LUPA: Timely judicial review of land use decisions

Washington Court of Appeals Reports

HELLER v. PINE LAKE, 56722-5-I (Wash.App. 12-18-2006) VIC
HELLER, Petitioner, v. FRIENDS OF PINE LAKE, a Washington
nonprofit corporation; WALTER PEREYRA,
Appellants/Cross-Respondents, WILLIAM BUCHAN HOMES, INC., a
Washington corporation; and HOLLIE BEELER (aka HOLLIE
MARTINEZ), Respondents/Cross-Appellants CITY OF SAMMAMISH,
a Washington municipal corporation; SNOQUALMIE Additional
Respondents. No. 56722-5-I. The Court of Appeals of
Washington, Division One. Filed: December 18, 2006.
UNPUBLISHED OPINION.

Appeal from King County Superior Court. Docket No:
01-2-16316-7. Judgment or order under review. Date filed:
07/12/2005. Judge signing: Honorable Joan B Allison.

Counsel for Appellant/Cross-Respondent, John Richard
Aramburu, Attorney at Law, Seattle, WA, 98104-1138.

Counsel for Respondent/Cross-Appellant, Robert D. Johns,
Johns Monroe Mitsunaga PLLC, Bellevue, WA, 98004-6969.

Counsel for Other Parties, Bruce Laurence Disend, Kenyon
Disend Law Firm Issaquah, WA, 98027-3820.

Peter Thomas Connick, Law Office of Peter T. Connick,
Seattle, WA, 98104-2588.

ELLINGTON, J.

Appellate review of land use decisions is available only
through the procedures outlined in the Land Use Petition
Act (LUPA), chapter 36.70C RCW. Here, in ruling on a LUPA
appeal, the superior court remanded a preliminary plat
approval for further proceedings, and retained
jurisdiction. After the hearing examiner ruled on remand,
the parties failed to perfect a new LUPA petition. The
remanding court took review of the new ruling under its
retained jurisdiction. This procedure does not accord with
the statute, and we reverse the superior court’s exercise
of continuing jurisdiction, vacate the judgment, and
reinstate the hearing examiner’s ruling.

BACKGROUND

Landowners William Buchan Homes, Inc. and Holli Beeler
(collectively, Buchan) applied to divide three lots
comprising 35.42 acres into a 35 lot development for single
family homes, to be known as Chestnut Lane. In 1997, they
filed a preliminary plat application with the City of
Sammamish (the City), which was deemed complete in 2000.

The application was challenged by the appellants here,
which include neighboring landowner Walter Pereyra and the
citizens’ group Friends of Pine Lake (collectively, FOPL).
After a hearing that occupied 2days over a six month
period, the City’s hearing examiner issued a decision in
March 2001 approving the preliminary plat subject to
conditions, and affirming the City’s Mitigated
Determination of Non-Significance under the State
Environmental Policy Act (SEPA), chapter 43.21C RCW.

Among the examiner’s rulings was the conclusion that the
proposed development is not subject to the stringent
regulations of the SO-190 overlay, which is a special
district legislated by King County[fn1] designating areas
particularly susceptible to erosion hazards endangering
sensitive water bodies. The examiner opined, however, that
if the overlay did apply, the proposed drainage system would
not satisfy its requirements.

FOPL timely filed a petition under LUPA. On April 23, 2002,
the superior court ruled that SO-190 applies to the
project, and remanded with instructions to apply the SO-190
overlay and to reconsider SO-190’s effect on the SEPA
compliance. Anticipating changes to the plat proposal on
remand, the court declined to reach the other issues and
remanded them as well,[fn2] as more appropriately addressed
by the hearing examiner in the context of the revised
proposal. The order also stated: “Pursuant to RCW
36.70C.140 the Court retains jurisdiction over
implementation of this Order and further proceedings.”
Clerk’s Papers at 659.

Buchan submitted an identical plat proposal on remand. The
hearing examiner conducted hearings in July and August
2004. In a November 3, 2004 decision, the examiner applied
the SO-190 overlay to the Chestnut Lane plat, as directed
by the superior court, but in a significant departure from
his first ruling, found that Buchan’s proposal satisfies
the SO-190 requirements. The examiner imposed one additional
mitigation condition for SEPA compliance, and otherwise
left intact his prior rulings that the plat complies with
the Surface Water Design Manual and Sensitive Areas
ordinance, and designating tract N a “reserve” tract for
possible future development. After motions for
reconsideration, the examiner made minor amendments to the
decision in a December 3, 2004 ruling.

