IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CAPE ST. MARY ASSOCIATES, ) NO. 79333-1-I
Appellant, ) DIVISION ONE
v.
) UNPUBLISHED OPINION
SAN JUAN COUNTY, )
)
Respondent. ) FILED: March 2, 2020
LEACH, J. — Cape St. Mary Associates (CSMA) challenges a San Juan
County Hearing Examiner’s decision that any application to subdivide or vacate
the Ranch Tract of the plat Cape St. Mary Estates had to be signed by all of the
lot owners in the subdivision. Because the Cape St. Mary plat unambiguously
incorporated a restrictive covenant requiring that the Ranch Tract be used only
for “primarily agricultural” purposes, RCW 58.17.212 requires that all the lot
owners in the subdivision provide signatures showing their approval of any
alteration proposal. We affirm.
FACTS
In 1978, CSMA, a business entity owned by the Oles family, submitted a
preliminary plat for a subdivision to be known as Cape St. Mary Estates (Cape
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St. Mary). The application proposed dividing 65 acres into 29 lots with an
average density of 2.24 acres per lot. The 65 acres included both shoreNne and
upland property. CSMA also owned an adjacent 88-acre parcel called the Ranch
Tract not included in the application.
The San Juan County Planning Commission recommended that the board
of county commissioners deny the application unless CSMA revised it to reduce
housing density.1 The board adopted this recommendation.
CSMA filed a lawsuit challenging the board’s decision. The court denied
CSMA’s request to approve the plat as proposed but remanded the matter to the
planning commission for a new hearing because of a problem with the record.
At the new hearing, CSMA presented a revised proposal that included the
Ranch Tract. In April 1980, the planning commission issued findings and a
decision that recommended approval of the preliminary plat of Cape St. Mary
Estates. In May 1980, the board approved the revised preliminary plat “[b]ased
on the findings and recommendations presented to the Board by the Planning
Commission.” Of significance to this case, the commission recommended that
“[a]pproximately 90 acres known as Oles Ranch [would] be included as a tract,
1 At the time, San Juan County had not adopted a comprehensive plan.
The San Juan County Shoreline Master Program designated the shoreline
property “Rural” with a density of one dwelling unit per two acres. But no density
restriction applied to the upland property.
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No. 79333-1-I I 3
subject to all restrictions and covenants, including that it be for agricultural
purposes—not residential.”
Later, the San Juan County Planning Director advised CSMA that the
conditions of approval recommended by the commission would apply when the
board reviewed CSMA’s final plat application. CSMA disagreed and asked the
board to review the planning director’s determination. At a hearing on July 7,
1981, the board affirmed the director’s decision about conditions for final plat
approval. CSMA did not seek judicial review of this decision.
On July 14, 1981, the board confirmed that it had approved the preliminary
plat with the conditions recommended by the planning commission for
preliminary plat approval and approved the final plat. CSMA did not seek judicial
review of this decision.
Consistent with the board’s decisions, CSMA recorded a plat map that
included the Ranch Tract as Lot 30. The plat map included 15 numbered
restrictions plus an additional unnumbered provision.
Restriction 1 states, “If any private deed restrictions are in conflict with the
restrictions which appear on the face of this plat, the more restrictive provision
shall apply. However, the County shall not be party to any private restrictions.”
The unnumbered provision states, “For further restrictions, see the
Declarations of Covenants, Conditions, Easements, Liens, and Restrictions for
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Cape St. Mary Estates as recorded at Auditor’s File No. 117735, records of San
Juan County, Washington” (CC&Rs).
Section VIII of the CC&Rs describes ‘Miscellaneous Use Restrictions on
the Cape Saint Mary Ranch Tract.” This section describes various restriction
including a requirement that the Ranch Tract “is to be used primarily for
agricultural purposes.”
Cape St. Mary lot owners “amended the original covenants multiple
times.” For example, in 1985, they amended the covenants to state that the
Ranch Tract could be used for “agricultural or residential purposes.”2 But the
county never modified the final plat, which still references the original CC&Rs
recorded in 1981.
