Leo McMilian, an individual, Respondent,
v.
KING COUNTY, a Washington municipal corporation, Appellant,
Sherry McMilian, an individual, Defendant.
Court of Appeals of Washington, Division 1.
*741 Cristy J. Craig, King County Prosecuting Office, Seattle, WA, for Appellant.
Jean Barr Jorgensen, Singleton & Jorgensen Inc. PS, Renton, WA, Dalynne Singleton, Singleton & Jorgensen Inc. PS, Port Orchard, WA, for Respondent.
Sherry McMilian, Maple Valley, WA, for Other Party.
*742 DWYER, C.J.
¶ 1 Valid nonconforming uses of land are permitted where those uses were lawfully established prior to the adoption of contrary zoning legislation. The requirement that the use be lawfully established is not limited to compliance with zoning legislation but, rather, also demands compliance with general statutory requirements. Although such nonconforming uses are disfavored, they are permitted to continue in order to avoid constitutional due process concerns arising from interference with a landowner's property rights. Such constitutional concerns do not arise, however, where a trespasser establishes the use. Thus, we hold that a trespasser onto land cannot lawfully establish a valid nonconforming use.
¶ 2 Nevertheless, a user of another's land will not be presumed to be trespassing upon that land. Because the hearing examiner herein improperly presumed that the user of neighboring land was trespassing, we remand for additional findings on the issue of whether a valid nonconforming use existed. We affirm the hearing examiner's decision that a clearing permit was required.
I
¶ 3 Leo McMilian owns two adjacent parcels on the west side of Enchanted Parkway South in the unincorporated area east of Federal Way. He currently operates an automobile wrecking yard on both parcels. McMilian purchased the northern parcel (parcel number XXXXXX-XXXX) and the wrecking yard business associated with that property in 2002. Several months later, McMilian purchased the southern parcel (parcel number XXXXXX-XXXX). McMilian appears to be the first wrecking yard owner to own both the northern and southern parcels. Both parcels are currently zoned to allow residential development.
¶ 4 The northern parcel has been used as a wrecking yard business since prior to 1958. In 1958, King County's zoning ordinances were amended such that a wrecking yard use was prohibited in the area. However, the wrecking yard use on the northern parcel remains a valid nonconforming use. The southern parcel was primarily forested land and seems to have been used by the prior owners only for logging purposes. Prior owners of the northern parcel had also used part of the southern parcel for the wrecking yard business and, thus, the wrecking yard "bulged" past the northern parcel's property lines. Various owners of the southern parcel had offered to sell the property to at least one of the previous owners of the northern parcel prior to the sale to McMilian being consummated.
¶ 5 In 2005, McMilian cleared the southern parcel of much of the vegetation and placed numerous vehicles on it. Thereafter, the King County Department of Development and Environmental Services (DDES) investigated complaints regarding the southern parcel.
¶ 6 In 2007, DDES issued a notice of King County Code violations, which included the following violations:
1. Operation of an auto wrecking business from a residential site that does not meet the requirements for a home occupation in violation of Section 21A.30.080 (and the allowed use section that the use would be under such as contractor' [sic] storage yard etc) of the King County Code.
2. Cumulative clearing and grading of over 7,000 square feet without the required permits, inspections, and approvals.
3. Construction of a fence over 6 feet in height without the required permits, inspections, and approvals in violations of Sections 21A12.170, 21A14.220 of the King County Code, and Section 105.2 of the International Building code.
Clerk's Papers (CP) at 14. The notice ordered McMilian to abate his wrecking yard use of the southern property and to obtain the necessary permits for the clearing activity and for the over-height fence.
¶ 7 McMilian administratively appealed the notice of violation to the Office of the Hearing Examiner for King County. McMilian argued, in part, that the operation of the wrecking yard on the southern parcel was a valid nonconforming use because the wrecking *743 yard business had spilled over onto the southern parcel for years. After an administrative hearing, the hearing examiner issued his report and decision on May 26, 2009. The hearing examiner found, in pertinent part:
4. An auto wrecking business has long been conducted on the property directly abutting to the north, under a series of ownerships. During prior ownerships, some spillover of the auto wrecking operation occurred onto the subject property, which was not owned by the prior ownerships of the auto wrecking business (it was purchased by Appellants after their purchase of the main Astro Auto Wrecking site abutting to the north). The spillover consisted of storage of some wrecked and dismantled cars and numerous junk auto parts and tires. The property was not utilized in active auto wrecking operations as was the main operation to the north.
