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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

RENTON NEIGHBORS FOR                        )       NO. 66874-9-I
HEALTHY GROWTH,                             )
                                            )       DIVISION ONE
                      Appellant,            )
                                            )
                      v.                    )
                                            )
PACLAND; JEFF CHAMBERS, P.E.;               )
BONNELL FAMILY, LLC; PETER                  )
BONNELL; CITY OF RENTON,                    )       UNPUBLISHED OPINION
                                            )
                      Respondents,          )       FILED: May 14, 2012
                                            )
WAL-MART STORES, INC.,                      )
                                            )
                      Intervenor.           )
                                            )

       Lau, J.  --  Wal-Mart Stores, Inc. proposes to expand its Renton store by 16,000 

square feet.  The existing store was built before the current zoning regulations were 

enacted and is nonconforming in some respects.  Renton Neighbors for Healthy Growth 

(RNHG) opposes the expansion, claiming that (1) it illegally expands a nonconforming 

use and (2) it fails to comply with the city of Renton's design regulations.  The hearing 

examiner approved Wal-Mart's proposal with several conditions, and the city council 

affirmed.  RNHG appeals the hearing examiner's decision to approve the expansion  

66874-9-I/2

under the Land Use Petition Act (LUPA), chapter 36.70C RCW.  Because (1) the 

hearing examiner's interpretation of the relevant code provisions is reasonable, 

(2) the hearing examiner's unchallenged findings are supported by substantial 

evidence, and (3) RNHG demonstrates no clear error in the hearing examiner's 

application of the law to the facts, we affirm.

                                            FACTS

       Wal-Mart Stores, Inc. retained PACLAND to provide civil engineering services 

for a proposed store expansion in the city of Renton (City).  In 2010, PACLAND filed an 

application with the City for site plan review of a proposal to expand Wal-Mart's existing 

134,352 square-foot store by approximately 16,000 square feet.  The project would also 

reduce Wal-Mart's garden center by 4,000 square feet and add 127 parking stalls.  The 
Wal-Mart property was zoned "commercial arterial" and "medium industrial."1  On 

February 22, 2010, the City accepted PACLAND's application for review.  

       The City's Environmental Review Committee reviewed the project application 

and issued a "Determination of Non-Significance  --  Mitigated," including six mitigation 

measures, for the Wal-Mart expansion.  No appeals of this determination were filed.  

The City's Department of Community and Economic Development issued a preliminary 

report to the hearing examiner.  The report indicated that Wal-Mart's proposal was "not 

compliant" with several city code provisions but recommended the City approve the

expansion subject to several conditions.  The hearing examiner held a public hearing 

       1 A majority of the site was zoned "commercial arterial," with a small area on the 
western part of the site designated "medium industrial."  "For the purposes of the Site 
Plan Review the [Commercial Arterial] standards were used to review the proposal."  

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for Wal-Mart's site plan application.  The City received no public opposition to the 
project.2  The hearing examiner made extensive findings based on the preliminary 

report and the hearing testimony.  He adopted most of the analysis in the preliminary 

report and approved Wal-Mart's expansion proposal subject to eleven conditions.  

       RNHG failed to submit any comment letters and did not attend the hearing 

because it was not aware of the proposal at that time.  RNHG filed a request for 

reconsideration, arguing that the project violated several Renton Municipal Code 

(RMC) requirements and illegally expanded a nonconforming use.  The hearing 

examiner denied RNHG's request, concluding there was "no reason to alter the original 

decision nor the conditions attached to that decision."  RNHG also appealed the 

hearing examiner's decision to the Renton city council.  After a hearing, the city 

council's planning and development committee voted to uphold the hearing examiner's 

decision and recommended that the full city council do the same.  The city council 

adopted the Committee's recommendation and affirmed the hearing examiner's 

decision.  

       RNHG filed a land use petition with the superior court under LUPA.  Wal-Mart 
intervened in the action and moved to dismiss for lack of standing.3  The trial court 

denied the motion, ruling that RNHG met the RCW 36.70C.060(2) requirements for 

       2 To the contrary, the City received several letters and a petition with numerous 
signatures indicating community support for the project.  

       3 The respondents initially named in the petition were PACLAND and its contact 
Jeff Chambers, the property owner Peter Bonnell and Bonnell Family, LLC, and the 
City.  In this opinion we refer to Wal-Mart and the City collectively as "respondents."  

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standing.  But the trial court denied RNHG's land use petition on the merits, ruling 

(1) the City acted within its authority in approving Wal-Mart's site plan, (2) substantial 

evidence supported the decision, (3) the City properly interpreted and applied its code 

requirements in approving the site plan, and (4) the land use decision was not an 

erroneous interpretation of the law or a clearly erroneous application of the law to the 

facts.  The court concluded, "[RNHG] has failed to satisfy the standards of RCW 

36.70C.130(1)(a)-(d) and is therefore not entitled to relief."  RNHG appeals.  

                                          ANALYSIS

       Standard of Review

       LUPA is the exclusive means of obtaining judicial review of land use decisions, 

with certain exceptions not applicable here.  Friends of Cedar Park Neighborhood v. 

City of Seattle, 156 Wn. App. 633, 640, 234 P.3d 214 (2010).  We review the decision 

of the "local jurisdiction's body or officer with the highest level of authority to make the 

determination, including those with authority to hear appeals." RCW 36.70C.020(2).  

