Durland v. San Juan Cnty.

• Decision Date: 01 July 2013
• Docket Number: No. 68453–1–I.,68453–1–I.
• Citation: 305 P.3d 246,175 Wash.App. 316
• Court: Washington Court of Appeals
• Parties: Michael DURLAND, Kathleen Fennell, and Deer Harbor Boatworks, Appellants, v. SAN JUAN COUNTY, Wes Heinmiller, and Alan Stameisen, Respondents.

175 Wash.App. 316
305 P.3d 246

Michael DURLAND, Kathleen Fennell, and Deer Harbor Boatworks, Appellants,
v.
SAN JUAN COUNTY, Wes Heinmiller, and Alan Stameisen, Respondents.

No. 68453–1–I.

Court of Appeals of Washington,
Division 1.

July 1, 2013.

[305 P.3d 247]

Claudia MacIntosh Newman, David Alan Bricklin, Bricklin & Newman, LLP, Seattle, WA, for Appellant.

Amy Vira, San Juan County Prosecutor's Office, Friday Harbor, WA, John Henry Wiegenstein, Elisha Sandra Smith, Heller Wiegenstein PLLC, Edmonds, WA, for Respondent.

DWYER, J.

[175 Wash.App. 318]¶ 1 Property owners Michael Durland, Kathleen Fennel, and Deer Harbor Boatworks (Durland) appeal from the superior court's dismissal of a land use petition filed pursuant to the Land Use Petition Act (LUPA), chapter 36.70C RCW. Pursuant to LUPA, a local government's decision is not subject to judicial review by the superior court unless it is a “land use decision.” Because Durland failed to obtain a “final determination by a local jurisdiction's body or officer with the highest level of authority to make the determination,” RCW 36.70C.020(2)(a), the grant of the building permit at issue did not [175 Wash.App. 319]constitute a “land use decision.” Thus, the superior court was without authority to review San Juan County's decision to grant the permit. Accordingly, we affirm.

I

¶ 2 On August 8, 2011, Wesley Heinmiller and Alan Stameisen (Heinmiller) applied to the San Juan County Department of Community Development and Planning for a building permit for property located in Deer Harbor on Orcas Island. The Department granted the building permit on November 1, 2011.

¶ 3 On December 19, 2011, Durland filed a LUPA petition in Skagit County Superior Court, challenging the grant of the building permit. Durland asserted that the building

[305 P.3d 248]

permit authorized construction in violation of county shoreline and zoning requirements. As requested relief, Durland sought a judicial determination that the building permit was “void.” On the same day, Durland filed an administrative appeal of the decision to grant the building permit with the San Juan County hearing examiner.

¶ 4 In superior court, both San Juan County and Heinmiller filed motions to dismiss Durland's LUPA action, San Juan County sought dismissal of Durland's petition pursuant to Civil Rule (CR) 12(b)(6), contending, among other things,¹ that Durland had not exhausted his administrative remedies and, thus, lacked standing pursuant to LUPA. Asserting the same contentions, Heinmiller sought dismissal[175 Wash.App. 320]of the petition pursuant to either CR 12(b)(1) or CR 12(b)(6).

¶ 5 Durland responded, admitting that he had not timely filed an administrative appeal of the building permit decision. Nevertheless, he asserted that his failure to exhaust administrative remedies should be excused because he had not known that the permit had been granted until after the limitation period for filing an administrative appeal had expired. Believing that the administrative appeal limitation period could be tolled, Durland additionally sought a stay of the proceedings in the superior court until his appeal to the hearing examiner had been resolved.

¶ 6 On February 3, 2012, the superior court granted Heinmiller's and San Juan County's CR 12(b) motions, dismissing with prejudice Durland's LUPA petition. The court additionally denied Durland's motion to stay the proceedings.

¶ 7 Durland appeals.

II

¶ 8 The resolution of this case turns on whether the legislature has authorized the superior court to review the decision in question. Specifically, we must determine whether San Juan County's decision to grant the building permit constituted a “land use decision” for purposes of LUPA, thereby rendering the matter proper for judicial review by the superior court. We hold that it did not.