5. No express permission was granted by the owners of the subject property to the prior operators of the auto wrecking business to the north to utilize the subject property for auto wrecking/auto storage purposes or any other related activity. Neither was eviction commenced.
6. A prior owner of the adjacent property, Richie Horan, testified that he was never asked to discontinue use of the property in the spillover auto wrecking/auto storage activity. He considered purchasing the subject property but never did, and speculated whether there was a possibility of adverse possession by his usage, though no adverse possession claim was ever made or asserted.
7. Upon their purchase of the subject property, the Appellants in or around 2005 commenced clearing of the subject property of its significant overstory and underbrush vegetation and removal of a substantial amount of auto parts, tires, a few vehicles, etc. The tree cover was so substantial that the vehicles, auto parts, etc., were not visible (at least not easily discernible) from aerial photographs taken prior to the time of clearing.
8. In clearing the property of vegetation, approximately 1.7 acres, or the vast majority, of the 1.9-acre property was cleared.
9. With some exceptions where the threshold is zero, not applicable here, clearing of vegetation in excess of 7,000 square feet of area must be conducted under the auspices of a clearing and grading permit. [KCC 16.82.051]
10. No clearing and grading permit was obtained for the clearing activity.
CP at 110 (footnote omitted).[1]
¶ 8 The hearing examiner then concluded, as a matter of first impression in Washington, that a trespasser using property cannot establish a valid nonconforming use:
Particularly given the context of nonconforming uses being disfavored in the law, and of the allowance of nonconforming uses to continue chiefly in order to respect private property rights ..., the requirement that there be a lawful establishment of the nonconforming use must logically include that it had been established under due property ownership or permission, i.e., not merely by trespass, criminal or not. Mere silent acquiescence (as asserted) by lack of expression of a demand to vacate is insufficient to accord [the prior owner of the northern parcel] a possessory or permission claim which would support a conclusion of legal nonconforming rights. It belies common sense to conclude that a person who operates a land use on property not owned by that person, without permission to operate such use, and without adverse possession, has established a lawfully *744 operated use and a property right which must then be accorded disfavored nonconforming use status.
CP at 111-12. The hearing examiner further concluded that "[t]he subject property does not benefit from a nonconforming use right to an auto wrecking yard or an auto storage yard." CP at 112. Moreover, the hearing examiner sustained the other two charges of violation for the clearing activity and the overheight fence.[2]
¶ 9 McMilian filed a petition pursuant to the Land Use Petition Act (LUPA), chapter 36.70C RCW, in the King County Superior Court, challenging the hearing examiner's decision. The superior court requested additional briefing on the issue of an individual's status for purposes of establishing a nonconforming use. The superior court then reversed the hearing examiner's decision except as to the violation related to the fence, an issue that the superior court determined McMilian had abandoned. The superior court explained:
The Hearing Examiner concluded that ... to be lawfully established, such a non-conforming use must be established through property ownership or permission, and not trespass.... I conclude the better reasoning is that lawful use relates to whether the use was lawful under the zoning laws in effect, not whether the user was a trespasser.
CP at 736. The superior court thus found "that the Hearing Examiner erred in concluding that the right to maintain a nonconforming use depends upon ownership of the land, as opposed to being a right that attaches to, and runs with, the land." CP at 733. The superior court determined "that the King County Hearing Examiner's decision that the subject parcel does not constitute a legal nonconforming use should be reversed." CP at 733.
¶ 10 King County appeals.
II
¶ 11 Review here is governed by the LUPA. In a LUPA appeal, we review the decision of the "local jurisdiction's body or officer with the highest level of authority to make the determination." RCW 36.70C.020(2); Citizens to Preserve Pioneer Park LLC v. City of Mercer Island,
¶ 12 McMilian seeks relief from the hearing examiner's decision pursuant to RCW 36.70C.130(1)(b), (c), (d), and (f), contending that the hearing examiner erroneously interpreted the law, erroneously applied the law to the facts, failed to base findings of fact on substantial evidence, and violated McMilian's constitutional rights in making his decision.