Both FOPL and Buchan filed new LUPA petitions within 21
days, as required by RCW 36.70C.040. Neither party timely
served the City, however, and both petitions were dismissed
with prejudice on February 14, 2005. See RCW 36.70C.040.
Two days later, FOPL filed a motion with the judge who
ordered the remand, requesting that the court exercise the
jurisdiction it retained in the remand order to review the
new ruling by the examiner. The court granted the motion,
ruling that no new LUPA petition was required because the
issues were adequately presented in the initial 2001 LUPA
petition. Ultimately, the court affirmed the hearing
examiner’s approval of the preliminary plat.

FOPL and Pereyra appeal affirmance of the preliminary plat
approval. Buchan cross-appeals the court’s exercise of
continuing jurisdiction. The cross-appeal is dispositive.

DISCUSSION

LUPA was enacted to provide timely judicial review of land
use decisions. RCW 36.70C.010; Habitat Watch v. Skagit
County, 155 Wn.2d 397, 406, 120 P.3d 56 (2005). With
limited exceptions not relevant here,[fn3] a LUPA petition
is “the exclusive means” to appeal any “land use decision,”
which is defined as “a final determination by a local
jurisdiction’s body or officer with the highest level of
authority to make the determination, including those with
authority to hear appeals, on . . . [a]n application for a
project permit or other governmental approval required by
law before real property may be improved, developed,
modified, sold, transferred, or used. . . .” RCW
36.70C.030(1) (emphasis added); James v. Kitsap County, 154
Wn.2d 574, 583, 115 P.3d 286 (2005); RCW 36.70C.020(1).

Judicial review must be initiated by filing a land use
petition within 21 days of issuance of a land use decision.
RCW 36.70C.040(3). Unless the petition is timely filed and
served, review is barred. RCW 36.70C.040(2). Courts give
strict enforcement to LUPA appeal procedures to honor
strong policies favoring finality in land use decisions and
security for landowners proceeding with property
development. Samuel’s Furniture, Inc. v. Dep’t. of Ecology,
147 Wn.2d 440, 458, 54 P.3d 1194 (2002); Chelan County v.
Nykreim, 146 Wn.2d 904, 931, 52 P.3d 1 (2002); Skamania
County v. Columbia River Gorge Comm’n, 144 Wn.2d 30, 49, 26
P.3d 241 (2001).

There is no dispute that the examiner’s rulings on the
Chestnut Lane plat application are land use decisions.
There is also no dispute that the hearing examiner fully
complied with the remand order. He conducted four days of
hearing, heard new evidence, applied the SO-190 overlay to
the plat, entered 3new findings of fact, reconsidered his
conclusions under SEPA, and imposed an additional
SEPA-based mitigating condition.

Thus we are not faced with a question of the court’s
supervision or implementation of its remand order. Rather,
the question is whether the 2002 remand order operated to
preserve the 2001 LUPA petition, such that after remand, no
new petition was required to initiate review.

In accepting review, the trial court relied upon its April
2002 remand order, which invoked RCW 36.70C.140: “Pursuant
to RCW 36.70C.140 the Court retains jurisdiction over
implementation of this Order and further proceedings.”
Clerk’s Papers at 659 (emphasis added). RCW 36.70C.140 is a
general provision affording reviewing courts broad authority
in administration of LUPA appeals:

The court may affirm or reverse the land use decision
under review or remand it for modification or further
proceedings. If the decision is remanded for modification
or further proceedings, the court may make such an order
as it finds necessary to preserve the interests of the
parties and the public, pending further proceedings or
action by the local jurisdiction.

It is plain that the legislature intended to provide the
reviewing court with means to address exigencies or to
maintain the status quo pending remand. A generous reading
might permit the reviewing court to hold a petition in
abeyance while the hearing examiner conducts further
proceedings on a particular issue. But the court remanded
all issues to the examiner.[fn4] Nothing in the statute
suggests the reviewing court retains jurisdiction over
proceedings after a wholesale remand.[fn5] “Just as an
appellate court loses jurisdiction upon remand to the trial
court, a superior court reviewing action of an
administrative agency loses jurisdiction upon remand to the
agency.” Pierce County Sheriff v. Civil Serv. Comm’n, 98
Wn.2d 690, 695, 658 P.2d 648 (1983) (citing Reeploeg v.
Jensen, 81 Wn.2d 541, 546, 50P.2d 99 (1972)).