Thus, when reviewing a LUPA decision, we stand in the shoes of the superior court, 

reviewing the ruling below on the administrative record.  HJS Dev., Inc. v. Pierce 

County ex rel. Dep't of Planning & Land Servs., 148 Wn.2d 451, 468, 61 P.3d 1141 

(2003).  Here, because the City Council adopted the hearing examiner's findings of fact 

and conclusions of law, we review the hearing examiner's decision.  See RMC 4-8-

100(K)(2) ("Unless otherwise specified, the City Council shall be presumed to have 

adopted the Examiner's findings and conclusions."). 

       Under LUPA, a court may grant relief only if the party seeking relief has carried 

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the burden of establishing that one of the standards set forth in RCW 36.70C.130(1) is 

met.  RNHG cites four standards in its appellate brief:

              (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 . . . .

Appellant's Br. at 7 (quoting RCW 36.70C.130(1)).  Subsections (a) and (b) are 

questions of law that we review de novo.  Phoenix Dev., Inc. v. City of Woodinville, 171 

Wn.2d 820, 828, 256 P.3d 1150 (2011).  "When reviewing a challenge to the 

sufficiency of the evidence under subsection (c), we view facts and inferences in a light 

most favorable to the party that prevailed in the highest forum exercising fact-finding 

authority," in this case the City and Wal-Mart.  Phoenix Dev., 171 Wn.2d at 828-29.  

This process "'necessarily entails acceptance of the factfinder's views regarding the 

credibility of witnesses and the weight to be given reasonable but competing 

inferences.'"  City of Univ. Place v. McGuire, 144 Wn.2d 640, 652, 30 P.3d 453 (2001) 

(quoting State ex rel. Lige & Wm. B. Dickson Co. v. County of Pierce, 65 Wn. App. 614, 

618, 829 P.2d 217 (1992)).  Under the substantial evidence standard, there must be 

sufficient evidence to "persuade a reasonable person that the declared premise is 

true."  Phoenix Dev., 171 Wn.2d at 829.  We do not weigh the evidence or substitute 

our judgment for the reviewing official's judgment.  Phoenix Dev., 171 Wn.2d at 832.  

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Under subsection (d), the application of the law to the facts is clearly erroneous -- and 

thus reversible -- only if we are left with a definite and firm conviction that a mistake has 

been committed.  Phoenix Dev., 171 Wn.2d at 829; Milestone Homes, Inc. v. City of 

Bonney Lake, 145 Wn. App. 118, 126, 186 P.3d 357 (2008).

       Standing

       The respondents contend RNHG lacks standing because it failed to attend the 

public hearing and thus failed to exhaust its administrative remedies.  RNHG argues 

that attendance at the hearing was not required and it otherwise exhausted all 

administrative remedies required under the RMC.

       Outside the Declaratory Judgments Act, standing is an issue that must be raised 
in the trial court.4  Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 203-

       4 Some of our cases erroneously refer to standing as "jurisdictional" and allow it 
to be raised for the first time on appeal.  But article IV, section 6 of the Washington 
Constitution does not exclude any causes from the broad jurisdiction of superior courts, 
meaning Washington courts have few constraints on their jurisdiction.  Krieschel v. Bd. 
of Snohomish County Comm'rs, 12 Wash. 428, 439, 41 P. 186 (1895); Philip A. 
Talmadge, Understanding the Limits of Power: Judicial Restraint in General Jurisdiction
Court Systems, 22 Seattle U. L. Rev. 695, 708-09 (1999).  Thus, if a defendant waives 
the defense that the plaintiff lacks standing, Washington courts can reach the merits.  
Talmadge at 718-19; Tyler Pipe Indus., Inc. v. Dep't of Revenue, 105 Wn.2d 318, 327, 
715 P.2d 123 (1986) ("If the issue of standing is not submitted to the trial court, it may 
not be considered on appeal.") vacated on other grounds, 483 U.S. 232, 107 S. Ct. 
2810, 97 L. Ed. 2d 199 (1987).  A recent decision from our Supreme Court, Knight v. 
City of Yelm, 173 Wn.2d 325, 336, 267 P.3d 973 (2011), states that "[s]tanding is 
jurisdictional." But Knight refers back to Chelan County v. Nykreim, 146 Wn.2d 904, 
926, 52 P.3d 1 (2002), and Nykriem (putting "jurisdiction" in quotes) refers back to
Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 181, 4 P.3d 123 
(2000), which does not use the word "jurisdiction" at all, but simply mentions the well-
established rule that to invoke the superior court's appellate jurisdiction (i.e., jurisdiction 
the court already possesses), one must strictly comply with any procedural 
requirements the legislature has established.  This does not mean that the litigant's 
compliance vests the court with jurisdiction or that the litigant's lack of compliance 
divests the court of jurisdiction.  Our Supreme Court has warned against the type of 
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04 n.4, 11 P.3d 762, 27 P.3d 608 (2000); see also Baker v. Teachers Ins. & Annuities 

Ass'n Coll. Ret. Equity Funds, 91 Wn.2d 482, 484, 588 P.2d 1164 (1979) (where issue 

of standing was not submitted to trial court, it could not be considered on appeal).  