¶ 13 We review de novo claimed errors of law. Girton v. City of Seattle,
*745 III
¶ 14 McMilian first contends that the hearing examiner erroneously interpreted the law by determining that a nonconforming use cannot be established by a trespasser and, further, by presuming that a person using land is a trespasser in the absence of an explicit agreement with the landowner to use that land. We agree with the hearing examiner that a trespasser cannot establish a valid nonconforming use but disagree that there is a presumption of trespass.
¶ 15 Generally, "[a] nonconforming use is a use which lawfully existed prior to the enactment of a zoning ordinance, and which is maintained after the effective date of the ordinance, although it does not comply with the [current] zoning restrictions applicable to the district in which it is situated." Rhod-A-Zalea & 35th, Inc. v. Snohomish County,
¶ 16 "Legal, nonconforming uses are vested legal rights." First Pioneer Trading Co., Inc. v. Pierce County,
¶ 17 "The policy of zoning legislation is to phase out a nonconforming use." Anderson,
¶ 18 As stated above, generally speaking, "[a] nonconforming use is one which lawfully existed prior to the effective date of a zoning restriction, and which is allowed to continue to exist in nonconformity with the restriction." 8A McQUILLIN, supra, § 25.180, at p. 7. In King County, a nonconforming use is currently defined as
any use ... established in conformance with King County rules and regulations in effect at the time of establishment that no longer conforms to the range of uses permitted in the site's current zone or to the current development standards of the code due to changes in the code or its application to the subject property.
King County Code (KCC) 21A.06.800. Furthermore, King County's provision regarding "establishment of uses" provides in relevant part that "[a]ll applicable requirements of this code, or other applicable state or federal requirements, shall govern a use located in unincorporated King County." KCC 21A.08.010.
¶ 19 These provisions do not explicitly require that a nonconforming use must have been lawful at the time that it was established. However, prior versions of the King County Code contained a definition of nonconforming use that more closely resembles the general description discussed by cases and commentators:
"`Nonconforming use' means a use which was lawfully established and maintained but which, because of the application of this title, no longer conforms to the use regulations of the zone in which it is located as defined by this title."
Meridian Minerals,
¶ 20 Nonconforming use ordinances "are not intended to protect uses which were not legally commenced or continued." PATRICIA E. SALKIN, AMERICAN LAW OF ZONING, § 12.11, at p. 12-38 (5th ed. 2009). There is, however, a significant division of judicial opinion over whether the requirement that a use be lawfully established requires compliance simply *747 with land use legislation or also with general legislation. "Where illegality results from a statutory provision not related to land use or zoning, one view is that the use does not thereby lose its status as a valid nonconforming use. Other jurisdictions, however, have declined to follow this distinction." 8A McQUILLIN, supra, § 25.186.50, at pp. 58-59 (footnote omitted). Compare Maricopa County v. Barkley,
The diversity of opinion arises as to just what renders a pre-existing use unlawful. Rathkopf ... is of the opinion that only a noncompliance with an ordinance which regulates the use of land will disqualify an individual's property from attaining the status of a legal nonconforming use. On the other hand, Yokley theorizes that any prior use of land in an unauthorized character or any business endeavor carried on in contravention of an ordinance unrelated to zoning is sufficient to disqualify a property owner from acquiring a legal nonconforming use.
Town of Scituate v. O'Rourke,
¶ 21 No Washington court has directly decided this question. However, Division Two of our court, in its decision in First Pioneer Trading, determined that First Pioneer had failed to establish that it was lawfully using property as a manufacturing site in part because it had failed to obtain any building permits or site development review.
¶ 22 The author of one treatise indicates that a literal reading of the requirement that a nonconforming use "lawfully exist" prior to the zoning change leads to the conclusion that a trespasser cannot establish a nonconforming *748 use because a trespasser is acting in violation of the law. 8A McQUILLIN, supra, § 25.186.50, at p. 57 ("In many cases the rule requiring lawful establishment and existence of a use is not applied strictly according to its literal meaning, as where an existing use involves elements of trespass." (footnote omitted) (citing Village of Skokie v. Almendinger,
¶ 23 Courts of other jurisdictions, when presented with this question, disagree regarding the relevance of a user's status as a trespasser. Several state courts have interpreted the requirement that a use "lawfully exist" in a restricted manner, holding that the status of the individual engaging in a use is irrelevant to the determination of whether a valid nonconforming use was lawfully established. In particular, the rule in Pennsylvania is that "the existence of a nonconforming use is not affected by the user's title or possessory rights in relation to the owner of the land." Fayette County v. Cossell,
Zoning law has no application to the resolution of disputes between private parties over real estate interests. Our Supreme Court and this court have enunciated that principle in analogous cases holding that zoning status is unaffected by building and use restrictions created by private contract, and, if they are violated, the remedy is enforcement of the restrictions in a court by the persons entitled to enforcement, not by way of zoning proceedings.
