§ 21.2 Sources of the Right to Obtain Judicial Review of Administrative Action

• Jurisdiction: Washington

§21.2 SOURCES OF THE RIGHT TO OBTAIN JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

The first step in analyzing an appeal from an administrative action is to identify the basis in law for the appeal. If judicial review is authorized by a statute or ordinance, you must follow that law because using other procedures, such as writs, generally is not permitted. Bock v. Bd. of Pilotage Comm'rs,91 Wn.2d 94, 98, 586 P.2d 1173 (1978); see also Wells Fargo Bank, N.A. v. Dep't of Revenue, 166 Wn. App. 342, 358, 271 P.3d 268 (statutory judicial review procedures are a limitation on the state's general waiver of sovereign immunity), review denied, 175 Wn.2d 1009 (2012).

For example, in Habitat Watch v. Skagit County,155 Wn.2d 397, 407-08, 120 P.3d 56 (2005), the court quoted in part the explicit legislative directive in RCW 36.70C.030(1) that the Land Use Petition Act "replaces the writ of certiorari for appeal of land use decisions and shall be the exclusive means of judicial review of land use decisions." The court held that "once a party has had a chance to challenge a land use decision and exhaust all appropriate administrative remedies, a land use decision becomes unreviewable by the courts if not appealed to superior court within LUPA's specified timeline." Habitat Watch, 155 Wn.2d at 406-07; accord Mellish v. Frog Mountain Pet Care, 172 Wn.2d 208, 219, 257 P.3d 641 (2011).

A person who fails to follow the prescribed procedures for judicial review may not later use any other procedure to collaterally attack the agency decision. Twin Bridge Marine Park, L.L.C. v. Dep't of Ecology,162 Wn.2d 825, 845, 175 P.3d 1050 (2008) (Department of Ecology may not use its enforcement authority under the Shoreline Management Act to collaterally attack a county decision to reinstate building permits; department needed to file a land use petition to seek judicial review of that county decision); James v. Kitsap County,154 Wn.2d 574, 115 P.3d 286 (2005) (a person who failed to seek judicial review under LUPA when impact fees were imposed may not use a class action lawsuit to seek refunds of those fees); Lewis County v. Pub. Emp't Relations Comm'n,31 Wn. App. 853, 863, 644 P.2d 1231 (county could not collaterally attack a collective bargaining certification decision in a later unfair labor complaint against it; county needed to seek judicial review of the agency order certifying the collective bargaining under the state APA), review denied, 97 Wn.2d 1034 (1982).

Caveat: A party asserting a prior failure to invoke LUPA must properly claim that failure in a subsequent case. In City of Seattle v Crispin, 149 Wn.2d 896, 905, 71 P.3d 208 (2003), the city

...