FRANK L. KURTZ, J.
Thomas E. Myers is the owner of Myers' Mobile Home Park in Cheney. Mr. Myers filed a petition and complaint for damages under the Land-Use Petition Act (LUPA) after the hearing examiner affirmed three land use decisions affecting the park's access connections and development. On appeal, Mr. Myers challenges the superior court's order of partial summary judgment dismissing his LUPA petition and affirming the hearing examiner's decision (1) affirming the City's refusal to grant Mr. Myers an access permit for his existing access onto State Route 904 (hereinafter SR 904) and requiring him to move that access connection; (2) affirming the City's denial of an access permit for Washington Street and requiring him to create a new access connection onto SR 904; and (3) upholding the City's refusal to authorize further development within the mobile home park until Mr. Myers obtains approval of a binding site plan from the Cheney City Council. We affirm and grant attorney fees to the City.
FACTS
In 1994, Mr. Myers began negotiations to purchase Sunset Mobile Home Park in Cheney, Washington. Mr. Myers planned to renovate the existing 29 spaces and add 15 additional spaces for a total of 44 residential manufactured home spaces. The mobile home park is bordered by SR 904, which is not a city street, but a portion of the state highway system. In 1991, the Washington Legislature enacted RCW 47.50.040, which required that an access permit be obtained before an access road could be constructed and connected to any state highway.
In February 1995, Mr. Myers submitted a preliminary site plan depicting sewer, water, and utility lines and the location of 44 sites. This preliminary site plan also included the location of an access connection to SR 904 at the west end of the facility and an access connection to Washington Street at the east end. Shortly thereafter, Mr. Myers was informed through the Cheney Planning Department that the Washington State Department of Transportation (DOT) had determined that Mr. Myers must prepare an access permit application for the access connection from his proposed mobile home park to SR 904. The letter to the City is dated February 14, 1995.
In April, the City issued a grading and plumbing permit to Mr. Myers and he began the process of grading and preparation for installation of water and sewer lines. In May, the City Community Development Staff met to review this project. As a result of this meeting, a memorandum was sent to Mr. Myers indicating that the preliminary site plan was incomplete for a number of reasons. Primarily, City officials contended that the renovations to the mobile home park had to be consistent with the requirements of the Cheney Mobile Home Park Ordinance.
In May, Steve Worthington, the City Planning Coordinator, issued a stop order. Mr. Myers was advised that all work must stop pending submission of a revised site plan. He submitted a revised site plan on May 31 (hereinafter `revised plan'). The next day, June 1, Mr. Worthington approved the revised plan and John Jurkovac, an assistant planner and zoning inspector, stamped the revised plan `Approved.' Vol. 2, Item 19, Ex. A, Exhibit 14. SR 904 Access Permit Denial. Until September 9, 1995, all permits for access to SR 904 in Cheney were processed by the DOT pursuant to chapters 47.24 and 47.50 RCW. After that date, the City assumed the responsibility for administering the SR 904 access permit program. All access permits for city streets and for SR 904, when administered by the City, require the approval of the Director of Public Works.
In 1995, Mr. Myers constructed an access connection onto SR 904, without seeking a permit either from the DOT or the City. This connection was only 90 feet from the access to the adjacent mobile home subdivision. WAC 468-52-040(5)(b)(ii)(B) provides that: `The minimum distance to another public or private access connection shall be one hundred twenty-five feet.' In early 1996, Mr. Myers appealed the City's demand that he comply with the mobile home park ordinance and sidewalk construction ordinance. Apparently, as part of this proceeding, Mr. Myers requested a determination that he was exempt from the state statute requiring him to obtain an access permit for the new access he had created onto SR 904. The hearing examiner concluded:
10. The Hearing Examiner has no authority to limit the jurisdiction of the Washington State Department of Transportation in terms of its regulations relating to access to Highway 904. Therefore, if the Department of Transportation requires access permits for Highway 904, the requirement to obtain those permits is not superseded by this decision.
Vol. 3, Item 22, Ex. `CP 207-212' at 212.
Mr. Myers did not challenge this determination in the LUPA petition he filed contesting the hearing examiner's determination that the mobile home park must comply with the sidewalk ordinance. He also did not appeal the hearing examiner's conclusion that the mobile home park was grandfathered with regard to compliance with the mobile home park ordinance. Instead, his first LUPA appeal challenged the hearing examiner's determination that Mr. Myers must comply with the sidewalk ordinance because the total renovation of the mobile home park constituted `new construction' and `substantial improvement' as defined in the sidewalk ordinance. Vol. 3, Item 22, Ex. `CP 207-212' at 211. The superior court reversed the decision of the hearing examiner on the ground that the terms such as `building' and `improvement' in the sidewalk ordinance did not encompass the mere repairing of existing water and sewer lines. Vol. 3, Item 22, Ex. `CP 1154-1157.' In an unpublished opinion, Division Three affirmed the superior court.