FOPL points out that on remand, Buchan submitted an
identical application to that considered in the first
round, and thus contends no new petition was necessary
because both appeals presented the same issues. But LUPA
requires “[a] separate and concise statement of each error
alleged to have been committed” and “a concise statement of
facts upon which the petitioner relies to sustain the
statement of error.” RCW 36.70C.070(7) – (8). A
petition is not merely a procedural hurdle to preserve
issues for appeal, but is to be narrowly tailored to the
issues. and should highlight the particular assigned errors
to the reviewing court. See Samuel’s Furniture, 147 Wn.2d
at 454 – 55 (citing Tunstall v. Bergeson, 141 Wn.2d
201, 211, 5 P.3d 691 (2000) (statutes should be interpreted
in a manner that reconciles conflicting provisions and that
is consistent with its stated goals); City of Seattle v.
Fontanilla, 128 Wn.2d 492, 498, 909 P.2d 1294 (1996) (an act
must be construed as a whole)). FOPL’s second appeal
challenged the adequacy of the conditions imposed on
remand. Nothing in the LUPA petition could have addressed
that issue. The errors identified in the 2001 petition thus
did not present for review the particular errors claimed in
the 2004 decision.

In short, a new LUPA petition was necessary to confer
appellate jurisdiction upon the court, and the absence of
such a petition is fatal to FOPL’s challenge to the
examiner’s ruling. “Where statutes prescribe procedures for
the resolution of a particular type of dispute, [our]
courts have required substantial compliance or satisfaction
of the spirit of the procedural requirements before they
will exercise jurisdiction over the matter.” James v.
County of Kitsap, 154 Wn.2d 574, 588, 115 P.3d 286 (2005).

Our holding on this issue renders moot all other issues
except Buchan’s claim for attorney fees.

Attorney Fees. Under RCW 4.84.370, a party appealing a land
use decision who has prevailed in all prior judicial
proceedings is entitled to an award of attorney fees
incurred before the Court of Appeals. RCW 4.84.370(1).
Buchan was the substantially prevailing party before the
hearing examiner (preliminary plat approved). Buchan also
prevails here. Prekeges v. King County, 98 Wn. App. 275,
284 – 85, 990 P.2d 405 (1999). Buchan did not,
however, prevail in the original LUPA appeal, because the
court reversed the examiner’s decision that SO-190 did not
apply. This ruling led to the remand and to an award of
costs and fees to FOPL (which the court declined to set
aside after its second review in 2004). The fact that
Buchan prevailed in the second superior court appeal
(despite the court’s lack of jurisdiction to entertain it)
gives some force to Buchan’s request for fees, as does
Buchan’s ultimate success. But the statute is clear: fees
are awardable only to a party that substantially prevails
at every level of proceedings. Buchan did not prevail in
the only LUPA appeal properly filed, and at that point lost
its chance for fees.

We reverse the superior court and reinstate the examiner’s
ruling in full.

[fn1] KCC 21A.38.200. County code applies to the plat
because the application vested before the City’s
incorporation. The City took on review of the application
after incorporation.

[fn2] The additional remanded issues involved (1) compliance
with provisions of the 1998 Surface Water Design Manual,
and King County’s Sensitive Areas ordinance, and (2) the
legality of proposed “reserve” tracts N and O.

[fn3] RCW 36.70C.030(1) provides: “[T]his chapter does not
apply to: (a) Judicial review of: (i) Land use decisions
made by bodies that are not part of a local jurisdiction;
(ii) Land use decisions of a local jurisdiction that are
subject to review by a quasi-judicial body created by state
law, such as the shorelines hearings board, the
environmental and land use hearings board, or the growth
management hearings board; (b) Judicial review of
applications for a writ of mandamus or prohibition; or (c)
Claims provided by any law for monetary damages or
compensation. If one or more claims for damages or
compensation are set forth in the same complaint with a
land use petition brought under this chapter, the claims
are not subject to the procedures and standards, including
deadlines, provided in this chapter for review of the
petition. The judge who hears the land use petition may, if
appropriate, preside at a trial for damages or
compensation.”

[fn4] FOPL contends the court failed to act on those other
issues and so retained jurisdiction to consider them after
remand. FOPL ignores the language of the remand order.

[fn5] We are sensible of the trial judge’s effort to conduct
the proceedings with an eye to judicial economy. The record
is large, the issues are complex, and the judge was fully
familiar with the basic facts and the parties’ general
positions. To the extent the court intended to exercise
jurisdiction to hear any new petition, we applaud and
encourage that approach.