In early 2017, CSMA asked the San Juan County Department of
Community Development for a determination of signature requirements for an
application to vacate or subdivide the Ranch Tract. In April 2017, the director
determined that “[a]n application to vacate the ranch tract from the [Cape St.
Mary] plat is subject to SJCC 18.70.080(B) and RCW 58.17.212 [and] requires
an agreement signed by all parties subject to the covenants recorded in AF
117735.” She also concluded that “[a]n application to subdivide the Ranch Tract
is a plat alteration application [and under] SJCC 18.70.080(A) and RCW
2CSMA states, “Every current owner of Lots 1—29 took title under the
amended” covenants.
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No. 79333-1-I / 5
58.17.215 [and] must contain an agreement signed by all parties subject to the
covenants recorded in AF 117735.”
CSMA appealed and also asked the hearing examiner to “clarify that the
Ranch Tract can be further subdivided for agricultural or residential purposes.” In
November 2017, the hearing examiner affirmed the director’s decision. He found
that the director’s decision was “fully supported by substantial and credible
evidence [and] was not clearly erroneous.”
The hearing examiner found that the plat was unambiguous about
restrictions on the Ranch Tract. The hearing examiner looked at the “face of the
plat” and noted that it “expressly uses the term ‘restrictions” and described the
restriction “by a specific recording number, i.e. a specific writing, not a draft
subject to unilateral revision by the applicant.” Further, the hearing examiner
stated that the restriction “referenced on the face of the plat by the specific
recording number restricts use of the Ranch Tract to primarily agricultural uses.”
Based on this evidence, he concluded that “the Ranch Tract is included as part of
the plat, numbered as Lot 30 therein; and . . . ‘Restrictions’ applying to the plat,
including Lot 30, include provisions that mandate primarily agricultural instead of
residential use of Lot 30.”
The hearing examiner further found that even if the plat was ambiguous,
the evidence submitted by the parties established that the director’s interpretation
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was “credibly and convincingly” correct. The hearing examiner agreed with the
director that the Ranch Tract was added to reduce density impacts to Cape St.
Mary. He also concluded that the director’s determination was not clearly
erroneous and that Cape St. Mary “failed to exhaust [its] available legal
remedies” over the 35 years since the plat was recorded.
CSMA appealed to the superior court. The superior court affirmed the
hearing examiner and adopted his findings and conclusions. CSMA appeals.
ANALYSIS
CSMA offers three reasons why we should find the hearing examiner’s
decision incorrect. First, it claims that the CC&Rs do not create a plat provision
restricting the use of the Ranch Tract. Second, it contends that the hearing
examiner improperly considered extrinsic evidence. Finally, it concludes that
SJCC 18.70.080.B and RCW 58.17.215 do not apply to the facts of this case.
We disagree.
Standard of Review
The Land Use Petition Act3 governs review of land use decisions.4 Land
use decisions are “final determination[s] by a local jurisdiction’s body or officer
with the highest level of authority to make the determination,” like the hearing
examiner, and include “interpretative or declaratory decision[s] regarding the
3Ch. 36.70C RCW.
~ Lauer v. Pierce County, 173 Wn.2d 242, 252, 267 P.3d 988 (2011).
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No. 79333-1-I /7
application to a specific property of zoning or other ordinances or rules.”5 This
court’s review of these decisions is limited to review of the record before the
hearing examiner.6
This court reviews challenges to a legal determination de novo.7 When we
consider whether a local agency decision is an “erroneous interpretation of the
law,” we allow “for such deference as is due the construction of a law by a local
jurisdiction with expertise.”8 We will find a decision to be “clearly erroneous if,
‘although there is evidence to support it, the reviewing court on the record is left
with the definite and firm conviction that a mistake has been committed,”9 after
deferring “to factual determinations made by the highest forum below that
exercised fact-finding authority.”10
The P/at Unambiguously Incorporates the Agricultural Use Restriction
CSMA contends that the CC&R provision requiring that the Ranch Tract
“be used primarily for agricultural purposes” is not a county-imposed plat
restriction controlling the use of the Ranch Tract. We disagree.
~ RCW 36.70C.020(2)(b).
