single family homes
on three lots located on Wilken Street in Bellingham. 	The dimension of each lot is 40
feet by 100 feet. 	Because the 	property is in an area designated as single family
residential with a 20,000 square feet minimum lot, Lind submitted applications to the
City for a lot line adjustment permit. 	The lot line adjustment proposed to revise the lot
lines within the property to a layout that allows each of the lots to have at least 60 feet
frontage on Wilken Street and sufficient area in the front portion of the lot to site a
house. 	Because the rear portion of each proposed lot contains regulated wetlands, Lind
also applied for a wetland/stream permit to develop the proposed lots with residences,
including on-site septic systems, an access road, and utilities.
Lind submitted the permit applications on December 5, 2005, the day before the
City's 	new 	Critical 	Areas 	Ordinances, 	chapter 	16.55 	BMC, 	became 	effective 	and
replaced the Wetland Stream Ordinance, former chapter 16.50 BMC. 	The applications
included the forms and materials relating to the lot line adjustment and wetland/stream
permits, a partially completed and unsigned State Environmental Policy Act (SEPA)
checklist, and fees for both permits. 	SEPA fees were not paid until May 8, 2009. 	Lind
also submitted, along with the applications, a November 2005 wetland delineation report
prepared by Northwest Ecological Services, LLC (NES). 	This report identified the site
as a Category II 	wetland 	under the Wetland 	Stream 	Ordinance, 	which 	required 	a
minimum of 50-foot buffers. 	The City processed the wetland/stream application as
vested 	under the 	Wetland 	Stream 	Ordinance and 	did 	not 	notify 	Lind 	that 	the
applications were incomplete.

No. 67878-7-1 / 3
On June 21, 2006, the City requested additional information from Lind that would
show 100-foot buffers on wetlands, the locations of sewer/septic systems and other
utilities, 	access 	road 	dimensions 	and 	design, 	location 	and 	design 	of 	stormwater
facilities, site plans with setbacks, wetland and stream impacts from on and off site
development, 	and 	a 	completed 	SEPA checklist. 	The 	City also 	indicated 	that an
increase in the required buffer to at least 100 feet was necessary because the wetlands
performed at a high level, with one of them scoring 30 points for habitat function, which
is particularly sensitive to disturbance.
On August 10, 2006, the City sent a letter to Lind documenting an August 7,
2006 meeting between Lind's representative, Bruce Ayers, and City Planner Kim Weil
during 	which 	Ayers presented 	a site 	plan 	with 	100-foot 	buffers 	that appeared 	to
encompass the entire site and did not locate septic systems. 	Weil suggested Lind work
with a wetland biologist to explore buffer averaging and noted that onsite septic systems
were not permitted within the buffer. 	Weil further noted seeking a variance was an
option.
On December 5, 2008, Lind submitted additional information to the City, including
a revised site plan and proposed street and utility construction. 	Lind also provided a
completed SEPA checklist, a plat certificate, and a Wetland Delineation and Mitigation
Plan prepared in November 2008 by NWC, LLC.
On February 27, 2009, the City requested from 	Lind a mailing for Notice of
Application and the SEPA fee. 	On May 8, 2009, Lind responded to this request. 	On
May 22, 	2009, the City issued a Notice of Application for the proposal. 	The City
received comments from the public during and after the designated public comment