Mr. Myers contends that prior to early 1997, the City failed to advise him that the location of the access connection to SR 904 was inappropriate or that the access connection would have to be moved. Mr. Myers points to a letter written January 10, 1995, informing him of the results of the City's internal staff environmental review. This document states that: `A minimum of 50' is required from the mobile home park entrance/exit on Washington St. to the intersection of Washington St. and SR-904.' Vol. 2, Item 19, Ex. A, Exhibit 12.
We note that this refers to the Washington Street access connection, not the SR 904 connection.
However, in early 1995, Mr. Myers was informed through the City Planning Department that the DOT had determined that Mr. Myers must prepare an access permit application for the SR 904 connection. Moreover, the City maintains that Mr. Myers had been warned that he was taking a risk proceeding with the plumbing installation while the site plan development process was still underway.
For example, in a letter dated February 14, 1997, Paul Schmidt, the Director of Public Works, advised Mr. Myers that he must apply for an access permit on SR 904. In a letter dated April 3, 1997, the city attorney advised Mr. Myers that `the existing entrance/exit from the park encroaches the adjoining property, and will not be permitted.' Vol. 2, Item 19, Ex. A, Exhibit 25. Similarly, in a letter dated May 7, 1997, the city attorney notified Mr. Myers that:
All of the historical information we can find shows access to Sunset Park was northeast of the newly constructed paved access. A mobile home was parked where the new road was built.
Vol. 1, Item 4, Ex. 12. Additionally, in a letter dated May 29, 1997, the city attorney notified Mr. Myers that:
The city does insist a lawful access be established. If you choose to preempt enforcement against the unpermitted access by bringing a court proceeding that is up to you. If you initiate a court proceeding, at that time I will contest a TRO.
At this time I see no alternative to initiating enforcement to close the unpermitted access.
Vol. 1, Item 4, Ex. 13.
On June 7, 2000, the City formally notified Mr. Myers that he did not have the required permit for his access to SR 904. In response, Mr. Myers filed for an access permit. On August 16, the City denied Mr. Myers's application for an access permit for the reason that the location of the access was less than 125 feet from an existing connection. Mr. Myers was also advised that his existing access was illegal and would be closed when the City installed curbs and sidewalks along SR 904 in the City of Cheney. Mr. Myers appealed the permit denial.
Washington Street Access Permit Denial.
In 1995, Mr. Myers created an access from the mobile home park onto Washington Street by bringing in dirt to level a portion of the property. In a letter dated February 14, 1997, Mr. Schmidt advised Mr. Myers that the City would not issue a permit for this section of Washington Street unless it received a proposal to improve Washington Street for dust and stormwater drainage. In other words, the City was informing Mr. Myers that in order to use Washington Street as an access to his mobile home park, he must agree to pave it. Mr. Myers refused to pay for any improvements.
By a letter dated July 19, 2000, Mr. Myers was notified that he must submit an application for a permit for the access on Washington Street. Mr. Myers submitted an application for an access onto Washington Street. On August 21, 2000, this application was rejected in a letter from Don MacDonald, Public Works Director, stating:
Washington Street is unimproved and the City has already had complaints about dust etc., caused by traffic from the Myers Park. [And,] since there is no improvement on Washington Street to take care of drainage etc., the unimproved street is simply not capable of handling the amount of traffic which the Myers Park has been and will be generating. The City does not have the financial resources to make the necessary improvements to Washington Street in order to accommodate your requested access.
Vol. 2, Item 6, Letter dated Aug. 21, 2000.
Although the City concedes that the cost of maintaining Washington Street is minimal, the City states that it lacks the resources to pave or improve the street, particularly for the sole benefit of the mobile home park and its one neighbor to the east. Hearing Examiner's Decision. Mr. Myers appealed three actions by the City to the hearing examiner. First, Mr. Myers appealed Mr. MacDonald's decision of
August 16, 2000, denying Mr. Myers's application for an access permit onto SR 904 and advising him that the access was illegal and would be closed when curbs and sidewalks were installed under the SR 904 corridor enhancement project. Second, Mr. Myers appealed Mr. MacDonald's decision of August 21, 2000, denying Mr. Myers's application for an access permit for Washington Street and advising him to apply for a second permit onto SR 904 and that his present access would be closed when construction of the SR 904 corridor enhancement project was completed. Third, Mr. Myers appealed Mr. Schmidt's decision of August 31, 2000, advising Mr. Myers that the City would not approve any of the additional 15 new sites until all of the requirements of the Cheney Municipal Code (CMC) 20.05 were met.
