Durland v. San Juan Cnty.

Decision Date11 December 2014
Docket NumberNos. 89293–8,89745–0.,s. 89293–8
Citation340 P.3d 191,182 Wash.2d 55
CourtWashington Supreme Court
PartiesMichael DURLAND, Kathleen Fennell, and Deer Harbor Boatworks, Petitioners, v. SAN JUAN COUNTY, Wes Heinmiller, and Alan Stameisen, Respondents.

David Alan Bricklin, Claudia MacIntosh Newman, Bricklin & Newman, LLP, Bryan James Telegin, Attorney at Law, Seattle, WA, for Petitioner.

Amy Vira, San Juan County Prosecutor's Office, William Jay Weissinger, Law Ofc of William J.Weissinger PS, Mimi M. Wagner, Attorney at Law, Friday Harbor, WA, Mark Robert Johnsen, Karr Tuttle Campbell, Seattle, WA, John Henry Wiegenstein, Elisha Sandra Smith, Heller Wiegenstein PLLC, Edmonds, WA, for Respondent.

Julie Sund Nichols, Whitehouse & Nichols LLP, Shelton, WA, for Amicus Curiae on behalf of Building Industry Association.

Julie Sund Nichols, Whitehouse & Nichols LLP, Shelton, WA, for Amicus Curiae on behalf of Association of Washington Business.



¶ 1 In this consolidated case, petitioners brought an untimely challenge to San Juan County's issuance of a garage-addition building permit. Petitioners did not receive notice of the permit application and grant until the administrative appeals period had expired. Thus, petitioners claim that our court's interpretation of the Land Use Petition Act (LUPA), chapter 36.70C RCW, required them to do the impossible: to appeal a decision without actual or constructive notice of it. While this result may seem harsh and unfair, to grant relief on these facts would be contrary to the statutory scheme enacted by the legislature as well as our prior holdings. Indeed, we have acknowledged a strong public policy supporting administrative deadlines and have further explained that [I]eaving land use decisions open to reconsideration long after the decisions are finalized places property owners in a precarious position and undermines the Legislature's intent to provide expedited appeal procedures in a consistent, predictable and timely manner.” Chelan County v. Nykreim, 146 Wash.2d 904, 933, 52 P.3d 1 (2002). This court has faced numerous challenges to statutory time limits for appealing land use decisions and has repeatedly concluded that the rules must provide certainty, predictability, and finality for land owners and the government. Petitioners offer us no mechanism that would permit them to assert their claim under LUPA's statutory framework.1

¶ 2 In Durland 1 Michael Durland skipped San Juan County's administrative appeals process and filed a land use petition directly in superior court to challenge the issuance of a building permit to his neighbor. The court dismissed the petition, finding that there was no “land use decision” under LUPA. The Court of Appeals agreed,2 and we affirm. We hold that petitioners are required to exhaust available administrative remedies in order to obtain a land use decision. We also hold that there are no equitable exceptions to the exhaustion requirement.3 The plain language of LUPA as set forth by the legislature and as interpreted by our court compels this result.

¶ 3 In Durland 2 Michael Durland filed an untimely appeal with the San Juan County hearing examiner, who dismissed the appeal. Durland then filed a complaint and land use petition in superior court challenging the dismissal as a violation of his constitutional right to due process. U.S. Const. amend. XIV, § 1, Const. art. I, § 3. We hold that there is no violation of due process because Durland has no constitutionally protected property interest in the denial of his neighbor's permit.

¶ 4 Last, we affirm the award of attorney fees to Heinmiller in both cases and award Heinmiller fees for this appeal. Under the plain language of RCW 4.84.370(1), a private party who “prevail[s] or “substantially prevail[s] may obtain fees. The statute does not limit fee awards to parties who prevail on the merits.


¶ 5 On August 8, 2011, respondents Wesley Heinmiller and Alan Stameisen (collectively Heinmiller) applied to San Juan County for a building permit to add a second story to their garage. On November 1, 2011, San Juan County granted the permit. Petitioners Michael Durland, Kathleen Fennel, and Deer Harbor Boatworks (collectively Durland) are neighboring property owners who claim that the garage-addition permit adversely impacts their views of the water and diminishes their ability to enjoy the shoreline.