No. 67878-7-1/4
period.
On June 27, 2009, the City issued a Mitigated Determination of Non-Significance
(MDNS) for the proposal, which contained several conditions. 	Lind filed an appeal of
the MDNS on July 8, 2009.
On 	August 	7, 	2009, 	Weil 	informed 	Lind that the 	City 	had 	received 	public
comments asserting that the wetlands on the site actually met the criteria for a Category
I "mature forested wetland," and that she had been contacted by Susan Meyer of the
Department of Ecology, who had also raised this issue. 	Weil indicated that the City had
determined that a study of the trees within the wetlands was warranted and provided
alternatives for Lind to consider, 	including 	conducting a field analysis or adding a
condition to the MDNS requiring the tree assessment. 	Lind did not respond.
On August 28, 	2009, 	the 	City issued 	a 	revised 	MDNS, 	adding 	a 	condition
requiring 	a 	tree 	assessment 	before 	submitting a 	building 	permit application. 	On
September 11, 2009, Lind filed an appeal of the revised MDNS. 	On January 21, 2010,
the City issued a second revised MDNS, which reduced the required buffer from 100
feet to 50 feet and required Lind to demonstrate that the wetland was not a mature
forested wetland before applying for any development permit or disturbing the site.
On January 22, 2010, the City approved the lot line adjustment permit, subject to
conditions including compliance with the wetland/stream permit conditions and providing
a minimum 60 feet of lot width abutting Wilken Street for each lot. 	On that same day,
the City also approved the wetland/stream permit, subject to conditions specified in the
approval.
On February 4, 2010, Lind appealed the conditions of the wetland/stream permit

No. 67878-7-1 / 5
and the second revised MDNS. 	Mark Quenneville, a neighboring property owner, filed
an 	appeal 	of the 	permit approvals, 	contending 	that they 	were 	not 	complete 	and
therefore not vested under the Wetland Stream Ordinance, that Lind's proposal did not
meet procedural and substantive SEPA requirements, and that the proposal was not
consistent with the requirements of the Wetland Stream Ordinance in any event.
The Hearing Examiner concluded that the permit application vested under the
Wetland Stream Ordinance and was not subject to the new ordinance. 	But the Hearing
Examiner concluded that the Director erred by issuing the permits before determining
the proper category of the wetlands at issue, recognizing that the Director did not have
the 	information he deemed 	necessary before 	issuing 	the 	permit. 	Accordingly, 	the
Hearing Examiner ordered the wetland/stream permit be remanded to the Director to
determine the category of wetland involved.
The 	Hearing 	Examiner 	further 	concluded 	that 	the 	wetland/stream 	permit
conditions were proper1 	and that the 	Director did 	not err by 	making 	the lot 	line
adjustment conditional on compliance with the wetland/stream permit. 	The Hearing
Examiner also rejected Lind's argument that the SEPA conditions of the MDNS were
unauthorized, 	concluding that 	the 	MDNS 	requirements 	did 	not attempt to 	impose
additional mitigation under SEPA, but simply repeated the requirements of applicable
development regulations.
Lind appealed the Hearing Examiner's decision to the Whatcom County Superior
Court under the Land Use Protection Act (LUPA). 	The trial court reversed the Hearing
1 The Hearing Examiner did find that two conditions of the MDNS needed clarification.
These 	conditions 	related 	compliance 	with 	street 	standards 	and 	water 	and 	sewer
services.
5

No. 67878-7-1 / 6
Examiner's decision as follows:
ORDERED 	that 	Petitioner 	Lind 	Brothers 	appeal 	is 	GRANTED 	in 	its
entirety 	and 	the 	decision 	issued 	by the 	City 	of 	Bellingham Hearing
Examiner below is hereby REVERSED to the extent that Petitioner has
Appealed that ruling, including, but not limited to the following orders:
It is ORDERED that
1) 	The 	Lot 	Line 	Adjustment 	Permit is AFFIRMED, 	with 	all
conditions challenged by Lind being STRICKEN.
2) 	The 	Wetland 	Stream 	Permit 	is 	AFFIRMED, 	with 	all
conditions challenged by Lind being STRICKEN.
3) 	The City shall condition the permits on Lind's compliance
with the 2008 mitigation plan by NWC.
4) 	Any variances required for Lind to construct three homes on
the subject property are hereby granted.
5) 	This 	Court 	retains 	jurisdiction 	to 	ensure 	the 	City 	of
Bellingham complies with this order and processes the permits for
the project in a timely manner.
The City and Quenneville appeal.
ANALYSIS
1. 	Vesting
Mark Quenneville joins the City's appeal ofthe trial court's decision and contends
that the Hearing Examiner erroneously ruled that Lind's application did not vest under
the Wetland Stream Ordinance and instead the new Critical Areas Ordinance applied.
This ruling was not appealed to the trial court by any of the parties. 	Lind contends that
as a result, Quenneville is barred from raising it now because he failed to preserve it for
review.
LUPA is the exclusive means of appealing a land use decision.2 	A timely LUPA
petition 	must be filed 	and 	served within 21 	days of the 	issuance of the land 	use
2 RCW 36.70C.030; Holder v. Citv of Vancouver, 136 Wn. App. 104, 107-08, 147 P.3d
641 (2006).
6