Here, the respondents raised the issue below when they moved to dismiss for lack of 

standing, but the trial court concluded RNHG had standing and denied the motion.  The 

respondents neither cross appealed that ruling nor assigned error to it on appeal.  

"Failure to cross-appeal an issue generally precludes its review on appeal."  

Amalgamated Transit, 142 Wn.2d at 202.  Review of the record also shows that the 

respondents raised the standing issue before the hearing examiner and the City 

Council.  The respondents failed to cross appeal either of those decisions even though 

the hearing examiner and City Council reached the merits of RNHG's arguments and 

implicitly concluded RNHG had standing.  See Caswell v. Pierce County, 99 Wn. App. 

194, 197, 992 P.2d 534 (2000) (in LUPA case, when respondents "have not cross-

appealed the hearing examiner's conclusion, and the superior court's concurrence"

regarding certain issues, the appellate court will not address those issues).  Here the

respondents waived their standing argument by failing to cross appeal or assign error 

to the trial court's ruling on standing. 

       "Vesting"
       The parties dispute which version of the RMC applies in our review.5 RNHG 

casual and imprecise use of the term "jurisdiction" that occurs in Knight.  See Marley v. 
Dep't of Labor & Indus., 125 Wn.2d 533, 541, 886 P.2d 189 (1994). 

       5 The RMC has been amended several times since the City accepted Wal-Mart's 
site plan review application in February 2010.  Relevant to this opinion, several RMC 
provisions were amended in March 2010, after the City accepted review but before the 
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argues that Wal-Mart "vested to" the former version of the RMC that was in effect at the 

time the City accepted Wal-Mart's site plan review application for review in February 

2010.  Appellant's Reply Br. at 39.  It argues that all review was based on application of 
the former RMC6 and we should review the hearing examiner's decision under that 

version.  Wal-Mart argues that a "site plan application does not trigger vesting," and 

thus, the former RMC provisions do not apply to our review.  Resp't's Br. at 18.  

       Washington's vested rights doctrine "entitles developers to have a land 

development proposal processed under the regulations in effect at the time a complete 

building permit application is filed . . . ."  Abbey Rd. Group, LLC v. City of Bonney Lake, 

167 Wn.2d 242, 250, 218 P.3d 180 (2009).  RCW 19.27.095(1) provides:                 

       A valid and fully complete building permit application for a structure, that is 
       permitted under the zoning or other land use control ordinances in effect on the 
       date of the application shall be considered under the building permit ordinance 
       in effect at the time of application, and the zoning or other land use control 
       ordinances in effect on the date of application.

       We conclude the vested rights doctrine does not apply here.  RNHG cites no 

authority applying the vested rights doctrine when determining which version of a local 
ordinance applies to a hearing examiner's decision on a site plan review application.7  

hearing examiner made his decision.

       6 For clarity, we refer to the RMC provisions in effect in February 2010 as the 
"former RMC" and to the amended RMC provisions in effect at the time the hearing 
examiner made his decision simply as the "RMC."  

       7 Even if we were asked to decide whether Wal-Mart's development rights 
"vested," they did not in this case.  In Abbey Road, our Supreme Court made clear that 
absent a local vesting ordinance specifying an earlier vesting date, development rights 
vest only upon filing a complete building permit application and do not vest merely 
upon filing a site plan review permit application.  Abbey Rd., 167 Wn.2d at 252-61.  
Here Wal-Mart filed a site plan review application, not a complete building permit 
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See Beal for Martinez v. City of Seattle, 134 Wn.2d 769, 777 n.2, 954 P.2d 237 (1998) 

("The City cites no authority for this proposition and, thus, it is not properly before us.")

(citing RAP 10.3(a)(5); Schmidt v. Cornerstone Invs., Inc., 115 Wn.2d 148, 166, 795 

P.2d 1143 (1990)).  The issue here is which version of the RMC applies to our review 

of the hearing examiner's decision, not whether Wal-Mart had vested development 

rights by virtue of its site plan review application.    

       We stand in the shoes of the superior court, reviewing the hearing examiner's 

ruling below on the administrative record.  HJS Dev., 148 Wn.2d at 468.  The City 

amended portions of its urban design regulations in March 2010, before the hearing 

examiner heard this case.  The amended version thus applied to the hearing 

examiner's original decision on May 13, 2010, and his reconsideration on June 10.  We 

apply the amended RMC in effect when the examiner made his decision.  See Phoenix 

Dev., 171 Wn.2d at 834-36 (in reviewing City's denial of rezone application, court 

applied version of Woodinville Municipal Code in effect when City made its decision); 

Woods v. Kittitas County, 162 Wn.2d 597, 617-25, 174 P.3d 25 (2007) (in reviewing 

county board of commissioners' approval of rezone application, court applied version of 

Kittitas County Code in effect when Board made its decision); City of Medina v. T-

Mobile USA, Inc., 123 Wn. App. 19, 29-33, 95 P.3d 377 (2004) (in reviewing hearing 

examiner's approval of a variance application, court applied version of Medina 

Municipal Code in effect when examiner made his decision).

application. The RMC mirrors state law on vesting and establishes no earlier vesting 
date.  See RMC 4-8-060(B).  Thus Wal-Mart's application does not confer vested 
development rights.

