§ 7.5 - Judicial Challenges to Exactions and Impact Fees
Jurisdiction | Washington |
§7.5 Judicial challengeS to exactions and impact fees
Procedural aspects of judicial challenges to exactions and impact fees are discussed below.
(1) Causes of action
The state's Land Use Petition Act (LUPA), Chapter 36.70C RCW, is the exclusive means of obtaining relief from local government "land use decisions." See RCW 36.70C.040; see also RCW 58.17.180 (decisions approving or disapproving any plat reviewable under LUPA). Thus, when development exactions and impact fees are imposed by local government as a condition of a land use permit or approval that constitutes a "land use decision," they must be challenged under LUPA. See, e.g., James v. Cnty. of Kitsap, 154 Wn.2d 574, 586, 115 P.3d 286 (2005) (en banc) (imposition of impact fees as a condition on the issuance of a building permit is a land use decision subject to review under LUPA); Isla Verde Int'l Holdings, Inc. v. City of Camas, 146 Wn.2d 740, 751, 49 P.3d 867 (2002) (review of a permit condition requiring 30 percent open space set-aside is under LUPA). LUPA bars review of a land use decision if a challenge to that decision is not brought within 21 days of its issuance. See e.g., James, 154 Wn.2d at 586 (holding that the imposition of impact fees as a condition on a building permit was unreviewable absent a timely challenge to the permit under LUPA).
Caveat: | A land use petition under LUPA must be filed and served in strict compliance with the statute's service requirements within 21 days of issuance of the land use decision or it is barred. RCW 36.70C.040(2), (3). |
Thus, for land use decisions subject to LUPA, failure to file and serve a land use petition within 21 days of issuance of the land use decision will bar any challenge to the legality of the exactions or fees imposed as a condition of the land use decision. Id. at 586, 590 ("[C]onditions imposed on the issuance of permits are inextricable from land use decisions and are subject to the procedural requirements of LUPA.").
Note: | The Washington Supreme Court, in James v. County of Kitsap, recognized one exception to this LUPA procedural requirement in RCW 82.02.070(4), which applies to impact fees imposed under authority of RCW 82.02.050-090 and "provides that applicants for building permits who desire immediate issuance of a permit but challenge the legality of the impact fee imposed as a condition of that permit may pay under protest, preserving the right to challenge those fees." 154 Wn.2d at 589 (court recognized procedures in RCW 82.02.070(4) as one of several "avenues to challenge the legality of the impact fees"). See §7.3(2), above. |
Other procedural requirements to perfect an appeal under LUPA are discussed in Volume 6, Chapter 16 (Land Use Appeals and Litigation—Land Use Petition Act), of this deskbook. The importance of complying with LUPA's filing and service requirements cannot be overstated, as these requirements are jurisdictional. See, e.g., Keep Watson Cutoff Rural v. Kittitas Cnty., 145 Wn. App. 31, 38, 184 P.3d 1278 (2008), review denied, 165 Wn.2d 1013 (2009).
Practice Tip: | LUPA also requires that a petitioner exhaust all administrative remedies, including administrative appeals of a decision on a land |
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