No. 67878-7-1 / 7
decision.3 	A land use petition is barred, and the court may not grant review, unless the
petition is timely filed and served.4 	Because Quenneville did not file a LUPA petition
challenging the Hearing Examiner's ruling on the vesting issue, his claim appears to be
barred on review.
Nonetheless, the claim lacks merit. 	Under the vesting provisions of the BMC, "an
application for a land use permit or other project permit shall be considered under the
development regulations in effect on the date of filing that complete application as
defined 	in 	BMC 	21.10.120(A)."5 	BMC 	21.10.120(C) addresses 	the procedures to
determine whether an application is complete:
Within 28 days after receiving a permit application, the City shall mail, fax
or otherwise provide to the applicant or his authorized representative a
written determination which states either that the application is complete
or that the application is incomplete and what is necessary to make the
application 	complete. 	If the 	Director 	does 	not 	provide 	a 	written
determination with the 28 days, the application shall be deemed complete
as of the end of the 28th day.
Quenneville argues that because the City did 	not provide a determination of
completeness the application was not deemed complete until 28 days after it was filed
and when the new ordinance was in effect. 	But as Lind contends, these provisions do
not state that the application can only be deemed complete on the 28th day when the
City does not notify the applicant that the application was incomplete. 	Rather, this
addresses the situation where completeness becomes an issue after filing. 	Here, there
is nothing in the record to suggest that the application was incomplete at the time of
filing. 	Thus, absent evidence that it was incomplete at the time of filing, the controlling
3 RCW 36.70C.040(3)
4 RCW 36.70C.040(2).
5 BMC 21.10.260.

No. 67878-7-1 / 8
date for purposes of vesting is the date it was filed, which was before the new ordinance
went into effect. 	Otherwise, the interpretation advanced by Quenneville would lead to
the absurd result that the City could "unvest" an application simply by failing to make a
completeness determination within the vesting period.
2. 	Director's Reguest for Information about Wetland Category
The City contends that the trial court erred by reversing the Hearing Examiner's
ruling that the permit be remanded to the Director to determine whether the wetland was
a Category 	I wetland before issuing the permit. 	The City argues that the Hearing
Examiner properly remanded for the Director to gather more information because the
Wetland Stream Ordinance authorized the Director to request information about the
category of wetland involved before issuing the permit. We agree.
Former BMC 16.50.060 provides:
Collection 	of 	information 	necessary 	for 	the 	determination 	of wetland
boundaries (delineation) and category will ultimately be the responsibility
of the property owner. 	Normally this will be done via a field survey by a
wetland specialist applying the wetland delineation method and category
types. 	The City-wide wetland inventory maps and data sheets will assist
in this process. When, in the opinion of the Director, sufficient information
exists in the City's wetland inventory, the requirement for a full or partial
delineation and category determination may be waived.
The Director shall determine when a permit application is required and
what additional information may be necessary.. . .
Former BMC 16.50.080(B) imposes buffer requirements determined by the category of
wetland at issue. 	Thus, the Director was required to first determine which category was
involved in order to adequately protect the wetland in accordance with former BMC
16.50.030(A)(3). 	Here, 	the 	Director 	determined 	that 	additional 	information 	was
necessary to properly categorize the wetland based on public comments suggesting
8