¶ 6 The San Juan County Code (SJCC) does not require public notice when issuing building permits, and petitioners were unaware that the permit had been issued until December 5, 2011, 34 days after the permit was issued.4 By that time, the deadline for filing an administrative appeal under the county code had passed. SJCC 18.80.140(D)(1) (administrative appeal of building permit must be filed within 21 days of issuance of permit). Nonetheless, on December 19, 2011, Durland filed two actions, a LUPA petition in Skagit County Superior Court (Durland 1) and an administrative appeal to the San Juan County hearing examiner (Durland 2).

¶ 7 In Durland 1, Durland challenged the validity of the building permit; he asserted that the permit authorized construction in violation of county shoreline and zoning requirements, and he sought a judicial determination that the building permit was void. The superior court dismissed the LUPA petition for several reasons: Durland had not exhausted his administrative remedies, the petition was not filed within LUPAs 21–day appeal period, and there was no land use decision because Durland had not timely appealed to the hearing examiner. The Court of Appeals affirmed. Durland v. San Juan County, 175 Wash.App. 316, 305 P.3d 246, review granted, 179 Wash.2d 1001, 315 P.3d 530 (2013).

¶ 8 In Durland 2, Durland also sought reversal of the permit in an administrative appeal to the San Juan County hearing examiner. The hearing examiner dismissed the appeal as untimely. Durland then filed a 42 U.S.C. § 1983 claim with an alternative LUPA claim in San Juan Superior Court to challenge the order of dismissal and the SJCC on grounds that both violated his constitutional right to due process. Durland argued that the SJCC violated his due process rights because it does not require the county to provide notice of permitting decisions so that neighboring property owners can timely challenge them. The superior court summarily dismissed the LUPA petition and granted respondents' motion for summary judgment on the § 1983 claim. The Court of Appeals affirmed, holding that Durland does not possess a constitutionally protected property interest upon which a due process claim can be based. Durland v. San Juan County, noted at 177 Wash.App. 1002, 2013 WL 5503681, at *1.5 The Court of Appeals in both Durland 1 and Durland 2 awarded Heinmiller attorney fees under RCW 4.84.370. We granted review of both Durland 1 and Durland 2 and consolidated the two cases. Durland, 179 Wash.2d 1001, 315 P.3d 530.

I. In Durland 1, the superior court properly dismissed the LUPA petition

¶ 9 In Durland 1, the superior court correctly dismissed the land use petition because Durland did not appeal to the hearing examiner prior to filing his petition. Durland's failure to seek review with the hearing examiner is doubly fatal to his LUPA suit: it meant that no final land use decision had been made, thus depriving the superior court of appellate jurisdiction; and it deprived Durland of standing because he had failed to exhaust his administrative remedies. Durland argues that he was not required to appeal to the hearing examiner because he had no notice of the permit until after his appeal window had closed. We have rejected this argument.

A. Standard of review

¶ 10 LUPA governs judicial review of land use decisions. RCW 36.70C.030. Under LUPA, a court may grant relief from a land use decision only if the party seeking relief has shown:

(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.

RCW 36.70C.130(1). This court reviews rulings under RCW 36.70C.130 de novo. Knight v. City of Yelm, 173 Wash.2d 325, 336, 267 P.3d 973 (2011).

B. There was no land use decision in Durland 1

¶ 11 The superior court did not have jurisdiction to hear this appeal because there was no land use decision. The legislature enacted LUPA in 1995 to replace the writ of certiorari as the exclusive means of appealing a local land use decision. RCW 36.70C.030. LUPA's purpose is to ensure uniform and expedited judicial review of land use decisions. RCW 36.70C.010.

¶ 12 A superior court hearing a LUPA petition acts in an appellate capacity and has only the jurisdiction conferred by law. Knight, 173 Wash.2d at 337, 267 P.3d 973 (citing Conom v. Snohomish County, 155 Wash.2d 154, 157, 118 P.3d 344 (2005) ). Under LUPA, the superior court review is limited to actions defined by LUPA as land use decisions. RCW 36.70C.010, .040(1); Post v. City of Tacoma, 167 Wash.2d 300, 309, 217 P.3d 1179 (2009). A “land use decision” 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) [a]n application for a project permit....

RCW 36.70C.020(2).

¶ 13 The issuance of a permit may qualify as a final land use decision if there is not a way to...

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1 cases
  • In re Marriage of Cooney
    • United States
    • Washington Court of Appeals
    • November 27, 2023
    ... ... or recognized ground of equity." Durland v. San Juan ... County , 182 Wn.2d 55, 76, 340 P.3d 191 (2014). If ... attorney fees ... ...

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