Cossell,
¶ 24 Illinois adopted a similar rule in a case where landowners had been operating a nonconforming "trailer camp" use on two parcels that they owned and on a third parcel that they were using "without the knowledge or consent of the owner." Almendinger,
¶ 25 In contrast, other state courts have adopted the literal meaning of the requirement that a use "lawfully exist," holding that a nonconforming use can be established only by an individual lawfully on the property and not by a trespasser. For example, in New Jersey, in a criminal prosecution, the court affirmed the defendant's conviction for violation of the township zoning ordinance based *749 on the operation of a nonconforming boat storage use. State on Complaint of Mallet v. Loux,
any appropriation of the land by [a trespasser] amounted to an unlawful use. To give nonconforming-use vitality to a disfavored use by a trespasser would serve neither the specific object of the Zoning Act provision relating to nonconforming uses ... nor the more general purpose of eliminating uses not in conformity with the municipal zoning scheme.
Loux,
¶ 26 Similarly, a Delaware court held that a landowner could not establish a valid nonconforming use because, although he had used the property prior to purchasing it, he "was never granted permission to make use of [the subject property], nor was such use acquiesced in," and, thus, his use constituted a trespass. Minquadale Civic Ass'n v. Kline,
¶ 27 We find the latter of the two theories, requiring compliance both with land use legislation and with general legislation, to be the more persuasive. Such a rule is consistent with the purpose underlying the continuance of nonconforming uses, which is to avoid potential constitutional due process challenges to zoning legislation arising from deprivations of property rights. Miller,
¶ 28 Such a rule is also consistent with the principle that "[n]onconforming uses are disfavored under the law," Open Door Baptist Church,
¶ 29 Thus, contrary to McMilian's contention, the hearing examiner correctly ruled that a trespasser may not establish a valid nonconforming use.[10]
*750 IV
¶ 30 Although the hearing examiner employed the correct legal rule regarding the lawful establishment of nonconforming uses, the hearing examiner did not correctly apply this principle to the facts herein.
¶ 31 The hearing examiner did not make any express finding that any use of the southern property as part of the wrecking yard was accomplished through a trespass. Rather, the hearing examiner found only that the owners of the southern property had not given express permission or endeavored to evict the operators of the wrecking yard. By concluding that McMilian had not established a legal nonconforming use on these facts, the hearing examiner could only have presumed that, absent explicit agreement or permission, a user of another's property must be a trespasser and, therefore, that McMilian's predecessors in interest, who had used a portion of the southern parcel for wrecking yard purposes, were trespassers onto the southern parcel.
¶ 32 This is not the correct legal standard. Cf. Kunkel v. Fisher,
¶ 33 Accordingly, the hearing examiner erred by presuming that, because the owners of the southern parcel had not explicitly agreed to or permitted the wrecking yard operator's use of the southern parcel, the operators of the wrecking yard were necessarily trespassing onto the southern parcel. Because the southern parcel was vacant, open, unenclosed, and unimproved, the presumption that the southern parcel owner acquiesced in another's use of that property applies. See Sharp,
V
¶ 34 McMilian contends that the hearing examiner found that the wrecking yard use existed on the southern parcel prior to 1958. Contrary to McMilian's assertions, however, no such finding is in the record.
¶ 35 For his contention, McMilian relies only on the hearing examiner's finding that:
An auto wrecking business has long been conducted on the property directly abutting to the north, under a series of ownerships. During prior ownerships, some spillover of the auto wrecking operation occurred onto the subject property, which was not owned by the prior ownerships of the auto wrecking business (it was purchased by Appellants after their purchase of the main Astro Auto Wrecking site abutting to the north). The spillover consisted of storage of some wrecked and dismantled cars and numerous junk auto parts and tires. The property was not utilized in active auto wrecking operations as was the main operation to the north.