No. 67878-7-1 / 9
that the wetland met the criteria for Category I wetlands requiring a larger buffer. 	This
was contrary to the categorization of the wetland in the 2005 NES report submitted by
Lind.
Lind contends that the City should have conducted an investigation itself into the
credibility of the public comments before requesting Lind to provide a mature tree study.
But as the 	City correctly notes, former BMC 	16.50.060 places the 	responsibility to
collect such information on the applicant. 	Lind further argues that the City was required
to 	engage 	in the 	process 	under former 	BMC 	16.50.060 	to 	challenge 	a 	wetland
delineation from the NES report. 	But as the City points out, that provision addresses
wetland boundary determinations, not wetland category determinations, stating:
A determination of the wetland boundary provided by the applicant shall
be subject to the approval of the Director who may require adjustments to
the boundary delineation. 	In the event the adjusted boundary delineation
is contested by the applicant, the Director and the applicant shall jointly
select a wetland specialist who will delineate the disputed boundary as the
final determination at the property owner's expense.'61
Thus, Lind fails to show that the Hearing Examiner erred by concluding that the Director
was authorized to request additional information he deemed necessary to determine the
category of wetland before issuing the permit. 	Accordingly, we hold that the trial court
erred by reversing this ruling.
3. 	MDNS Conditions
The City contends that the conditions of the MDNS were all based on provisions
of the BMC and did not attempt to impose additional SEPA mitigation as Lind asserts.
We agree.
6 Former BMC 16.50.060.

No. 67878-7-1/10
The second revised MDNS imposed the following conditions:
1) 	Revised 	Condition: 	The 	buffer 	for 	the 	main 	wetland 	onsite,
Wetland A (Wetland B is part of Wetland A) shall have a minimum 50-foot
buffer 	which 	may 	be 	averaged. 	Averaging 	shall 	be 	calculated 	in
accordance with BMC 16.50.040.
2) 	No portion of the development is allowed in the wetland buffer after
averaging 	occurs, 	including, 	but 	not 	limited to 	onsite 	septic systems,
stormwater facilities, buildings, patios or any other development that would
alter buffer vegetation and function are not allowed in the wetland buffer.
A 	driveway 	may 	be 	located 	with 	the 	Wilken 	right-of-way 	if 	all
environmental impacts are mitigated on site as presented in a mitigation
plan approved by the City.
3) 	Wetland buffer impacts are limited to those that can be mitigated on
site as presented in a mitigation plan approved by the City.
4) 	Wetland 	buffer 	mitigation shall 	be 	designed, 	implemented, 	and
maintained in accordance with the most recent Dept. of Ecology (DOE)
guidance on wetland mitigation. 	The wetland buffer mitigation plan shall
demonstrate how each of the wetland functions is being protected by the
mitigation plan.
5) 	Ifwork is required to replace or extend the culvert, an HPA from the
Washington Dept. of Fish & Wildlife (WDFW) shall be obtained prior to any
site work.
6) 	If any wetland fill occurs, the Army Corps of Engineers shall be
notified and written approval shall be obtained from the Army Corps of
Engineers and provided to the City prior to any site work.
7) 	A City Wetland/Stream Permit shall be obtained prior to any site
disturbance.
8) 	Access to the site shall be from a minimum standard improved
street within a 60-foot right of way.
9) 	An 8-inch water and 8-inch sewer public mains shall be extended
across the full frontage of the site in compliance with BMC 15.08.080 and
15.12.070, respectively.
10) 	New Condition: Prior to any development permit application or site
disturbance, demonstrate that Wetland A (Wetland B is part of Wetland A)
is not a mature forested wetland as defined by the Dept. of Ecology's
Wetland 	Rating 	System 	for 	Western 	Washington 	(DOE 	2004) 	in
accordance with protocol approved by the Dept. of Ecology.
For the City, Kim Weil testified that the basis of each condition imposed in the
MDNS was found 	in the BMC as follows: 	Condition 	1 was based on former BMC
16.50.080(B), which sets 	buffer standards; 	Condition 2 was based on former BMC
16.50.080(D), which specifies and limits permitted uses within the buffer; Condition 3
10

