Agenda - Planning Commission - 01/03/2019

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November 25, 2018 I Volume 12 I Issue 22 Zoning Bulletin DECISION: Judgment of Court of Common of Appeals affirmed. The Supreme Court of Washington agreed with the County and lower courts and rejected the Petitioners' arguments. The court held that the Petitioners' complaint was properly dismissed because the challenged as- sessment of permit fees constituted "land use decisions" under LUPA, and the Petitioners failed to challenge those permit fees as specified under LUPA—by contesting the fee amounts at the time of payment or pursue administrative remedies, or by filing land use petitions within 21 days of the assessment of the fees in question. The Petitioners had argued that the assessment of permit fees here did not constitute a "land use decision" —and thus was not under the exclusive juris- diction of LUPA. Rather, Petitioners argued that the fees here were "a pre- requisite" to a land use decision. In other words, they had argued that the "decision to impose that fee [was] not, itself, a 'land use decision' [because] nothing about the fee and the process for determining it affect[ed] the use of land." The County, on the other hand, pointed out that "[t]he land use decision 'on an application' includes a constellation of smaller decisions that precedes approval or disapproval of the land use request," and that "[t]hese decisions are part -and -parcel of the permit decision and inextricably linked to the permit itself." The Supreme Court of Washington agreed with the County. In doing so, the court first looked to the definition of "land use decision," finding it included a "final determination" on an "application for a project permit . . ." The court also found that, under the County Code, project permit applica- tions "must" include the applicable permit fees. The court found that because the fee was a "mandatory requirement" for a completed project permit, it was "inextricably tied to the permitting process," and thus part of the land use decision itself, challengeable only under LUPA. The court also addressed the Petitioners' alternative argument that even if LUPA governed, their claims fit under the "monetary damages or compensa- tion" exception under LUPA because the assessed fees exceeded municipal expenses related to processing the permits and inspecting and reviewing plans, in violation of RCW 82.02.020 as an unauthorized tax. Under that LUPA exception, "[c]laims provided by any law for monetary damages or compensation" that are "set forth in the same complaint with a land use peti- tion" under LUPA are "not subject to the procedures and standards, includ- ing deadlines, provided [in LUPA] for review of the petition." The court disagreed with this argument, noting that it had, in a prior case, already rejected the applicability of RCW 82.02.020 to the "monetary dam- ages" exception in LUPA in the wake of its enactment. See also: James v. County of Kitsap, 154 Wash. 2d 574, 115 P.3d 286 (2005). See also: Home Builders Ass'n of Kitsap County v. City of Bainbridge Island, 137 Wash. App. 338, 153 P.3d 231 (Div. 2 2007). Case Note: 4 © 2018 Thomson Reuters