6Lauer, 173 Wn.2d at 253.
~ King County Dep’t of Dev. & Envtl. Servs. v. King County, 177 Wn.2d
636, 643, 305 P.3d 240 (2013).
8 RCW 36.70C.130(1)(b); RMG Worldwide LLC v. Pierce County, 2 Wn.
App. 2d 257, 269-70, 409 P.3d 1126 (2017).
~ Lauer, 173 Wn.2d at 253 (quoting Phoenix Dev., Inc. v. City of
Woodinville, 171 Wn.2d 820, 829, 256 P.3d 1150 (2011)).
10 Cingular Wireless LLC v. Thurston County, 131 Wn. App. 756, 768, 129
P.3d 300 (2006).
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No. 79333-1 -I I 8
When a court construes a plat, “the intention of the dedicator controls.” 11
Unless a plat is ambiguous, a court determines that intention ‘from all the marks
and lines appearing on the plat.” 12
The plat of Cape St. Mary Estates lists 15 numbered restrictions. The
following language appears immediately below the fifteenth restriction: “For
further restrictions, see the Declarations of Covenants, Conditions, Easements,
Liens, and Restrictions for Cape St. Mary Estates as recorded at Auditor’s File
No. 117735, records of San Juan County, Washington.” These CC&Rs include a
section with the heading “MISCELLANEOUS USE RESTRICTIONS ON THE
CAPE SAINT MARY RANCH TRACT.” The section begins with the statement
that “the Cape Saint Mary Ranch Tract is subject to the immediately following
covenants and restrictions.” The first restriction states that the “tract is to be
used primarily for agricultural purposes.”
The plat statement referring the reader to the CC&Rs recorded at
Auditor’s File No. 117735 for further restrictions incorporates by reference the
restrictions on the use of the Ranch Tract listed in the CC&Rs. The incorporated
restrictions are plat restrictions. The fact that the CC&Rs may also create
additional private covenants does not change this result. So the CC&R provision
~ Roeder Co. v. Burlington N., Inc., 105 Wn.2d 269, 273, 714 P.2d 1170
(1986).
12 Roeder, 105 Wn.2d at 273.
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No. 79333-1 -l I 9
restricting the Ranch Tract primarily to agricultural uses is a plat restriction. The
hearing examiner did not err in deciding that the plat unambiguously included the
Ranch Tract as Lot 30 and incorporated a restriction limiting it to primarily
agricultural use “instead of residential use.”
CSMA makes a series of arguments in challenging this conclusion. Most
are unsupported by legal authority, and we find none persuasive.
First, while CSMA agrees that the plat is unambiguous, it contends that
the reference to the CC&Rs did not incorporate additional plat restrictions.
Instead, it merely alerted potential purchasers to the existence of recorded
private covenants.
“The common law doctrine of incorporation by reference has general
usage in civil law and is recognized in Washington.”13 The doctrine applies to
government decisions when a public document “is adequately identified ‘so that
there is no uncertainty as to what was adopted.”14
13State v. Ferro, 64 Wn. App. 195, 198, 823 P.2d 526 (1992).
14 Scott PalDer Co. v. City of Anacortes, 90 Wn.2d 19, 31, 578 P.2d 1292
(1978) (quoting Friedman v. Goodman, 219 Ga. 152, 160, 132 S.E.2d 60 (1963));
see also Wash. State Maior League Baseball Stadium Pub. Facilities Dist. v.
Huber, Hunt & Nichols-Kiewit Constr. Co., 176 Wn.2d 502, 517, 296 P.3d 821
(2013) (stating that generally “[i]f the parties to a contract clearly and
unequivocally incorporate by reference into their contract some other document,
that document becomes part of their contract.”) (alteration in original) (quoting
Satomi Owners Ass’n v. Satomi, LLC, 167 Wn.2d 781, 801, 225 P.3d 213
(2009)).
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The plat explicitly identifies a specific document, recorded CC&Rs, as the
source of additional applicable restrictions. This language is not uncertain. It is
specific rather than general boilerplate language referring to external covenants
and restrictions. CSMA cites no legal authority prohibiting a plat from identifying
restrictions by reference in this manner. Its proposed interpretation ignores the
phrase “for further restrictions, see . .