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       RNHG argues that because the table incorporated into the hearing examiner's 

decision "parallels the version of RMC 4-3-100 that [was in effect at the time Wal-Mart 

applied for its site plan approval]," the hearing examiner reviewed Wal-Mart's proposal 

under that former version rather than the amended version that he should have used.  

Appellant's Reply Br. at 39.  Thus, according to RNHG, "all review in this case was 

based upon the application of the previous version of the law" and we should use the 

former version.  Appellant's Reply Br. at 38.  But RNHG failed to raise this argument in 

its request for reconsideration, its notice of appeal or briefing to the city council, or 

during the appeal hearing before the city council in August 2010.  RNHG cited the 

amended version of the RMC -- particularly portions of RMC 4-3-100(A), which it now 

argues are inapplicable -- in its opening and reply briefs in its appeal to the city council.  

Those briefs were filed well after the hearing examiner ruled on RNHG's request for

reconsideration.  RNHG thus had sufficient time to raise the issue before the city 

council and failed to do so.  

       RNHG also failed to raise the issue in its LUPA petition or its trial brief, despite 

citing the former version of the RMC.  RNHG raised its argument for the first time in its 

reply brief in the superior court.  But we review the hearing examiner's action, not the 

proceedings before the superior court, on the basis of the administrative record de 

novo.  HJS Dev., 148 Wn.2d at 468.  In LUPA cases, we may refuse to consider 

arguments raised for the first time on review.  RAP 2.5(a); First Pioneer Trading Co., 

Inc. v. Pierce County, 146 Wn. App. 606, 617 n.5, 191 P.3d 928 (2008).  Here, RNHG 

did not challenge the version of the RMC applied before the hearing examiner or the 

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city council and provides no explanation why the argument could not have been made 

earlier.  Thus, RNHG did not put either the hearing examiner or the council on notice of 

its challenge to the version of the RMC applied.  See Citizens for Mount Vernon v. City 

of Mount Vernon, 133 Wn.2d 861, 869, 947 P.2d 1208 (1997) ("Our cases require 

issues to be first raised at the administrative level . . . ."); Exendine v. City of 

Sammamish, 127 Wn. App. 574, 113 P.3d 494 (2005) (trial court properly refused to 

allow LUPA petitioners to raise a new argument not raised or argued before the hearing 

examiner).  Because RNHG failed to raise the issue of whether the hearing examiner 

applied an incorrect version of the RMC before either the hearing examiner or the city 
council, we decline to consider that challenge now.8  

       "Verities on Appeal"

       The parties also dispute whether the hearing examiner's findings are verities on 

appeal in this case.  RNHG argues that under LUPA, notice pleading is sufficient to 

challenge all the hearing examiner's findings and, furthermore, the hearing examiner 

made only "circumscribed findings based on other legal criteria, not those listed in RMC 

4-2-120C(15)." Appellant's Reply Br. at 35.  Wal-Mart contends that failure to assign 

error to a hearing examiner's findings of fact makes them verities on appeal.

       8 Even if we considered RNHG's argument, RNHG cites to nothing else in the 
hearing examiner's decision or elsewhere in the record that indicates which version of 
the code he applied, and on reconsideration, the hearing examiner cited the amended 
version, showing he reviewed his decision under the amended version.  (Clerk's 
Papers (CP) at 77-78 (citing amended RMC 4-3-100(A)(2)).  The hearing examiner 
concluded on reconsideration that the "[amended RMC] provisions cited above allow 
sufficient latitude to permit the proposed expansion as conditioned in the decision."  
Given our limited review, we are unable to conclude the hearing examiner applied an 
incorrect version of the law.
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       In City of Medina, we reviewed a hearing examiner's decision granting T-

Mobile's request for a special use permit and three variances.  City of Medina, 123 Wn. 

App. at 22.  We concluded that "[Medina] does not appear to challenge any of the 

hearing examiner's findings in this case, so they are verities on appeal."  City of 

Medina, 123 Wn. App. at 29.  Similarly, in United Development Corp. v. City of Mill 

Creek, 106 Wn. App. 681, 684, 26 P.3d 943 (2001), we reviewed the city council's 

imposition of mitigation fees and other conditions on a subdivision.  We concluded that 

"because [United Development Corporation] assigns no error to the findings of the City 

Council, they are verities on appeal."  United Dev., 106 Wn. App. at 688.  See also

Stuewe v. Dep't of Revenue, 98 Wn. App. 947, 950, 991 P.2d 634 (2000) 

(administrative finding of fact not assigned error is verity on appeal); Hilltop Terrace 

Homeowner's Ass'n v. Island County, 126 Wn.2d 22, 30, 891 P.2d 29 (1995) (same).  

       This case is similar to City of Medina and United Development Corp. The 

hearing examiner made numerous findings of fact based on the administrative record 

before him.  RNHG assigns error "to the King County Superior Court's Final Order and 

Judgment issued on February 22, 2011." Appellant's Br. at 2.  RNHG assigns no error 

to the hearing examiner's findings and cites no authority for its argument that LUPA 

petitioners challenge all of the hearing examiner's findings when they petition via 

simple notice pleading.  See First Am. Title Ins. Co. v. Liberty Capital Starpoint Equity 

for Fund, LLC, 161 Wn. App. 474, 486, 254 P.3d 835 (2011) (declining to consider an 

inadequately briefed argument). The hearing examiner's findings are verities on 

appeal.  Substantial evidence supports the findings as discussed below.  

