Sandra & Stephen Klineburger, Apps V. King County, Resps

Citations and pin cites are based on the Westlaw online version of the cited material.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SANDRA KLINEBURGER and
STEPHEN KLINEBURGER, husband
and wife,
Appellants,
v.
KING COUNTY DEPARTMENT OF
PERMITTING AND ENVIRONMENTAL
REVIEW,
Respondents.
No. 80928-8-I
DIVISION ONE
UNPUBLISHED OPINION
CHUN, J. — After a trial court affirmed a hearing examiner’s ruling
regarding use of their property (Property), Stephen and Sandra Klineburger
appealed to this court. In an unpublished opinion, Klineburger v. King County
Department of Permitting and Environmental Review,1 a panel affirmed in part
and reversed in part, directing the trial court on remand to determine, under RCW
36.70C.130(1)(b), (c), and (d), whether the hearing examiner erroneously
interpreted the King County Code (KCC), whether substantial evidence
supported the ruling, and whether the ruling was a clearly erroneous application
of the law.
The Klineburgers moved to consolidate the remanded case with their Land
Use Petition Act (LUPA) appeal from the linked appeal, Klineburger v. King
1 No. 79028-5-I (Wash. Ct. App. Nov. 12, 2019) (unpublished)
https://www.courts.wa.gov/opinions/pdf/790285.pdf,

No. 80928-8-I/2
2
County Department of Permitting and Environmental Review, No. 81486-9-I. The
trial court denied their motion to consolidate. In its order denying consolidation,
the trial court ruled that the hearing examiner had not erroneously interpreted the
KCC, that substantial evidence supported the findings, conclusions, and
decision, and that the ruling was not a clearly erroneous application of the law.
The order also dismissed the remanded matter with prejudice.
The Klineburgers appeal, saying that the trial court improperly dismissed
the remanded case without considering whether the hearing examiner’s ruling
complied with RCW 36.70C.130(1)(b), (c), and (d). We disagree and affirm.
I. BACKGROUND
The Property sits about 800 feet south of the middle fork of the
Snoqualmie River within a FEMA-designated floodway and a King County-
designated conservancy shoreline and channel migration zone. Klineburger,
No. 79028-5, slip op. at 1–2. King County designated a portion of the Property
as a buffer aquatic area. Id.
In 2012, the Klineburgers placed a 400-square-foot cargo container in the
portion designated as a conservancy shoreline area, channel migration zone,
and aquatic buffer. Id. at 2–3. “Between 2013 and 2017, the Klineburgers
spread mulch, stacked ‘cords’ and ‘rounds’ of firewood, and removed
blackberries and other vegetation on the southeast portion of the [Property]. In
2017, the Klineburgers constructed a gravel driveway in the designated floodway
area, conservancy shoreline area, and aquatic buffer.” Id. at 3.

No. 80928-8-I/3
3
In 2017, the King County Department of Permitting and Environmental
Review (DPER) issued a Notice and Order for the Property, alleging two
violations:
(1) clearing and/or grading (fill) within four types of critical areas
(floodway, aquatic, channel migration, shoreline and/or their buffers)
in violation of specified provisions of the Grading, Critical Areas, and
Shoreline codes, Chapters 16.82, 21A.24, and 21A.25 of the [KCC],
respectively; and (2) placement a [sic] cargo container within these
four types of critical areas and/or their buffers without the required
permits.
The Klineburgers appealed to a hearing examiner, who affirmed in part
and reversed in part the notice and order.
The Klineburgers petitioned the trial court under LUPA, seeking review of
the hearing examiner’s decision under RCW 36.70C.130(1)(b), (c), and (d). The
trial court dismissed the LUPA appeal, determining that (1) it lacked jurisdiction
under LUPA to review the federal special flood hazard management designations
and mappings to which the Klineburgers assigned error, (2) the Klineburgers had
failed to exhaust their administrative remedies, and (3) res judicata and collateral
estoppel barred consideration of the issues.
The Klineburgers appealed to this court. A panel affirmed in part and
reversed in part. Klineburger, No. 79028-5, slip op. at 9. The panel affirmed the
dismissal of the Klineburgers’ challenge to the FEMA and King County
designations for lack of standing because of failure to exhaust administrative
remedies, but reversed dismissal of the LUPA appeal challenging the decision of
the hearing examiner under RCW 36.70C.130(1)(b), (c), and (d). Id. at 7. It
concluded that the trial court did not address whether the hearing examiner

No. 80928-8-I/4
4
erroneously interpreted the KCC, whether substantial evidence supports the
decision, and whether the decision is a clearly erroneous application of the law to
the facts under RCW 36.70C.130(1)(b), (c), and (d). Id.
The Klineburgers moved to consolidate the remanded matter with their
civil penalties matter in the linked case. King County opposed their motion on
the grounds that substantial evidence supported the hearing examiner’s decision
and that the hearing examiner correctly interpreted and applied the KCC,
effectively arguing that the matter should not be consolidated because it should
be dismissed. It also argued that a decision denying review by the Washington
Supreme Court in a separate matter mooted the remanded proceedings. It said
that since the ruling that the Klineburgers’ primary use for the Property—a mobile
home—was illegal had finalized, through the denial of review, their accessory
use for the Property was necessarily illegal as well. The Klineburgers did not file
a reply brief.
The trial court denied the motion to consolidate and dismissed the
remanded case on the merits. It concluded that Hearing Examiner Moss
correctly interpreted the applicable King County land use code provisions at
issue, that substantial evidence supported her findings, conclusions, and
decision, and that her decision was not a clearly erroneous application of the law
to the facts. It also concluded that because the primary use for the property was
illegal, this matter regarding accessory use of the Property was moot.