CSMA suggests that all plat restrictions must appear on the face of a plat.
It relies on a statement in Jones v. Town of Hunts Point:15 “The inference that
the restriction was a term of approval is supported by the fact that it was printed
on the face of the plat.” But Jones does not consider whether a restriction may
be incorporated by reference, so it does not support CSMA’s position. CSMA
cites no other authority supporting its claim. “Where no authorities are cited in
support of a proposition, the court is not required to search out authorities, but
may assume that counsel, after diligent search, has found none.”16
Second, CSMA asserts that because the plat is unambiguous, the hearing
examiner should not have considered extrinsic evidence. This position
misrepresents the hearing examiner’s analysis. The hearing examiner explicitly
found that the plat was unambiguous and determined that based upon the plat
166 Wn. App. 452, 459, 272 P.3d 853 (2011).
15
State v. Logan, 102 Wn. App. 907, 911 n.1, 10 P.3d 504 (2000) (quoting
16
DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)).
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No. 79333-1 -l /11
language and the doctrine of adoption by reference, the agricultural use
restriction applied to the Ranch Tract. He then noted that if the plat was
ambiguous, a consideration of the extrinsic evidence presented by the parties
would produce the same result.
And Washington law permits an administrator or court to consider extrinsic
evidence to determine the intent or purpose of a restrictive covenant, even if it is
unambiguous on its face.17 CSMA cites no authority questioning the use of the
“context rule” in construing plats. This claim fails.
Third, CSMA contends that the hearing examiner improperly used
extrinsic evidence to ‘materially change the plain meaning of the CC&R Note.”
CSMA supports this claim by noting that “none of the restrictions” on the face of
the plat “affects the use of the Ranch Tract” except for number 14 that limits
activities near the well. And it suggests that because some of the restrictions
listed in the CC&Rs that apply to other lots are also described in the restrictions
on the face of the plat, the hearing examiner’s conclusion that the CC&Rs were
incorporated as plat restrictions is wrong. Finally, it claims that because “[t]he
plat contains no language prohibiting . . . the Ranch Tract from further
subdivision” and the plat “expressly contemplates further subdivision of lots,” the
17 Hollis v. Garwall, Inc., 137 Wn.2d 683, 696, 974 P.2d 836 (1999).
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No. 79333-1 -l / 12
hearing examiner’s conclusion that the Ranch Tract is restricted to ‘primarily
agricultural” use and from subdivision is also wrong.
As discussed above, a dedicator may incorporate restrictions by
reference. CSMA provides no logical explanation why including some
restrictions on the face of the plat that also appear in the CC&Rs prevents
incorporating by reference other restrictions not appearing on the face of the
plat.18
Instead, CSMA quotes the language of restriction 4 and a CC&R provision
out of context to assert that because some of the restrictions address
requirements for further subdivision, no restriction can be read to forbid further
subdivision of any lot in the plat. Restriction 4 states, “Lots in the subdivision
shall not be further subdivided ‘except in accordance with County and State laws
pertaining to replatting, provided such division is consistent with the Shoreline
Master Program and all other official land use regulations.”
The cited CC&R reference states, “Any application for subdivision of the
Cape St. Mary Ranch Tract shall be in accordance with the applicable state and
local requirements.”19
Logan, 102 Wn.App. at 911.
18
19 CSMA also asserts that the hearing examiner “ignored” this section. It
does not explain how it comes to this conclusion.
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The phrases “shall not be further subdivided except” and “[a]ny application
for subdivision” do not authorize or approve further subdivision. Instead, they
require that any further subdivision, if otherwise authorized, be consistent with
applicable law. So CSMA’s argument fails.
Fourth, CSMA contends that the plat “cannot reasonably be interpreted to
incorporate a density restriction” because “{n]othing in the plat” or the CC&Rs
“limits the density of the [Cape St. Mary] subdivision or precludes subdivision of
the Ranch Tract.” This argument does not directly address the issue before this
court: who must sign an application to vacate or subdivide. The hearing
examiner did not resolve the merits of a properly signed application. But
alteration or vacation of the Ranch Tract would violate the requirement that the
Ranch Tract, as a single lot, be used primarily for agricultural purposes.