CP at 110 (emphasis added). The hearing examiner did not make any finding with regard to whether the wrecking yard use was established on the southern parcel prior to 1958, only that it "has long been conducted" on the northern parcel and that some spillover had occurred onto the southern parcel. We cannot, on this basis, conclude that McMilian has met his burden to prove by a preponderance of the evidence that the wrecking yard use was established prior to 1958, as necessary to establish that a nonconforming use then existed.[12] There is evidence in the record that would support either a finding that the southern parcel had been used for the wrecking yard prior to 1958 or, conversely, a finding that the southern parcel had not been so used prior to 1958. Accordingly, we remand to the hearing examiner for a determination of whether the wrecking yard use existed on the southern parcel prior to 1958.[13]
*752 VI
¶ 36 McMilian next contends that the hearing examiner erred by determining that McMilian's clearing activities required a clearing permit. We disagree.
¶ 37 Pursuant to the King County Code, a permit is required for all clearing of 7,000 square feet or more of property, unless a specific exception applies. KCC 16.82.050; KCC 16.82.051(C)(3) All exemptions to the permit requirement are set forth in a table. KCC 16.82.051(B). There are exemptions for maintenance of driveways; farm field access roads; utility corridors; surface water conveyance systems; outdoor public facilities and parks; agricultural drains and ponds; cemetery graves; lawns, landscaping, and gardening for personal consumption; and golf courses. Most of these exemptions are conditioned on the requirement that they be done
in conjunction with normal and routine maintenance activities, if:
a. there is no alteration of a ditch or aquatic area that is used by salmonids;
b. the structure, condition or site maintained was constructed or created in accordance with law; and
c. the maintenance does not expand the roadway, lawn, landscaping, ditch, culvert or other improved area being maintained.
KCC 16.82.051(C)(13).
¶ 38 Despite McMilian's contentions to the contrary, no exemption exists for routine maintenance of a wrecking yard. Accordingly, McMilian was required to obtain a clearing permit in order to clear over 7,000 square feet of property. Ample evidence in the record supports the hearing examiner's finding that McMilian cleared the vast majority of his 1.9-acre lot of vegetation.[14] Accordingly, the hearing examiner properly sustained King County's charge of violation for failure to obtain a permit for the clearing activity.
VII
¶ 39 McMilian requests an award of attorney fees pursuant to RCW 4.84.370.[15] Given that neither party prevailed in all proceedings, as envisioned by the statute, no attorney fees can be awarded herein pursuant to this provision.[16]
VIII
¶ 40 We remand the matter to the hearing examiner for a decision, based on the existing record, as to whether McMilian established that the wrecking yard use was extant on the southern parcel prior to 1958. If the hearing examiner determines that McMilian met his burden to prove this fact, the presumption of permissive use of the property applies, and the hearing examiner must decide whether McMilian has proved that a valid nonconforming use exists on the southern parcel.
¶ 41 Affirmed in part and remanded.
We concur: ELLINGTON and BECKER, JJ.
NOTES
Notes
[1] In his appeal from the hearing examiner's decision to the superior court, pursuant to the Land Use Petition Act (LUPA), chapter 36.70C RCW, McMilian assigned error to several of the hearing examiner's findings of fact, including findings of fact 4, 6, 7, 8, 11, 12, 13, and 14. The hearing examiner's findings of fact will be sustained where they are supported by substantial evidence. RCW 36.70C.130(1)(c). A review of the record reveals that each of the challenged findings is supported by substantial evidence.
[2] The hearing examiner determined that King County had not alleged a grading violation but rather had alleged only a clearing violation. Thus, although there was evidence that a grading permit was necessary, grading issues were disregarded in the hearing examiner's disposition of the case. This is not an issue before us.
[3] RCW 36.70C.130(1) provides six bases for relief:
(a) The body or officer that made the land use decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless;
(b) The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise;
(c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court;
(d) The land use decision is a clearly erroneous application of the law to the facts;
(e) The land use decision is outside the authority or jurisdiction of the body or officer making the decision; or
(f) The land use decision violates the constitutional rights of the party seeking relief.
