BSRE Point Wells, LP v. Snohomish Cnty.

• Decision Date: 27 December 2022
• Docket Number: 83820-2-I
• Parties: BSRE POINT WELLS, LP, Respondent/Cross-Appellant, v. SNOHOMISH COUNTY, Appellant/Cross-Respondent.
• Court: Washington Court of Appeals

BSRE POINT WELLS, LP, Respondent/Cross-Appellant,
v.
SNOHOMISH COUNTY, Appellant/Cross-Respondent.

No. 83820-2-I

Court of Appeals of Washington, Division 1

December 27, 2022

UNPUBLISHED OPINION

Díaz, J.

BSRE Point Wells, LP ("BSRE") applied to develop an "urban center" on a former large industrial site in Snohomish County beginning in 2011. The Snohomish County Planning and Development Services Department ("Planning Department"), the Snohomish County Hearing Examiner ("Hearing Examiner"), and the Snohomish County Council ("Council"; together, the "County") all concluded that "substantial conflicts" existed between BSRE's application and the relevant portions of the Snohomish County Code (Chapter 30.34A; the "Code" or "SCC"), and denied each such application, most recently in April 2021 (the "Council's Decision" or the "Decision"). BSRE filed the instant (second) Land Use Petition Act ("LUPA") petition ("Petition"), pursuant to RCW 36.70C, challenging the Decision in King County Superior Court. The superior court made no ruling on the merits on any aspect of the Council's Decision and, in the court's order in February 2022

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("Order"), remanded the case to the County for a second time, ordering the Hearing Examiner to consider BSRE's application in "good faith." Snohomish County and BSRE each appealed.

Both parties ask this court to consider the merits of the Council's Decision. Specifically, the County asks this court to reverse the superior court's Order because it made no ruling on the merits at all and, after considering the merits, to affirm the Decision denying the application. BSRE seeks reversal of the superior court's Order because it did not find on the merits that BSRE satisfied the Code, and also seeks reversal because it failed to find that SCC 30.61.220 violates state law.

We conclude that the superior court erred in not ruling on the merits and that BSRE did not carry its burden in establishing that each of the five alleged substantial conflicts were an erroneous interpretation of the County's own Code. We thus reverse and remand the case to dismiss BSRE's LUPA Petition.

I. FACTS

In 2011, BSRE applied to develop an area of land in Snohomish County known as Point Wells into an "urban center" with residential and commercial buildings.^[1] In 2013, the County's Planning Department notified BSRE of dozens of conflicts between its application and the Code. In April 2017, BSRE resubmitted its application. In October 2017, the Planning Department again notified BSRE that it failed to resolve the conflicts

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with the code. BSRE thereafter requested three extensions of a new application deadline, which were granted, and a fourth extension, which the County denied. On April 17, 2018, the County's Planning Department recommended that BSRE's application be denied based on eight "substantial conflicts" with the Code. The Hearing Examiner for the County held its (first) hearing on BSRE's application in May 2018. The Hearing Examiner denied the application based on five remaining substantial conflicts. BSRE appealed to the County Council, which affirmed the Hearing Examiner's decision.

BSRE appealed for the first time to King County Superior Court under LUPA, seeking reversal of the denial of its application for procedural reasons, and a ruling on the merits. In June 2019, the superior court reversed the Hearing Examiner's dismissal of BSRE's first application, not on the merits, but because it found that BSRE was entitled to reactivate its application "one-time," if it submitted its revised materials within six months of the court's decision.

BSRE appealed for the first time to this court ("First LUPA") and contemporaneously submitted its revised application materials by the six-month deadline. This court dismissed the First LUPA because it was not ripe, finding that, while the issues were mainly legal and no further factual development was needed, BSRE had not exhausted its administrative remedies as it had reactivated its application, and the application and review process was not complete. BSRE Point Wells, LP, No. 80377-8-I, slip op. at 5.

BSRE submitted the instant application in December of 2019. In May 2020, the Planning Department recommended that the Hearing Examiner deny BSRE's application

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again. In November 2020, the Hearing Examiner conducted a second six-day hearing, including witness and public testimony. On January 29, 2021, the Hearing Examiner denied the application again, citing five substantial conflicts with the Code. BSRE appealed to the Council. The Council affirmed in April 2021. BSRE appealed to the King County Superior Court, filing a second LUPA petition (again, "Petition"). The City of Shoreline ("Shoreline") also intervened.

On February 22, 2022, the superior court entered its Order Remanding with Directives granting the Petition (again, the "Order"), after hearings on November 5, 2021, and December 10, 2021. The superior court found ". . . a lack of good faith in the processing and review of the application upon reactivation and thus, a lack of compliance with Judge McHale's Order on Remand." The superior court, sua sponte, imposed a 12-month timeline on remand, giving BSRE six months to submit its initial revisions to its applications, four months for the County to provide a comment letter, and two months for BSRE to submit any further revisions, without identifying any particular substantive issue BSRE or the County should focus on. The superior court reiterated its "good faith" requirement, ordering that "[t]he parties shall act in good faith and shall engage in meaningful and substantive discussions about the applications and their revisions throughout the review process." The superior court otherwise did not consider the merits of the five conflicts with the Code identified by the Hearing Examiner.

On March 18, 2022, the County filed its present Notice of Appeal. On March 25, 2022, BSRE filed its Notice of Cross Appeal.

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II. ANALYSIS

A. Ripeness

First, we consider whether the instant Petition based on the Decision is now ripe. A claim is ripe for appellate review if the issues raised are primarily legal, do not require further factual development, and the challenged action is final. State v. Cates, 183 Wn.2d 531, 534, 354 P.3d 832 (2015) (quoting State v. Sanchez Valencia, 169 Wn.2d 782, 786, 239 P.3d 1059 (2010)). Courts also consider the hardship incurred by the appellant if the court refuses to review the claim. As mentioned above, this court previously concluded that two requirements of the ripeness doctrine were satisfied by the time of the First LUPA petition: the issues were mainly legal and no further factual development was needed. BSRE Point Wells, LP, No. 80377-8-I, slip op. at 6. These two conclusions apply to the present Decision, which returns with no material further legal or factual development, other than the unfortunate passage of time.

The only question then is whether the appeal process is "final." Previously, this court dismissed the appeal because BSRE's revised application was pending before the County. Since then, there is no evidence in the record that BSRE has refiled its application. Therefore, there is no pending administrative review to exhaust. Importantly, BSRE and the County both agree that the appeal is ripe for review and explicitly ask this court to rule on the merits of the Decision. Additionally, the County and BSRE concur that they would suffer hardship if this court does not rule on the merits, as there is no shared understanding of the applicable substantive standards, and further process is a drain on the time and resources of the parties. Br. of Appellant at 20; Br. of Resp't at 16;

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Cates, 183 Wn.2d at 534 (courts should consider whether the parties will incur hardship if the court refuses to review the claim) (citations omitted). Further, LUPA contemplates such direct review, even if the parties did not, for reasons unknown, avail themselves of this process. See RCW 36.70C.150^[2] and RAP 6.4.^[3] Finally, sending the Decision back to the County for a (minimum) one-year delay would not be consistent with legislative intent for timely...