The hearing examiner affirmed the City's refusal to issue access permits onto SR 904 and Washington Street. The hearing examiner concluded that the development of the 15 additional lots was grandfathered with regard to the applicability of CMC 20, but that Mr. Myers must still comply with chapter 58.17 RCW, obtain access permits, and comply with health, safety and welfare permit requirements.
LUPA Appeal.
Mr. Myers filed a land use petition and complaint for damages in superior court. The superior court entered an order of partial summary judgment dismissing his LUPA petition and affirming the hearing examiner's decision (1) affirming the City's refusal to grant Mr. Myers an access permit for his existing access onto SR 904 and requiring him to move that access connection; (2) affirming the City's denial of an access permit for Washington Street and requiring him to create a new access connection onto SR 904; and (3) upholding the City's refusal to authorize further development within the mobile home park until Mr. Myers obtains approval of a binding site plan from the Cheney City Council. The superior court further held that `all claims of civil rights violations are bifurcated and are not effected by the dismissal of this LUPA portion of the Complaint.' Clerk's Papers (CP) at 224. Mr. Myers appeals contending the court erred by dismissing his LUPA petition. The City requests attorney fees pursuant to RCW 4.84.370.
ANALYSIS
Standard of Review.
The standard of review to be employed by the superior court is set forth in RCW 36.70C.130. This court stands in the same position as the superior court when reviewing the underlying administrative decision. Biermann v. City of Spokane, 90 Wn. App. 816, 821, 960 P.2d 434 (1998), review denied, 137 Wn.2d 1004 (1999).
Under LUPA, a reviewing court may grant relief under any or all of the six circumstances set forth in RCW 36.70C.130: (a) the body or officer engaged in unlawful procedure or failed to follow a prescribed process; (b) the land use decision is an erroneous interpretation of law; (c) the land use decision is not supported by substantial evidence; (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; and (f) the land use decision violates the constitutional rights of the party seeking relief. RCW 36.70C.130(1)(a)-(f). In applying these standards, we review the City's land use decision based on the administrative record. RCW 36.70C.120(1). We review factual findings for substantial evidence, and conclusions of law de novo. Biermann, 90 Wn. App. at 821.
Here, the hearing examiner's decision was rendered as the result of a motion for summary judgment. When reviewing an order granting summary judgment, this court considers all facts and reasonable inferences in the light most favorable to the nonmoving party. Kahn v. Salerno, 90 Wn. App. 110, 117, 951 P.2d 321 (1998). Under RCW 36.70C.140, this court may affirm or reverse the land use decision under review, or the matter may be remanded for modifications or further proceedings.
Access to SR 904.
RCW 47.50.040(1) provides: `No connection to a state highway shall be constructed or altered without obtaining an access permit[.]' Prior to September 9, 1995, all permits for access to SR 904 in Cheney were processed by the DOT pursuant to chapters 47.24 and 47.50 RCW.
The City assumed the responsibility of administering the access permit program for SR 904 by enacting Ordinance Q-52 in April 1995. However, this ordinance did not go into effect until September 9. Significantly, the separation distances for access points onto state highways are established by the DOT and the City has no legal authority to change those mandatory requirements. The separation distances incorporated in Ordinance Q-52 — now codified in CMC 12.62.060 — are the mandatory minimal separation distances required by the DOT. See WAC 468-52-040.
The facts demonstrate that in early 1995, Mr. Myers was informed through the Cheney Planning Department that the DOT had determined that an access permit application would be required regarding the SR 904 access. The facts also indicate that access to SR 904 was constructed after Mr. Myers had been notified of the need for a permit to access SR 904. Mr. Myers argues that the preliminary site plan approved by a city employee in June 1995 fulfills any requirements for the state-mandated permit, but this argument is without merit. In June 1995, the City had no authority to issue an access permit for SR 904. Mr. Myers further contends that there is a question of fact as to whether he knew his access to SR 904 was illegal prior to its creation. More specifically, he asserts that although he was aware that the DOT would require an access permit before he could use the SR 904 connection, he was not aware that the location of the SR 904 connection was a problem. This is not a material question of fact. Mr. Myers knew there was a state-mandated permit requirement; he cannot successfully argue here that the permit requirement was inapplicable because he had no inkling that the permit might not be granted.
