§ 16.2 - Appeal Remedies Available

• Jurisdiction: Washington

§ 16.2 APPEAL REMEDIES AVAILABLE

The section provides an overview of the various causes of action available for the appeal of land use decisions.

(1) The Land Use Petition Act

The Land Use Petition Act (LUPA), created under Laws of 1995, ch. 347, §§701-719, and codified at Chapter 36.70C RCW, creates a cause of action for the judicial review of the following three kinds of "land use decision":

(a)	An application for a project permit or other governmental approval required by law before real property may be improved developed, modified, sold, transferred, or used, but excluding applications for permits or approvals to use, vacate, or transfer streets, parks, and similar types of public property; excluding applications for legislative approvals such as area-wide rezones and annexations; and excluding applications for business licenses;
(b)	An interpretative or declaratory decision regarding the application to a specific property of zoning or other ordinances or rules regulating the improvement, development, modification maintenance, or use of real property; and
(c)	The enforcement by a local jurisdiction of ordinances regulating the improvement, development, modification, maintenance or use of real property. However, when a local jurisdiction is required by law to enforce the ordinances in a court of limited jurisdiction, a petition may not be brought under this chapter.

RCW 36.70C.020(2). Both by its terms and judicial construction, LUPA provides the exclusive remedy for the appeal of these categories of land use decisions. RCW 36.70C.030(1); Chelan Cnty. v. Nykreim, 146 Wn.2d 904, 917, 52 P.3d 1 (2002).

Although the term "project permit" within RCW 37.70.020(1)(a), above, is not defined by LUPA, the related Local Project Review statute, Chapter 36.70B RCW, does provide a definition:

"Project permit" or "project permit application" means any land use or environmental permit or license required from a local government for a project action, including but not limited to building permits, subdivisions, binding site plans, planned unit developments, conditional uses, shoreline substantial development permits, site plan review, permits or approvals required by critical area ordinances, site-specific rezones authorized by a comprehensive plan or subarea plan, but excluding the adoption or amendment of a comprehensive plan, subarea plan, or development regulations except as otherwise specifically included in this subsection.

RCW 36.70B.020(4). Thus, review under LUPA is available for both quasi-judicial actions (e.g., site-specific rezones and conditional use permits) and non-quasi-judicial decisions (e.g., building permits, boundary line adjustments, and other permits issued through an informal administrative process). See, e.g., Wenatchee Sportsmen Ass'n v. Chelan Cnty., 141 Wn.2d 169, 179, 4 P.3d 123 (2000) (a site-specific rezone is a form of project permit appealable under LUPA and not a form of development regulation appealable under the Growth Management Act (GMA), Chapter 36.70A RCW, to a Growth Management Hearings Board); Nykreim, 146 Wn.2d 904 (LUPA provides the exclusive remedy for judicial review of a boundary line adjustment decision); James v. Cnty. of Kitsap, 154 Wn.2d 547, 115 P.3d 286 (2005) (appeal from impact fee determination). However, a site specific-rezone adopted to implement a contemporaneously adopted amendment to a comprehensive plan would be regarded as an amendment to a development regulation appealable to the Growth Management Hearings Board, while a site-specific rezone adopted under an existing comprehensive plan would be appealable to superior court under LUPA. Kittitas Cnty. v. Kittitas Cnty. Conserv., 176 Wn. App. 38, 52, 308 P.3d 745 (2013).

In addition to project permits, LUPA provides for review of two other types of land use decisions: code interpretations and enforcement actions. The local project review statute, at RCW 36.70B.110(11), requires all jurisdictions planning under the Growth Management Act to adopt procedures for rendering interpretations as to the meaning and application of their adopted land use codes. RCW 36.70A.020(1)(b) subjects those interpretations to judicial appeal, conditioned of course upon the exhaustion of any internal administrative appeal remedies.

RCW 36.70A.020(1)(c) allows for judicial review of administrative enforcement decisions, except when a local jurisdiction's ordinances provide for the filing of code enforcement actions in courts of limited jurisdiction. Post v. City of Tacoma,167 Wn.2d 300, 311, 217 P.3d 1179 (2009). As with project permit and code enforcement decisions, any administrative remedies for code enforcement actions must be exhausted prior to review under LUPA.

By its terms, LUPA does not provide for

(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.

RCW 36.70C.030(1). As noted earlier, LUPA also does not provide for the review of approvals to use, vacate, or transfer streets, parks, or similar types of public property, for annexations, for business licenses, and for area-wide rezones. RCW 36.70C.020(1)(a).

For purposes of LUPA, a local jurisdiction means a county, city, or incorporated town. RCW 36.70C.020(2). Accordingly, LUPA does not provide for the review of decisions by other types of municipal corporations, such as port authorities and special purpose districts. But see Witt v. Port of Olympia,126 Wn. App. 752, 109 P.3d 489 (2005) (affirming dismissal of a land use petition brought to seek review of a SEPA threshold determination made by a port authority based on improper service of process, not lack of subject matter jurisdiction).

Although LUPA does not create a cause of action for damages, claims for damages may be joined in the same complaint with a land use petition. The court that hears the land use petition may, if appropriate, preside at a trial for damages or compensation. RCW 36.70C.030(1)(c); Sunderland Family Treatment Servs. v. City of Pasco, 107 Wn. App. 109, 117, 26 P.3d 955 (2001). Normally, the LUPA proceeding would be bifurcated and heard first. Prevailing on LUPA claims may be a predicate to claims for damages. See Mercer Island Citizens for Fair Process v. Tent City 4, 156 Wn. App. 393, 402-03, 232 P.3d 1163 (2010)...