No. 80928-8-I/5
5
II. ANALYSIS
The Klineburgers say that the trial court erred by dismissing the remanded
matter without adhering to this court’s directive to address whether (1) the
hearing examiner erroneously interpreted the KCC, (2) substantial evidence
supports the decision, and (3) the decision is a clearly erroneous application of
the law to the facts under RCW 36.70C.130(1)(b), (c), and (d). We disagree.
RCW 36.70C.130(1) provides, in applicable part, that a superior court may
grant relief in a LUPA appeal if:
(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.
Subsection (b) presents a question of law that we review de novo;
subsection (c) concerns a factual determination that we review for substantial
evidence; and subsection (d) requires us to apply the clearly erroneous standard
of review. Abbey Rd. Grp., LLC v. City of Bonney Lake, 167 Wn.2d 242, 250,
218 P.3d 180 (2009) (abrogated on other grounds by Yim v. City of Seattle, 194
Wn.2d 682, 451 P.3d 694 (2019)).
To determine whether substantial evidence supports a decision, the court
must decide, while considering the evidence in the light most favorable to the
party who prevailed in the forum exercising fact-finding authority, whether a fair-
minded person would be persuaded by the evidence of the truth of the findings.
Id. To determine whether a decision is a clearly erroneous application of the law

No. 80928-8-I/6
6
to the facts, the court must decide whether on the record, the court “is left with
the definite and firm conviction that a mistake has been committed.” Phoenix
Dev., Inc. v. City of Woodinville, 171 Wn.2d 820, 829, 256 P.3d 1150 (2011).
The Klineburgers do not say which of the hearing examiner’s findings or
conclusions are erroneous or how the trial court’s order falls short; instead, they
assert that the trial court did not review the hearing examiner’s decision at all.
But the trial court’s order denying consolidation clearly addresses the adequacy
of the hearing examiner’s ruling under RCW 36.70C.130(1)(b), (c), and (d); it
concluded that
[a]fter review of the findings and conclusions . . . of [the hearing
examiner], this Court concludes that the Examiner correctly
interpreted the applicable King County land use code provisions at
issue, that the Examiner’s findings, conclusions, and decision were
supported by substantial evidence, and that her decision was not a
clearly erroneous application of the law to the facts.
It also decided that:
Examiner Moss properly interpreted and applied the provision of the
[KCC] provisions cited in the Notice and Order issued by DPER.
Additionally, Examiner Moss properly found that DPER provided
sufficient competent evidence to satisfy its burden to prove by a
preponderance that the appellants violated the [KCC] by:
1. Illegal clearing and grading without permits,
inspections and approvals within the FEMA
(Federal Emergency Management Agency)
designated floodway (i.e., a code designated
critical area); Aquatic, Channel Migration Zone
(CMZ), Shoreline critical areas/buffers; and,
2. Illegal placement of a 400 square foot cargo
container without permits, inspections, and
approvals in violation of the [KCC], International
Building Code, and within the FEMA designated
floodway, County designated Channel Migration
Zone (CMZ), Shoreline, and Aquatic critical
areas/buffers.

No. 80928-8-I/7
7
The Klineburgers do not cite the record in support of their argument or
provide more than scant citation to legal authority. An appellant must provide
“argument in support of the issues presented for review, together with citations to
legal authority and references to relevant parts of the record.” RAP 10.3(a)(6).
We need not consider arguments unsupported by references to the record,
meaningful analysis, or citation to pertinent authority. Cowiche Canyon
Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
We reject the Klineburgers’ claim that the trial court did not consider the
issues raised in this court’s directive.
Opportunity to Litigate Merits
For the first time on appeal and in their reply brief, the Klineburgers say
that the trial court denied them a full and fair opportunity to litigate the merits of
the RCW 36.70C.130(1) issues. Under RAP 2.5(a), the Klineburgers may not
raise an issue for the first time on appeal, and do not explain how any exception
to this rule applies. Nor can they raise this issue for the first time in their reply
brief. Cowiche Canyon Conservancy, 118 Wn.2d at 809 (holding an issue raised
for the first time in a reply brief is too late to warrant consideration).
But even if we addressed this claim, we would reject it. The Klineburgers
presented argument on RCW 36.70C.130(1) in their briefing to the original trial
court. They had a chance to raise the issues at oral argument before that trial
court. And on remand, they chose not to respond to King County’s arguments on
RCW 36.70C.130(1) presented in the opposition to the motion to consolidate or
the request for dismissal. The trial court had access to this prior argument and to

No. 80928-8-I/8
8
the verbatim report of proceedings of the administrative hearing when deciding
the RCW 36.70C.130(1) issue. And while the Klineburgers now say the trial
court denied them a full and fair opportunity to litigate the merits of this issue,
they did not present it with that argument when given the opportunity below. Nor
do they say which arguments they would raise now if given another opportunity.2
Attorney Fees and Costs
The Klineburgers request an award of attorney fees and costs on appeal
under RCW 4.84.370. The statute requires a court to award attorney fees and
costs to the prevailing party in a land use decision; but under RCW 4.84.370(2),
the county “whose decision is on appeal is considered a prevailing party if its
decision is upheld at superior court and on appeal.” Thus, King County, not the
Klineburgers, is the prevailing side here. We deny the Klineburgers’ request.
We affirm.3
WE CONCUR:
2 See Hyde v. Fisher, 146 Idaho 782, 786–87, 203 P.3d 712 (2009) (holding a
trial court did not deprive an appellant of due process where it relied, on remand, on
briefs submitted to the trial court before the previous appeal).
3 Because we resolve this matter on the grounds discussed above, we do not
reach King County’s arguments that we should affirm the trial court on the grounds that it
properly concluded the Klineburgers’ appeal is moot and that they lacked standing.