Agenda - Planning Commission - 10/04/2012

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Zoning Bulletin July 10, 2012 ( Volume 6 No. 13 The Background/Facts: On August 14, 2009, the City of Dayton (the "City") issued a building permit to Thomas Goddard ("Goddard"). The build- ing permit allowed Goddard to erect a 36-foot by 30-foot pole building on his property. On September 2, 2009, the City planner advised Goddard that under the planner's interpretation of the allowed building height, the building height was to be measured to the top of the wall where the roof system attached. Goddard's neighbor, Laurie Ferguson ("Ferguson") questioned the building permit and challenged the planner's interpretation and asked that it be reviewed. On October 12, 2009, the city council, mayor, planning committee, and staff concluded that the building permit was valid. On July 21, 2010, the City's Planning Commission eventually affirmed the planner's interpretation of the building height measurement. Subsequently, on August 9, 2010, Ferguson filed a LUPA petition, chal- lenging the City's issuance of the building permit. The City asked the court to dismiss the action. The City argued that the building permit was the final land use decision that triggered the 21-day ap- peal period. LUPA requires a challenge to a land use decision be filed in superior court within 21 days of the "land use decision." The trial court agreed. It concluded that since the August 14, 2009 building permit was the final land use decision, Ferguson's August 9, 2010 LUPA ap- peal was untimely. Ferguson appealed. DECISION: Judgment of superior court reversed, and matter remanded. The Court of Appeals of Washington, Division 3, held that, "[t]he August building permit was not a 'land use decision' because it was not a final determination." The "land use decision" appealable under LUPA occurred when the administrative appeals process was exhausted —which was when the City Planning Commission issued its determination on Goddard's building permit (on July 21, 2010). The court reached its conclusion by interpreting the definition of "land use decision" under LUPA. A "land use decision"' is defined as: "a final determi- nation by a local jurisdiction's body or officer with the highest level of author- ity to make the determination, including those with authority to hear appeals, on... [a]n application for a project permit." (RCW 36.70C.020(2).) A "final determination," said the court, "is one that ends an action between the parties." r( Since a petitioner only has standing to bring a LUPA action once he/she has exhausted his/her administrative remedies, a "final determination" comes at the end of the administrative appeals process, concluded the court. Thus, here, the court found that thebuilding permit was a "land use deci- sion," but that it was not a "land use decision" under LUPA until final deter- mination by the City Planning Commission, which was "the entity with the last word on the permit." Thus the land use decision did not occur on August 14, 2009 when the building permit issued; rather, it occurred on July 21, 2010, when the Planning Commission reached its conclusion on the building permit. See also: Samuel's Furniture, Inc. v. State, Dept. of Ecology, 147 Wash. 2d 440, 452, 54 P.3d 1194 (2002). ©2012 Thomson Reuters 3