No. 67878-7-1 /11
was based on former BMC 16.50.030(A)(2), which states the purpose of former chapter
16.50 BMC as adhering to a policy of "no net loss of regulated wetland and stream
functions;" and Condition 4 was based on former BMC 16.50.080(A), which specifies
buffer criteria "to provide the most effective protection of the wetland/stream system
based on actual site circumstances."
Weil further testified that Conditions 5 and 6 addressed federal and state wetland
regulations under the Clean Water Act, which gives authority to the Army Corps of
Engineers and DOE to regulate wetlands. 	She also testified that both conditions were
based on former BMC 16.50.100, which provides, "Whenever a project may involve
work in a wetland or stream, proponents should consult with the U.S. Army Corps of
Engineers, 	State 	Department 	of 	Ecology, 	Department 	of 	Fisheries 	or 	Wildlife,
Department of Natural Resources or other appropriate agencies regarding their permit
requirements."7 	Weil 	also 	testified 	that 	Condition 	7 was 	based 	on 	former 	BMC
16.50.090(A), which requires a permit for regulated activity within a regulated wetland,
stream, or buffer area. 	She further noted that BMC 16.20.200 of the City SEPA code
allows conditions that are based on the BMC.
As to Conditions 8 and 9, Weil testified that they are also based on the authority
granted by the City SEPA code. 	She testified that Condition 8 was based on BMC
13.04.070(B), which specifies minimum standards for residential access streets and
right-of-way. 	She also testified that Condition 9 was based on BMC 15.08.080 and
BMC 15.12.070, which specify when a water and sewer main extension is required.
Finally, she testified that Condition 10 was based on former BMC 16.50.050(A)(2) and
7 Former BMC 16.50.100(H).
11

No. 67878-7-1/12
16.50.080(B), which regulate mature forested wetlands and require a 100-foot minimum
buffer. 	Thus, Lind fails to show that the Hearing Examiner erred by concluding that the
conditions did not impose additional mitigation under SEPA. 	Accordingly, we hold that
the 	trial court 	erred 	by 	reversing 	the 	Hearing 	Examiner's 	ruling and 	striking the
conditions.
4. 	Effect of Lot Line Adjustment Permit
The City further contends that the Director properly conditioned issuance of the
lot line adjustment on issuance of the wetland/stream permit because approval of the
wetland/stream 	permit 	related 	to 	one 	of the 	criteria for approval 	of the 	lot line
adjustment. 	Lot line adjustment applications must follow the procedures in chapter
21.10 BMC, which establishes the standard procedures for land use and development
permit decisions made by the City.8 	BMC 21.10.100(D) permits the Director to approve
an application, approve an application with conditions, or deny an application. 	Four
criteria specified in BMC 18.10.020(B) must be met in order for the City to approve a lot
line adjustment: (1) no new lots are created; (2) each proposed lot meet minimum lot
standards or if the existing lot is already less than the required minimum is not further
reduced by the proposed adjustment; (3) the proposed adjustment does not further
infringe on the City Land Use Development Ordinance; and (4) the proposed adjustment
improves the overall function and utility of the existing lots.
Here, compliance with the conditions in the wetland/stream permit would result in
creating three building developments in the adjusted lots that would not be located in a
regulated 	wetland 	or 	buffer. 	Thus, 	compliance 	with 	the 	wetland/stream 	permit
BMC 18.10.020(A).
12