¶ 9 We review de novo a superior court's ruling on a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to CR 12(b)(6). West v. Stahley, 155 Wash.App. 691, 696, 229 P.3d 943 (2010). The superior court properly dismisses a claim pursuant to CR 12(b)(6) “only if it appears beyond a reasonable doubt that no facts justifying recovery exist.” West, 155 Wash.App. at 696, 229 P.3d 943. Similarly, we review de novo rulings to dismiss for lack of jurisdiction pursuant to CR 12(b)(1). Nickum v. City of Bainbridge Island, 153 Wash.App. 366, 373–74, 223 P.3d 1172 (2009).

[175 Wash.App. 321]¶ 10 Absent specific, limited exceptions,² the Land Use Petition Act is “the exclusive means of judicial review of land use decisions.” RCW 36.70C.030(1). The stated purpose of the act is to provide “consistent, predictable, and timely judicial review.” RCW 36.70C.010. Our Supreme Court has “long recognized the strong public policy evidenced in LUPA, supporting administrative finality in land use decisions.” James v. Kitsap County, 154 Wash.2d 574, 589, 115 P.3d 286 (2005) (citing Chelan County v. Nykreim, 146 Wash.2d 904, 931–32, 52 P.3d 1 (2002)).

[305 P.3d 249]

¶ 11 LUPA invokes the appellate jurisdiction of the superior court; accordingly, “the superior court has only the jurisdiction as conferred by law.” Conom v. Snohomish County, 155 Wash.2d 154, 157, 118 P.3d 344 (2005). Pursuant to LUPA, the superior court, acting in its appellate capacity, may review only “land use decisions,” as defined by the act. SeeRCW 36.70C.010; 36.70C.030(1). As our Supreme Court has declared, “LUPA applies only to actions that fall within the statutory definition of a land use decision.” Post v. City of Tacoma, 167 Wash.2d 300, 309, 217 P.3d 1179 (2009).

¶ 12 Pursuant to LUPA, a “land use decision” is

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.020(2)(a). Here, the decision to issue the permit was not made by the “body or officer with the highest level of authority” to do so in San Juan County. Thus, the decision to issue the permit was not a “land use decision.” Accordingly, LUPA did not grant authority to the [175 Wash.App. 322]superior court to review San Juan County's decision to grant the permit.

¶ 13 Our decision in Ward v. Bd. of Skagit County Comm'rs, 86 Wash.App. 266, 936 P.2d 42 (1997), controls the disposition of this case. In Ward, the Skagit County hearing examiner issued a decision denying the Wards' applications for a special use permit and a variance. Ward, 86 Wash.App. at 268–69, 936 P.2d 42. The Wards thereafter filed an appeal of the hearing examiner's decision to the Board of County Commissioners. Ward, 86 Wash.App. at 269, 936 P.2d 42. The Board dismissed the appeal because it was untimely filed. Id. The Wards then filed a LUPA petition in superior court. Id. The superior court dismissed the petition. Id.

¶ 14 On appeal, we noted that the Skagit County Code categorized a hearing examiner's decision as a “final decision,” but that such a decision was nonetheless subject to appeal to the Board of County Commissioners. Ward, 86 Wash.App. at 271, 936 P.2d 42. Under the Skagit County Code, no body or official had authority to review the Board's determination. Id. Thus, we concluded that the Board was the body with the highest level of authority to make determinations on special use permits and variances in Skagit County. Id. Consequently, only a decision by the Board—not the hearing examiner—constituted a “land use decision” pursuant to RCW 36.70C.020(1).³Id. Because the Board did not issue a final determination regarding the applications, the Wards failed to obtain a “land use decision” pursuant to LUPA. Ward, 86 Wash.App. at 272, 936 P.2d 42.

¶ 15 In explaining our decision, we stated:

Under LUPA, a “land use decision” is “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, inter alia, “an application for a [175 Wash.App. 323]project permit or other governmental approval required by law before...