[4] King County attempts to misplace the burden on the landowner, McMilian, to establish that the alleged legal nonconforming use was not abandoned after 1958. However, once a landowner has proved that a valid nonconforming use was lawfully established at the time the relevant zoning code was enacted, the burden of proving that a nonconforming use was subsequently abandoned, such that it should no longer be recognized, is properly placed on the party asserting abandonment, here King County.
[5] Consistent with the purpose underlying the continuation of legal nonconforming usesto avoid potential constitutional due process challenges to zoning codesis the rule that "a vested right to a nonconforming use cannot exist unless the particular use in question is in fact established prior to the enactment of the zoning ordinance." Anderson,
[6] In 1958, when the wrecking yard use became a nonconforming use, the definition of nonconforming use was:
A use lawfully established and maintained that does not conform with the regulations of the use district in which it is situated by reason of the adoption of Districting (Zoning) Resolution No. 6494 (June 2, 1937).
JOURNAL OF PROCEEDINGS OF CNTY. COMM'RS, KING COUNTY, Res. No. 18801, § 2.15, at p. 329 (King County, Wash. Aug. 12, 1958), available at http:// www.kingcounty.gov/operations/archives/ environmentalhistory/~/media/operations/ archives/documents/RES18801Part1.ashx, http:// www.kingcounty.gov/operations/archives/ environmentalhistory/~/media/operations/ archives/documents/RES18801Part2.ashx.
[7] We are aware of our decision in Van Sant v. City of Everett,
Our decision in Van Sant is not, however, determinative of the question presented herein because the present case regards the question of whether a nonconforming use was ever validly established in the first instance rather than the question of whether a validly established nonconforming use had subsequently been abandoned. In Van Sant. we recognized that this was an important distinction: "[T]he City's cases are distinguishable. [In those cases,] there was no previous finding of a nonconforming use ... [and] the landowner's right to nonconforming use had never actually vested. In contrast, in the present case the nonconforming commercial use clearly vested in 1972." Van Sant,
[8] The Illinois court so held, in part, because it interpreted the legislative intent in the zoning code to require "liberal construction" in order to give "due allowance ... for existing conditions... and the uses to which the property is devoted." Almendinger,
[9] Ohio has adopted a similar rule, with the Supreme Court of Ohio holding that licensees could establish a valid nonconforming use. Pierce,
[10] McMillan primarily contends that the status of the user of the land is irrelevant because nonconforming use rights run with the land rather than with the landowner. It is true, as McMilian emphasizes, that once a nonconforming use is established, the right to continue the nonconforming use runs with the land rather than with the landowner:
The right to maintain a nonconforming use does not depend upon ownership or tenancy of the land on which the use is situated. The right attaches to the land itself; it is not personal to the current owner or tenant. Accordingly, a change in the ownership or tenancy of a nonconforming business or structure does not affect the right to continue the nonconforming use.
2 SALKIN, supra, § 12.40, at pp. 12-153, 12-154 (footnotes omitted); see also City of Univ. Place v. McGuire,
[11] Such a presumption is not afforded to those using lands that are not vacant and unimproved. Drake v. Smersh,
[12] The superior court found that "the subject parcel has been used as a storage yard in conjunction with the adjoining automobile wrecking yard since prior to 1958." CP at 733. However, we review the hearing examiner's findings and do not give any deference to the superior court's findings. Griffin v. Thurston Cnty. Bd. of Health,
[13] King County contends that, were we to find that the wrecking yard use on the southern parcel qualifies as a valid nonconforming use, we could affirm the hearing examiner's decision on the basis that McMilian illegally intensified the wrecking yard use. However, King County's notice of violation and order did not allege that McMilian illegally intensified the nonconforming use of the wrecking yard. The hearing examiner declined to reach this issue, as did the superior court. King County provides no authority that would allow us to review this issue. Accordingly, we decline to address the possibility of illegal intensification.
[14] There was testimony that the southern parcel was almost two acres in size. Aerial photographs reveal that practically all of the southern parcel was cleared of vegetation before the 2005 photograph was taken. Further, there was testimony from DDES employees that 1.7 acres of the southern parcel's 1.9 acres were cleared.
[15] RCW 4.84.370 authorizes an award of attorney fees to the prevailing party before the Court of Appeals where that party also prevailed before the local government and in all prior judicial proceedings.
[16] Given that McMilian is not the substantially prevailing party here, it is unnecessary for us to reach McMillan's challenge to the constitutionality of RCW 4.84.370.