No. 67878-7-1/13
conditions would improve the overall function and utility of the lots, satisfying one of the
criteria for lot line adjustment approval. 	The Director's decision to condition issuance of
the 	lot line 	adjustment 	on 	approval 	of the 	wetland/stream 	permit was 	therefore
permissible under the code and consistent with the procedure for approving lot line
adjustments; issuance of the wetland/stream permit here simply established one of the
criteria required for approval of the lot line adjustment.
5. 	Evidence in Support of Hearing Examiner's Decision
The 	City 	contends 	that the 	Hearings 	Examiner's 	ruling 	was 	supported by
substantial evidence despite 	Lind's 	contentions to the contrary. 	Specifically, 	Lind
challenged Findings of Fact 43, 63, 64, 65, 66, and 68.
The record supports Finding of Fact 43: "Neither of the wetland delineation and
mitigation studies engaged in the field investigation necessary to determine the potential
existence of a mature forested wetland on the subject site and adjoining wetland areas."
The evidence in the record was Vikki Jackson's report, which did not state that she
performed the field analysis required to determine whether the wetlands met the criteria
for mature forested wetlands nor did it identify the wetland type on the wetland rating
field data form in the report. 	While Lind argues that Jackson's report was evidence that
the wetland did not meet 	the 	criteria of a 	mature forested 	wetland, the 	Hearing
Examiner resolved this factual dispute in the City's favor and this determination was
supported by the record. 	Accordingly, the challenge to this finding fails.
Lind also challenges Finding of Fact 68 that Kim Weil testified that the wetland
classification for a nearby property in Fairhaven Highlands was changed to Category I
because of the presence of a "mature forested wetland." 	Lind contends that this was
13

No. 67878-7-1 /14
not within the scope of the Hearing Examiner's review because it involves a different
project. 	But as the City notes, this 	fact was relevant because of the connectivity
between the wetlands on Lind's property and the Fairhaven Highlands property and
Vikki Jackson conducted field analysis on both properties. 	In any event, Lind does not
contend that this 	finding 	was 	not 	supported 	by the 	record. 	Lind's challenge to 	it
therefore fails.
The record also supports Finding of Fact 63 that Quenneville "conducted an
informal survey of trees on or near the subject property and counted [and] measured
about 	18 	trees 	that were 	at 	least 	21-inches 	in diameter 	at 	breast 	height." 	Lind
challenged this finding contending that Quenneville's observations were contradicted by
the 2005 	NES report 	and Jackson's testimony. 	But the existence of contradictory
evidence is not a basis for challenging a finding so long as it is supported by the record;
factual disputes are resolved by the fact finder and may not be reviewed on appeal.
Here, the record contains Quenneville's testimony about his observations, which the
Hearing Examiner found credible. Lind's challenge to this finding therefore fails.
Lind's remaining challenges to the findings of fact suffer from this same flaw as
he simply points out contradictory evidence or contests the truth of the witnesses'
observations.9 	Again, the Hearing Examiner resolves those issues of fact and those
factual determinations cannot be challenged on appeal if supported by the 	record.
9 Finding 	of Fact 64 states 	the observations of John 	McLaughlin 	a conservation
biologist, who observed the site; Finding of Fact 65 states the comments of Nick Sky, an
ecologist, 	who visited 	the site and testified 	about the need for additional analysis;
Finding of Fact 66 states the comments of Dr. Sarah Cooke who visited the site and
concluded that the smaller wetlands are part of the larger connected system, requiring a
larger buffer; and Finding of Fact 68 states Kim Weil's conclusions about the necessity
for a 100-foot buffer to protect the wetlands.
14

No. 67878-7-1/15
Here, 	the record contains the testimony of witnesses about their observations and
opinions, which the Hearing Examiner found credible.
6. 	Variances
Finally, the City contends that the trial court had no authority to grant "[a]ny
variances required for Lind to construct three homes on the subject property." 	The City
correctly notes that variances were not at issue on the LUPA appeal and therefore not
within the scope of the trial court's review. 	LUPA defines an appealable "[l]and use
decision" as the final determination by a local jurisdiction on an application for a project
permit.10 	The trial court may affirm or reverse the land use decision under review or
remand 	it for modification or further 	proceedings.11 	Here, 	there was no 	land 	use
decision to affirm, reverse, or remand with respect to any variances; in fact Lind did not
apply for variances. 	Thus, the trial court exceeded its authority in the LUPA appeal by
granting Lind "[a]ny variances required" to construct the homes on the subject property.
We reverse.
WE CONCUR:
\Q/y_//sAg^ 	ft.CJ.
10 RCW 36.70C.020(2).
11 RCW36.70C.140.
ATV^ 	A
15