The uncontroverted facts establish that Mr. Myers was aware of the permit requirement in February 1995 and that he failed to apply for a permit before he constructed the SR 904 access. Equitable Estoppel. Mr. Myers asserts that equitable estoppel applies here because the City's demand that Mr. Myers close the connection to SR 904 is inconsistent with the City's approval of Mr. Myers's revised plan that depicted the locations of the access connections to both SR 904 and Washington Street.
The elements of equitable estoppel are: (1) a party's admission, statement, or act inconsistent with its later claim; (2) action by another party in reasonable reliance on the first party's act, statement, or admission; and (3) injury that would result to the relying party from allowing the first party to contradict or repudiate the prior act, statement, or admission. Robinson v. City of Seattle, 119 Wn.2d 34, 82, 830 P.2d 318 (1992). Equitable estoppel is not favored and each element must be shown by clear, cogent, and convincing evidence. Id. Estoppel cannot lie where both parties can determine the law and have knowledge of the underlying facts. Lybbert v. Grant County, 141 Wn.2d 29, 35, 1 P.3d 1124 (2000).
The doctrine of equitable estoppel will not be applied where its application would interfere with the discharge of governmental duties or where the officials whose conduct is in question acted beyond their power. City of Mercer Island v. Steinmann, 9 Wn. App. 479, 481, 513 P.2d 80 (1973). `Estoppel will not be applied against a municipal corporation acting in a governmental capacity unless it is clearly necessary to prevent obvious injustice.' Id. at 482 (citing Bennett v. Grays Harbor County, 15 Wn.2d 331, 341, 130 P.2d 1041 (1942)).
Significantly, `those who deal with public officials must ascertain the extent of their authority, and public officers cannot permit citizens to act contrary to the law.' Mercer Island, 9 Wn. App. at 482. Mr. Myers concedes that the City did not have authority to grant access onto SR 904 in June 1995. Moreover, the uncontroverted facts in this case demonstrate repeated attempts by the City to get Mr. Myers to file a permit application for the SR 904 access connection.
For instance, in February 1995 Mr. Myers was informed that the DOT would require him to obtain an access permit for the SR 904 connection. Significantly, Mr. Myers recognized the problem and made reference to the controversy in his previous LUPA petition. In view of these facts, Mr. Myers cannot argue that he reasonably relied on the City's approval of his revised plan as an alternative means to comply with the DOT's permit requirement. Furthermore, equitable estoppel applies only to prevent an obvious injustice. Mr. Myers was aware of the permit requirement and chose to proceed without filing a permit application — despite requests that he do so. There is no obvious injustice. Moreover, as the court concluded in Eastlake Cmty. Council v. Roanoke Assocs., Inc., 82 Wn.2d 475, 484-85, 513 P.2d 36 (1973): `Defendant started the project with full awareness that there were multiple, serious legal obstacles and cannot now claim relief simply because money was expended in the face of an awareness it might not have a legal right to proceed.' For these reasons, we reject Mr. Myers's request for relief based upon the doctrine of equitable estoppel.
Res Judicata.
Mr. Myers argues that the City's denial of an access permit to SR 904 is barred by the doctrine of res judicata. The term res judicata encompasses claim preclusion, also referred to as res judicata, and issue preclusion, also known as collateral estoppel. Shoemaker v. City of Bremerton, 109 Wn.2d 504, 507, 745 P.2d 858 (1987). Under claim preclusion, all issues that might have been raised and determined are precluded, preventing a plaintiff from bringing the same claim under a different theory. Id. When the plaintiff's claim is clearly a new, distinct claim, issue preclusion prevents the relitigation of an issue that has already been litigated and determined. Id.
The hearing examiner noted that Mr. Myers had raised the issue of the need for an access requirement as part of an earlier proceeding. In that proceeding, the hearing examiner concluded that he lacked the authority to limit the jurisdiction of the DOT with regard to the regulations relating to access onto SR 904. In this proceeding, the hearing examiner noted that Mr. Myers was aware of the earlier decision and had amended his complaint to drop the issue. Significantly, the issue as to the City's denial of Mr. Myers's application for access to SR 904 was not before the hearing examiner in the earlier proceeding. Hence, this issue may be litigated as part of this proceeding.