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       Merits of Hearing Examiner's Decision

       RNHG argues that the hearing examiner's decision should be overturned 

because (1) Wal-Mart's proposal violates the City's design regulations applicable to 

district D under RMC 4-3-100 and (2) the proposal is an illegal expansion of a 

nonconforming use under RMC 4-10-050.  We address the design regulations issue 

first because it affects both arguments.

       Design Regulations9

       RMC 4-3-100's design regulations apply to development within certain 

designated design districts, including design district D where Wal-Mart is located.  

RMC 4-3-100(B)(1)(b), (3).  The design regulations list elements that are required for

development in the applicable design districts.  Each element includes an intent 

statement, standards, and guidelines.  RMC 4-3-100(A)(2).  The standards "specify a 

prescriptive manner in which the requirement can be met," while the guidelines and 

intent statement "provide direction for those who seek to meet the required element in a 

manner that is different from the standards." RMC 4-3-100(A)(2).  The design 

regulations mandate that the hearing examiner 

       shall have the authority to approve, approve with conditions, or deny proposals 
       based upon the provisions of the design regulations.  In rendering a decision, 
       the [hearing examiner] will consider proposals on the basis of individual merit, 
       will consider the overall intent of the minimum standards and guidelines, and 
       encourage creative design alternatives in order to achieve the purposes of the 
       design regulations.

       9 As discussed above, we apply the amended design regulations in effect when 
the hearing examiner made his decision.

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RMC 4-3-100(D)(2). If the examiner determines "that the proposed manner of meeting 

the design requirement through the guidelines and intent is sufficient, the applicant 

shall not be required to demonstrate sufficiency to the standard associated with the 
guideline that has been approved."10 RMC 4-3-100(A)(2)(b).  "Where there are 

conflicts between the design regulations of this Section and other sections of the 

Renton Municipal Code, the regulations of this Section shall prevail." RMC 4-3-

100(B)(2).     

       RNHG first argues that the standards set forth in the design regulations are 

mandatory and the hearing examiner erred in permitting Wal-Mart to meet the intent 

and guidelines rather than the specific standards.  For this proposition, it cites to the 

former RMC provisions, which provided that the minimum standards "must be met."  

Former RMC 4-3-100(A)(8). As discussed above, the RMC was amended in March 

2010 before the hearing examiner made his decision.  The amendments removed the 

"must be met" language.  As quoted above, the amended version of the RMC 

applicable at the time the hearing examiner decided this case did not require an 

applicant "to demonstrate sufficiency to the standard associated with the guideline that 

has been approved" as long as the applicant satisfied the intent and guidelines 

associated with the design requirement.  RMC 4-3-100(A)(2)(b).  "'It is a well 

established rule of statutory construction that considerable judicial deference should be 

given to the construction of an ordinance by those officials charged with its 

       10 This provision does not appear in the former RMC. RNHG argues that the 
hearing examiner erred when he cited this provision in his decision on reconsideration.  
We addressed that argument above.
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66874-9-I/15

enforcement.'"  Citizens for a Safe Neighborhood v. City of Seattle, 67 Wn. App. 436, 

440, 836 P.2d 235 (1992) (quoting Mall, Inc. v. Seattle, 108 Wn.2d 369, 377, 739 P.2d 

668 (1987)); see also Gen. Motors Corp. v. City of Seattle, 107 Wn. App. 42, 57, 25 

P.3d 1022 (2001).  Our Supreme Court has explained the reasons for this rule of 

deference:  

       "The primary foundation and rationale for this rule is that considerable judicial 
       deference should be accorded to the special expertise of administrative 
       agencies.  Such expertise is often a valuable aid in interpreting and applying an 
       ambiguous statute in harmony with the policies and goals the legislature sought 
       to achieve by its enactment. At times, administrative interpretation of a statute 
       may approach 'lawmaking,' but we have heretofore recognized that it is an 
       appropriate function for administrative agencies to 'fill in the gaps' where 
       necessary to the effectuation of a general statutory scheme. It is likewise valid 
       for an administrative agency to 'fill in the gaps' via statutory construction -- as 
       long as the agency does not purport to 'amend' the statute."

Mall, 108 Wn.2d at 378 (quoting Hama Hama Co. v. Shorelines Hearings Bd., 85 

Wn.2d 441, 448, 536 P.2d 157 (1975)) (internal citations omitted).  Given the hearing 

examiner's authority to "consider proposals on the basis of individual merit," "consider 

the overall intent of the minimum standards and guidelines," and "encourage creative 

design alternatives," we decline to disturb the hearing examiner's interpretation of the 

RMC. RMC 4-3-100(D)(2). The hearing examiner did not err in considering whether

Wal-Mart met the intent and guidelines associated with the design regulations despite 

not meeting the applicable standards.  The examiner concluded on reconsideration that 

the RMC 4-3-100(A) and (D) provisions cited above "allow sufficient latitude to permit 

the proposed expansion as conditioned in the decision."  RNHG fails to show that "[t]he 

land use decision is an erroneous interpretation of the law, after allowing for such 

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deference as is due the construction of a law by a local jurisdiction with expertise."  

RCW 36.70C.130(1)(b).  