Because this argument conflates the issue we must decide, we do not address it
further.
Fifth, CSMA asserts that the CC&Rs, as recorded, created private
restrictions. So, because the plat states that the county “shall not be party to any
private restrictions,” the county was not a party to the CC&Rs. But ROW
58.17.170(3)(b) provides that a subdivision is “governed by the terms of approval
of the final plat.” The face of the plat here incorporates by reference the CC&R
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restrictions on the use of Ranch Tract.2° So these restrictions are not private and
CSMA’s argument fails.
Finally, CSMA contends that Washington property rights will be thrown
into confusion if this court accepts the hearing examiner’s conclusions because
purchasers must look to the face of a plat to discover use restrictions. This is an
indirect attack on incorporation by reference, an issue we have resolved. So this
contention fails.
The Hearing Examiner Did Not Erroneously Apply SJCC 18.70.080
CSMA asserts that “even if. . . the Ranch Tract is restricted to a ‘primarily
agricultural’ use,” the hearing examiner’s determination that an application to
vacate and alter the plat to allow subdivision of the Ranch Tract would trigger
SJCC 18.70.080 (A) and (B) was clearly erroneous. First, it claims that an
application for a subdivision would not result in the violation of a covenant
because “[t]here is no provision in the CC&Rs barring subdivision of the Ranch
Tract, and there never has been.” Second, it claims that the plat restriction was
not a covenant. Finally, it claims, in the alternative, that the current owners of
lots 1—29 were never subject to the original covenant because none of them
owned their properties in 1981 nor did they ever own the Ranch Tract. We find
none of these arguments persuasive.
20 Jones, 166 Wn. App. at 459.
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SJCC 1 8.70.080(A)(1), governing subdivision alteration, provides:
If the subdivision is subject to restrictive covenants which were filed
at the time of the approval of the subdivision, and the application for
alteration would result in the violation of a covenant, the application
shall contain an agreement signed by all parties subject to the
covenants providing that the parties agree to terminate or alter the
relevant covenants to accomplish the purpose of the alteration of
the subdivision or portion thereof.[21]
SJCC I 8.70.080(B)(1), governing subdivision vacation, provides:
If the subdivision is subject to restrictive covenants which were filed
at the time of the approval of the subdivision, and the application for
vacation would result in the violation of a covenant, the application
shall contain an agreement signed by all parties subject to the
covenants providing that the parties agree to terminate or alter the
relevant covenants to accomplish the purpose of the vacation of the
subdivision or portion thereof.[22]
First, CSMA asserts that the restriction of the Ranch Tract to primarily
agriculture use does not prevent subdivision because it is not a density
restriction. But, as we have noted, vacation or subdivision of the Ranch Tract
would violate the requirement that this lot be used primarily for agricultural
purposes. And we are not reviewing a decision to deny a properly signed
application. Because vacating or subdividing the Ranch Tract would violate a
covenant that is a plat restriction, a request to do this triggers SJCC 1 8.70.080(A)
and (B). So the hearing examiner properly concluded that any proposal to
21 The language of this provision is essentially the same as RCW
58.17.215.
22 The language of this provision is essentially the same as RCW
58.17.212.
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No. 79333-1 -l /16
subdivide the Ranch Tract requires the signatures of all property owners in Cape
St. Mary, reflecting their approval.
Second, CSMA claims that the restriction is not a covenant. A covenant is
an “agreement or promise of two or more parties that something is done, will be
done, or will not be done.”23 Often these promises relate to real property and
“are created in conveyances or other instruments.”24 Restrictions on the face of
a plat can also be covenants.25
CSMA recorded the CC&Rs at the time of the original subdivision. The
CC&Rs were an agreement signed by the original owners of Cape St. Mary,
including the owners of the Ranch Tract. And the CC&Rs stated that the Ranch
Tract was subject to certain covenants and restrictions, including the limitation
that the tract be used “primarily for agricultural purposes.” CSMA does not point
to evidence or language supporting its assertion that this restriction was not a
covenant. Instead it cites to an unpublished opinion, Picnic Point Preservation
Committee v. Snohomish County,26 where the court stated that the restrictions on
the face of the plat considered in that case were not covenants. Apart from its
lack of precedential value, Picnic Point did not change the rule, as stated, for
23 Hollis, 137 Wn.2d at 690-91 (quoting 9 RICHARD R. POWELL, POWELL ON
REAL PROPERTY § 60.0l[2] at 60-5 (1998)).