The City suggests that Mr. Myers should have appealed the `land use decisions' contained in (1) the May 7, 1997 letter informing him that access from his mobile home park to SR 904 was not grandfathered, and (2) the May 29, 1997 letter from the city attorney informing him that the City would close the unpermitted access. The purpose of LUPA is to `provide consistent, predictable, and timely judicial review' of local land use decisions. RCW 36.70C.010.
Under RCW 36.70C.020(1), a `land use decision' is defined as `a final determination by a local jurisdiction's body or officer with the highest level of authority to make the determination, including those with authority to hear appeals.' These letters do not constitute `land use decisions' in the context of this case. Nothing in these letters prevents Mr. Myers from litigating the City's subsequent decision to deny his application for a permit onto SR 904.
We reject Mr. Myers's request for relief based upon the doctrine of res judicata. Arbitrary and Capricious. Mr. Myers contends the denial of his permit application was arbitrary and capricious. A reviewing court will overturn the decision of a governmental body only if the decision is arbitrary, capricious, or contrary to law. Citizens for a Safe Neighborhood v. City of Seattle, 67 Wn. App. 436, 439, 836 P.2d 235 (1992). A decision is arbitrary and capricious if it is a willful and unreasonable action taken without consideration for or regard to the facts and circumstances. Hayes v. City of Seattle, 131 Wn.2d 706, 717, 934 P.2d 1179, 943 P.2d 265 (1997) (citing Kendall v. Douglass, Grant, Lincoln Okanogan Counties Pub. Hosp. Dist. No. 6, 118 Wn.2d 1, 14, 820 P.2d 497 (1991)).
Mr. Myers advances two reasons for his proposition that the City's denial of his permit for access to SR 904 was arbitrary and capricious. First, he argues that the City effectively granted its permission for his access to SR 904 by approving his revised plan in June 1995. We disagree. At that time, the City had no authority to issue a permit for access onto SR 904. Second, Mr. Myers contends he was told he needed an access permit, but that he was not told that the location of the access connection was illegal until 1997. We disagree. A governmental entity need not set forth all of the problems that might be encountered during the permit process when informing an owner or developer that a permit is required.
Conclusion.
In summary, the hearing examiner correctly affirmed the City's denial of an access permit onto SR 904. Denial of Access Permit for Washington Street. Mr. Myers created an access to Washington Street on the east end of his property in 1995 without obtaining an access permit from the City. When he applied for an access permit in the summer of 2000, the permit was denied. In denying the permit, the City explained that Washington Street is an unimproved street without proper drainage that is incapable of handling the traffic from the mobile home park. Three years before Mr. Myers submitted his application, he had been advised by the City that a request for an access onto Washington Street would not be allowed without an agreement to mitigate the problems arising from the use of the unpaved dirt road.
Mr. Myers contends the denial of his permit was arbitrary and capricious. Mr. Myers fails to demonstrate that the City's denial of his permit was arbitrary and capricious. The hearing examiner properly accepted the City's judgment that Washington Street would have to be improved in order to handle the amount of traffic generated by the mobile home park. Mr. Myers fails to present any evidence raising a question of fact as to whether this decision by the City is willful and unreasonable and taken without consideration for or regard to the facts and circumstances. Likewise, he fails to show how the City's failure to approve the permit with conditions was arbitrary and capricious.
Conclusion.
The hearing examiner correctly affirmed the City's denial of Mr. Myers's request for an access permit onto Washington Street. Compliance with Chapter 58.17 RCW. Under RCW 58.17.020 and .030, any person who subdivides five or more lots within a city in Washington must file an approved final plat of the subdivision or obtain the approval of a binding site plan before selling or leasing property to the public. RCW 58.17.040(5) exempts mobile home parks from the requirements of chapter 58.17 RCW `when the city, town, or county has approved a binding site plan for the use of the land in accordance with local regulations.' RCW 58.17.035 provides that a binding site plan may be administratively approved, and, following administrative approval, individual lots may also be administratively approved.
Mr. Myers contends the revised plan constituted a binding site plan and that the only step remaining to complete the binding site plan process is to file the plan with the county auditor. See RCW 58.17.035. However, the hearing examiner determined that the revised plan cannot be filed with the county auditor as a binding site plan because this plan has never been approved by the Cheney City Council as required under CMC 22.04.050(5). Mr. Myers suggests that the revised plan is the material equivalent of a binding site plan because it was administratively approved under RCW 58.17.035. But the revised plan fails to meet the requirements of the Cheney Municipal Code or RCW 58.17.160.