       RNHG next argues that the Wal-Mart proposal violates several design regulation 

standards.  Specifically, RNHG contends that the proposal fails to conform to standards 
governing parking areas, tree planting, and building architectural design.11  See

Appellant's Opening Br. at 25-27.  To the extent RNHG contends these standards are 

mandatory and the hearing examiner erred in concluding otherwise, our discussion 

above resolves this contention.  To the extent RNHG contends that insufficient 
evidence supports the hearing examiner's findings on these matters,12 the findings are 

verities on appeal as discussed above.  Even if we review the findings -- viewing the 

facts and inferences most favorably to the City and Wal-Mart as the prevailing parties 

below -- substantial evidence supports them under RCW 36.70C.130(1)(c) and the 

findings support the hearing examiner's conclusions.  The hearing examiner heard 

testimony at the public hearing regarding code compliance and deviations necessitated 

by the site layout and existing structure.  Various meeting attendees testified that the 

proposal would meet the design regulations' intent and guidelines even if certain 

standards were not met.  City staff prepared a detailed report and recommended

conditions to bring the proposal further in line with the intent and guidelines.  The 

       11 RNHG does not raise or brief any other specific objections to the proposal's 
compliance with the design regulations.

       12 RNHG does not specifically make an "insufficiency of the evidence" argument
and thus we need not consider it on appeal.  See First Am., 161 Wn. App. at 486
(declining to consider an inadequately briefed argument). Nevertheless, we address 
this prong of RCW 36.70C.130(1) for completeness.  

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hearing examiner also considered public comment letters describing how the Wal-Mart 

expansion would improve the surrounding area and create jobs and advancement 

opportunities for employees.  RNHG fails to demonstrate that "[t]he land use decision is 

not supported by evidence that is substantial when viewed in light of the whole record 

before the court" under RCW 36.70C.130(1)(c).

       Likewise, RNHG fails to satisfy its burden under RCW 36.70C.130(1)(d) to 

demonstrate clear error in the hearing examiner's application of the design regulations 

to Wal-Mart's proposal.  As discussed above, we defer to the hearing examiner's 

conclusion that the design regulations were not mandatory and that in the event a 

proposal fails to comply with standards, an applicant may demonstrate compliance with 

the intent and guidelines behind a particular regulation.  Relevant to RNHG's 

challenges, RMC 4-3-100's design regulation intent statements include the intent to

"maintain active pedestrian environments along streets by placing parking lots primarily

in back of buildings;" "provide safe and attractive pedestrian connections to buildings;"

and "encourage building design that is unique and urban in character, comfortable on a 

human scale, and uses appropriate building materials that are suitable for the Pacific 

Northwest climate and to discourage franchise retail architecture." RMC 4-3-100(E).  

The hearing examiner specifically addressed the noncompliance issue.  He found that 

the site layout and existing conditions justified deviation from some standards given 

that the intent was met, and he imposed conditions to bring Wal-Mart further into 
compliance.13  Given the design elements' flexibility, the hearing examiner's discretion 

       13 Among the hearing examiner's findings and conclusions are: "the applicant 
has met the intent to reduce the visual impacts of the parking lot with the use of 
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in applying them, and the examiner's specific findings -- unchallenged by RNHG and 

supported by substantial evidence in the record -- RNHG fails to demonstrate any basis 

for reversing the examiner's decision for "clear error" -- which is appropriate only if we 

are "left with the definite and firm conviction that a mistake has been committed."  

Phoenix Dev., 171 Wn.2d at 829.

       Illegal Expansion of Nonconforming Structure

       RNHG argues that the hearing examiner's decision requires reversal

because Wal-Mart proposed an illegal enlargement of a nonconforming structure 

under RMC 4-10-050.  Specifically, RNHG argues Wal-Mart's proposal (1) violates 

RMC 4-2-120(A)'s maximum front yard setback of 15 feet and (2) violates the City's 

design regulations.  The respondents argue that the RMC allows the City to waive the

15-foot maximum setback requirement.  The parties agree that the existing Wal-Mart 

store is "nonconforming" within the meaning of RMC 4-10-050.

       RMC 4-10-050(A)(4) provides that nonconforming structures "shall not be 

enlarged unless the enlargement is conforming or it is consistent with the provisions of 

a rebuild approval permit issued for it." RMC 4-2-120(A) imposes a 15-foot maximum 

front yard setback requirement in the commercial arterial zone.  Due to a large parking 

lot in front of the store, the existing Wal-Mart store's front entrance is approximately 

555 feet from the relevant access roads (Hardy Avenue SW and Rainier Avenue S).  

landscaping"; "the applicant proposes changes to its front or eastern façade to provide 
more visual interest"; "the applicant has gone beyond code requirements to provide 
additional interior landscaping and perimeter landscaping to shield and buffer the 
parking lot"; and "pedestrian pathways and amenities near the front of the store have 
been enhanced." The hearing examiner's conditions required Wal-Mart to comply with 
guidelines regarding lighting, building façade, landscaping, and other areas.  
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To comply with RMC 4-2-120(A)'s 15-foot maximum setback requirement, Wal-Mart's 

expansion would need to extend approximately 540 feet across its existing parking 

area.  The hearing examiner found:

       The [Commercial Arterial] Zone requires a maximum front yard setback of 15 
       feet in order to locate structures closer to the street and reduce the visual impact 
       of parking along thoroughfares.  The proposed expansion would not comply with 
       this requirement providing a setback of approximately 555 feet from Hard[y]-
       Rainier.  Staff found that since the expansion encompasses a small portion of 
       the proposed existing complex it does not trigger a need to conform to the 
       newer, current standards.