24 Hollis, 137 Wn.2d at 690-91 (quoting POWELL at 60-5).
25 Hollis, 137 Wn.2d at 693.
26 No. 76645-7-I, slip op. at 7 (Wash. Ct. App. May 29, 2018)
(unpublished) http://www.courts.wa.gov/opinions/pdf/766457.pdf.
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No. 79333-1-1/17
example, in Hollis, that a restriction on the face of a plat may also be a
covenant.27
CSMA also contends that the CC&Rs have been amended and the
original CC&Rs do not apply to the current owners of lots 1—29. But the plat
incorporates a specific document, the original CC&Rs, and not any changes to
them. The plat has not been altered, so CSMA’s claim that latter amendments
had any effect on the plat restrictions fails. We also note that CSMA cites no
authority for the proposition that property owners can unilaterally modify
conditions of plat approval by amending the CC&Rs without submitting them to
the county for approval.28 The hearing examiner correctly concluded that the
“face of the plat expressly incorporates the version of CC&Rs recorded under
AFN [Auditor’s File No.] 117735, no other.”
Finally, CSMA claims that, because all current owners of lots 1—29
purchased their property after 1981, they are not subject to the original CC&Rs
and only took title subject to the amended version. But these owners took title
subject to all plat provisions and those have not changed. So CSMA’s argument
fa i Is.
We conclude that the hearing examiner did not err in concluding that any
vacation and alteration of the Ranch Tract would violate one of Cape St. Mary’s
27 Hollis, 137 Wn.2d at 693.
28 The hearing examiner noted this in his decision.
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No. 79333-1 -I / 18
covenants. So any application for this requires the signatures of all property
owners in the subdivision.
Attorney Fees
The respondent intervenors request attorney fees under RAP 18.1 and
RCW 4.84.370(1). This court may award attorney fees when applicable law
authorizes them.29 RCW 4.84.370(1) authorizes a court to award reasonable
attorney fees and costs
to the prevailing party or substantially prevailing party on appeal
before the court of appeals . of a decision by a county, city, or
. .
town to issue, condition, or deny a development permit involving a
site-specific rezone, zoning, plat, conditional use, variance,
shoreline permit, building permit, site plan, or similar land use
approval or decision. The court shall award and determine the
amount of reasonable attorneys’ fees and costs under this section
if:
(a) The prevailing party on appeal was the prevailing or
substantially prevailing party before the county. .and
.
(b) The prevailing party on appeal was the prevailing party or
substantially prevailing party in all prior judicial proceedings.
The respondent and respondent intervenors prevailed below, and they
prevail here. And “[t]he award of attorney fees is not limited to the judgment
29 RAP 18.1.
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No. 79333-1-I /19
debtor, but may be made to an intervening party who prevails.”30 So we award
fees to the respondent intervenors, provided they comply with RAP 18.1.
CONCLUSION
We affirm. CSMA fails to establish that the hearing examiner erred in
concluding that the plat restricted the Ranch Tract to a primarily agricultural use
and that this restriction was a condition of final plat approval. It also fails to
establish that the hearing examiner erred in finding that the restriction was a
covenant and that an application for subdivision would violate this covenant, thus
triggering SJCC 18.70.080.
WE CONCUR:
~°Fireman’s Fund Ins. Co. v. Nw. Paving & Constr. Co., 77 Wn. App. 474,
478, 891 P.2d 747 (1995) (citing Yakima Adjustment Serv., Inc. v. Durand, 28
Wn. App. 180, 622 P.2d 408 (1981)).
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