First, as mentioned above, the revised plan was not approved by the Cheney City Council. Second, the plan does not comply with the approval process set forth in CMC 20.05.030. Finally, the revised plan does not satisfy RCW 58.17.160 because it (1) does not have the required statement of approval from the city engineer; (2) is not accompanied by a complete survey of the action in which the plat is located; and (3) does not contain the required acknowledgments. According to Mr. Myers, the revised plan constitutes a binding plan because it was approved pursuant to CMC 20.05.030 by Mr. Jurkovac, an employee of the City Planning Department. Mr. Myers also makes the interesting argument that the City Planning Coordinator was responsible for the manner in which the project was approved, that the planning coordinator had the authority to approve the revised plan, and that this official chose to exercise that authority. Mr. Myers contends the hearing examiner erred by concluding that Mr. Jurkovac's approval of the revised plan was ultra vires. To some extent, Mr. Myers misunderstands the hearing examiner's decision.
The hearing examiner did not conclude that the approval of the revised plan was ultra vires. The hearing examiner held that the approval of the revised plan did not result in the approval of the SR 904 connection because at that time no City official had the authority to approve access connections onto state highways. What the hearing examiner did conclude was that even though the development of the 15 additional lots was grandfathered and the provisions of the mobile home park ordinance did not apply, Mr. Myers was nevertheless required to comply with other permitting requirements and chapter 58.17 RCW.
Stated simply, Mr. Myers suggests that any type of administrative approval of any type of plan document is sufficient to meet the requirements of chapter 58.17 RCW and CMC 20.05.030. These same arguments were rejected in Strauss v. City of Sedro-Woolley, 88 Wn. App. 376, 944 P.2d 1088 (1997). Conclusion. The plan submitted by Mr. Myers did not meet the platting requirements for subdividing and leasing its lots. The City was acting within its authority by refusing to authorize development within the mobile home park until Mr. Myers had filed a binding site plan.
The City's Bad Faith. As part of his decision, the hearing examiner stated as follows:
Appellant has raised the issue of animus and basically bad faith on the part of the City. Counsel argues that this is shown by the treatment afforded Mr. Myers and speaks for itself. The City denies specifically targeting Mr. Myers or treating him any differently than others regarding zoning issues. No facts have been presented that would permit this Hearing Examiner to find that the decisions of the City have been reached because of what might be deemed `bad blood,' between Mr. Myers and the City.
CP at 51.
Mr. Myers appealed the hearing examiner's decision by filing a land use petition and complaint for damages. As part of this action, Mr. Myers alleges violations of his procedural and substantive due process rights under the Washington Constitution, and the violation of his right to equal protection under the Washington Constitution. He seeks damages under RCW 64.40.010 and alleges negligence and a violation of RCW 82.02.020.
Under LUPA, a reviewing court may grant relief under any or all of the six circumstances set forth in RCW 36.70C.130. Under subsection (f), the reviewing court may determine that the land use decision violates the constitutional rights of the party seeking relief. However, LUPA does not apply to `[c]laims provided by any law for monetary damages.' RCW 36.70C.030(1)(c). Here, the court dismissed the LUPA petition and held that `all claims of civil rights violations are bifurcated and are not effected by the dismissal of this LUPA portion of the Complaint.' CP at 224.
Where a plaintiff alleges that a municipality's land use authorities violated plaintiff's rights to substantive due process, the plaintiff bears the burden of demonstrating that the governmental action was arbitrary, irrational, or tainted by improper motive. See Robinson v. City of Seattle, 119 Wn.2d 34, 62, 830 P.2d 318 (1992). Mr. Myers alleges that a long series of actions reflects the improper motive on the part of City officials. He suggests that this matter should be remanded because there are material issues of fact as to whether the City's conduct is tainted by improper motive. He believes that he should have an opportunity to make a record on the constitutional claims at the administrative level.
Conclusion.
Mr. Myers's argument is without merit. First, the hearing examiner made no conclusion or finding as to improper motive that must be addressed by this court. Second, we need not address the question of improper motive in order to consider the appeal before this court because all claims of civil rights violations are bifurcated.
Motions and Attorney Fees.
The City filed a motion to admit additional evidence. In response, Mr. Myers filed a motion for sanctions. We deny both motions. Additionally, the City requests attorney fees. The City is entitled to an award of attorney fees as the prevailing party under RCW 4.84.370(2).
Affirmed.
The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR: KATO, A.C.J., SCHULTHEIS, J.
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