The hearing examiner concluded:

       The existing use, a large "big box" establishment does not meet current code 
       requirements for the setback along its frontage street, the Hard[y]-Rainier
       complex.  Only an incredibly large expansion or complete rebuild could move the 
       front of the store to the street and parking to the rear.  The proposed 
       approximately 16,000 square foot expansion cannot be expected to accomplish 
       the maximum front yard setback of 15 feet.  As a practical matter the tradeoff is 
       allowing a reasonably well-designed expansion and revitalized store or probably 
       permitting no change weighs in favor of the excessive setback. . . .
              . . . . The extensive setback, while non-conforming as to the Zoning Code, 
       actually helps the transition between a rather large big box store and its 
       neighboring uses . . . . 

       RNHG first argues that because (1) a portion of the hearing testimony referred to 

RMC provisions for "alterations" rather than "enlargements," and (2) "[t]here is no 

reference to or acknowledgment of RMC 4-10-050 by the Examiner in his conclusion,"

the hearing examiner and City staff misinterpreted the RMC's provisions regarding 

enlargement of nonconforming structures.  Appellant's Opening Br. at 15-16.  The 

hearing examiner's decision shows that while the hearing examiner did not explicitly

cite RMC 4-10-050, he considered this provision.  The hearing examiner concluded that 

the existing store was nonconforming and that given the existing layout and site 

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constraints, the expansion could not "be expected to accomplish the maximum front 

yard setback of 15 feet." The hearing examiner thus considered RMC 4-10-050(A)(4)'s 

requirement that nonconforming structures "shall not be enlarged unless the 

enlargement is conforming." Any reference to "alterations" rather than expansions in 

the hearing testimony is harmless given the hearing examiner's final decision, which 

considered Wal-Mart's proposal under the proper "expansion" analysis.

       RNHG next argues that the hearing examiner erred in concluding that the City's 

design regulations contained in RMC 4-3-100 supersede RMC provisions that prohibit 

expansion of nonconforming structures. The respondents contend that the expansion 

complies with the design regulations, which take precedence over any conflicting 

zoning requirements -- including the 15-foot maximum setback.

       In response to RNHG's request for reconsideration, the hearing examiner 

explained the relationship between RMC 4-3-100's design regulations and the other 

zoning provisions in the RMC:

       The Design District Regulations are 'overlay' provisions [that] govern properties 
       within their boundaries regardless of the underlying zoning and other zoning 
       provisions.  The overlay guidelines provide that projects be reviewed with an eye 
       toward flexibility to forward the main thrust of the guidelines  --  to create better 
       designed and integrated projects.  The guidelines allow different or creative 
       ways to achieve those principles.  

Further, the hearing examiner emphasized that (1) the design regulations' intent 

statements and guidelines "'provide direction for those who seek to meet the required 

element in a manner that is different from the standards'" and (2) the reviewing official 

should "'encourage creative design alternatives in order to achieve the purposes of the 

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design regulations.'" CP at 78 (quoting RMC 4-3-100(A)(2), (A)(2)(b)).  

       The hearing examiner clarified for RNHG that the RMC 4-3-100's design 

regulations apply to "'[a]lterations, enlargements, and/or restorations of nonconforming 

structures pursuant to RMC 4-10-050'" as well as to "'[b]ig box retail'" such as Wal-

Mart. CP at 78 (quoting RMC 4-3-100(B)(1)(a)(v) and (b)). Thus, "not only is the 

redevelopment of non-conforming uses permitted under these [design] regulations but 

they, in the language of the code, 'shall be required to comply with the provisions of 

[the design regulations].'" CP at 78-79 (quoting RMC 4-3-100(B)(1)(a)).  

       As discussed above, "[w]hen construing an ordinance, a 'reviewing court gives 

considerable deference to the construction of the challenged ordinance by those 

officials charged with its enforcement.'"  Phoenix Dev., 171 Wn.2d at 830 (quoting 

Ford Motor Co. v. City of Seattle, 160 Wn.2d 32, 42, 156 P.3d 185 (2007)).  At issue 

here is the proper interpretation of the relationship between two RMC provisions:

RMC 4-10-050(A) (nonconforming uses) and RMC 4-3-100 (design regulations).  

RMC 4-3-100(B)(1)(b)(ii) states that all big box retail development in the Commercial 

Arterial zone must comply with the design regulations. And as discussed above, 

"[w]here there are conflicts between the design regulations of [RMC 4-3-100] and other 

sections of the Renton Municipal Code, the [design regulations] shall prevail.  RMC 4-3-

100(B)(2).  

       The hearing examiner interpreted the RMC to permit properties within the design 

regulation districts to be developed "in accordance with the guidelines rather than the 

more general regulations governing properties outside of a District governed by overlay 

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regulations."  Thus, Wal-Mart's proposal need only comply with the design regulations, 

not RMC 4-10-050(A)'s nonconforming use provisions.  Assuming a conflict existed 

between RMC 4-3-100's design regulations and RMC 4-10-050(A)'s provisions 

governing nonconforming uses, this is a reasonable interpretation given the conflicts 

language in RMC 4-3-100(B)(2).  Because we defer to the City's determination of what 

the RMC requires, we conclude that the hearing examiner properly interpreted the RMC

to allow Wal-Mart -- in the event the two RMC provisions at issue conflict --  to comply 

with the design regulations rather than the nonconforming use provisions.

       We next consider whether a conflict exists.  RNHG argues that the 15-foot 

setback requirement and the design regulations do not conflict and therefore the design 

regulations do not supersede the 15-foot setback.  The respondents argue that the 15-

foot setback conflicts with the design regulations as applied by the hearing examiner.

       A conflict exists when it is "impossible to comply" with two separate directives.  

See Magnolia Neighborhood Planning Council v. City of Seattle, 155 Wn. App. 305, 

318, 230 P.3d 190 (2010) (addressing conflicts standards in context of federal 

preemption); Lawson v. City of Pasco, 144 Wn. App. 203, 213-14, 181 P.3d 896 (2008) 

(applying the federal "impossible to comply" conflict test in deciding whether a state 

statute conflicted with a city ordinance).  

       In Baker v. Snohomish County Department of Planning & Community 

Development, 68 Wn. App. 581, 841 P.2d 1321 (1992), we addressed a claim of 

conflict between the permitting requirements of a state regulatory agency and a county.  

We found it "impossible to demonstrate in the abstract that the provisions of [a state 

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regulatory agency permit] and the provisions of the [county] land-use permit are in 

conflict" when both the state regulatory agency and the county have a large measure of 

discretion in fixing the terms of a permit.  Baker, 68 Wn. App. at 591.  "Where any 

conflict is hypothetical and dependent upon the precise manner in which two 

discretionary permits were crafted, it is inappropriate to find preemption by implication.  

It is soon enough to find preemption when a conflict arises."  Baker, 68 Wn. App. at

591. Thus, we have acknowledged that agencies may need to exercise their discretion 

before we can determine whether a conflict exists.  

       As discussed above, the design regulations confer considerable discretion on 

the hearing examiner.  Applicable RMC 4-3-100 design regulation intent statements 

regarding building placement and design include the intent to "organize buildings for 

pedestrian use;" "ensure an appropriate transition between buildings, parking areas, 

and other land uses;" "make building entrances convenient to locate and easy to 

access;" "ensure that building entries further the pedestrian nature of the fronting 

sidewalk and the urban character of the district;" "maintain active pedestrian 

environments along streets by placing parking lots primarily in back of buildings;"

and "provide safe and attractive pedestrian connections to buildings."  

RMC 4-3-100(E)(1)-(3).  

       Here the hearing examiner considered the required design elements and 

determined that a larger setback was appropriate because it allowed for better design.  

He concluded that "only an incredibly large expansion or complete rebuild" would meet 

the 15-foot setback requirement and that Wal-Mart's proposed 16,000 square foot 

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expansion "cannot be expected to close the distance to the street to 15 feet." CP 1001, 

1002.  He determined, "The extensive setback . . . helps the transition between a rather 

large big box store and its neighboring uses." He also determined that "[t]aking 

advantage of the building's existing placement . . . help[s] achieve a reasonable 

proposal."  Other relevant conclusions include that "[Wal-Mart] has gone beyond code 

requirements to provide additional interior landscaping and perimeter landscaping to 

shield and buffer the parking lot;" "[p]edestrian links through the site and to the 

surrounding sidewalks help mitigate some of the impacts;" and "pedestrian pathways 

and amenities near the front of the store have been enhanced."  The hearing examiner 

characterized his decision as a "tradeoff . . . allowing a reasonably well-designed 

expansion and revitalized store or probably permitting no change weighs in favor of the 

excessive setback."  Thus, the hearing examiner exercised his discretion in finding that 

Wal-Mart's proposal, while not compliant with several design regulation standards, met 

the intent and guidelines of the design regulations.  Upon exercising this discretion, the 

15-foot setback was impossible to achieve.  We conclude that a conflict exists between 

RMC 4-3-100 design regulations and RMC provisions that prohibit expansion of 

nonconforming uses.  The hearing examiner properly applied RMC 4-3-100 rather than 

RMC 4-10-050.

       RNHG also argues that in addition to violating the 15-foot setback requirement, 

Wal-Mart's proposal violates the design regulations pertaining to building and parking 

structures.  This claim fails for the reasons discussed above.

       Attorney Fees

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Wal-Mart and the City seek attorney fees on appeal as the prevailing parties under 

RCW 4.84.370.  The prevailing party on appeal of a land use decision is entitled to its 

attorney fees if that party's decision also prevailed before the administrative agency 

and in the superior court.  RCW 4.84.370(1); Friends of Cedar Park 156 Wn. App. at 

654-55.  As the prevailing parties, the City and Wal-Mart are entitled to an award of 

reasonable attorney fees on appeal subject to compliance with RAP 18.1.

                                        CONCLUSION

       RNHG fails to demonstrate that the hearing examiner misconstrued the city code 

or misapplied the law to the facts.  Because RNHG has not met its burden of showing it 

is entitled to relief from the hearing examiner's decision under the LUPA, we affirm.

WE CONCUR:

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