Agenda - Planning Commission - 03/07/2019

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January 25, 2019 I Volume 13 I Issue 2 Zoning Bulletin xhaustion of dministrative emedies/Jurisdiction ity argues developer's Land Use Petition Act action should be dismissed for failure t• exhaust administrative remedies Developer maintains it did exhaust administrative remedies before bringing judicial action Citation: Aho Construction I, Inc. v. City of Moxee, 430 P.3d 1131(Wash. Ct. App. Div. 3 2018) WASHINGTON (12/06/18)—This case addressed the issue of whether an applicant seeking rezone and subdivision of property took steps necessary to exhaust administrative remedies as required before it could bring a Land Use Petition Act action in court. More ac- curately, as described by the court, this case addressed the issue of "how loud, listing, learned, legally lucid, and longwinded a party's presentation of an issue or legal argument must be before an administrative agency in order to exhaust remedies." The Background/Facts: Aho Construction I, Inc. ("Aho") owned a 22-acre tract of property (the "Prop- erty") in an R-1 single-family zone in the City of Moxee (the "City"). Aho sought to rezone and subdivide the Property, Aho submitted applications to the City to rezone and subdivide the Property. Pursuant to Wash- ington's State Environmental Policy Act of 1971, chapter 43.21C RCW ("SEPA"), Aho also filed an environmental checklist with the City. It also submitted to the City a preliminary plat for approval. Of impor- tance here, Aho's proposed plat map did not extend an existing City street, Chelan Avenue, through the pro- posed subdivision. The City conducted a review of the preliminary plat application under SEPA and issued a preliminary miti- gated determination of nonsignificance ("MDNS"). The preliminary MDNS was issued for "purposes of ad- ditional comments from the public, government enti- ties, and Aho." The preliminary MDNS required Aho implement various mitigation measures, including extending Chelan Avenue across the entirety of the subdivision. Aho requested from the City relief from the mitiga- tion requirement of extending Chelan Avenue. Along with that request, Aho forwarded to the City a report by Aho's engineer, which disputed the need to extend Chelan Avenue. Aho's general counsel also wrote City officials, complaining about the lack of justification for extending Chelan Avenue across the plat. Despite those requests, when the City issued its final MDNS, it retained the condition to the subdivision plat approval that Aho extend Chelan Avenue across the entire plant. Aho appealed to a City hearing examiner the City's final SEPA MDNS, as well as the condition of the grant of the rezone and the subdivision plat approval on extending Chelan Avenue. Before the hearing examiner, Aho representatives argued about the "propriety of conditioning approval of the project on the extension of Chelan Avenue." Eventually, the hearing examiner reversed the City's MDNS condition of extension of Chelan Avenue in that the avenue lacked an environmental impact. However, the hearing examiner upheld the condition of extension of Chelan Avenue on other grounds when reviewing the rezone application approval and the preliminary plat approval. Neither Aho nor the City appealed the hearing exam- iner's SEPA determination. Pursuant to the City's Mu- nicipal Code (the "Code"), the City Council automati- cally conducted a closed record hearing to consider the hearing examiner's recommendations with regard to the conditions imposed on the rezone application and the preliminary plat. Aho's representatives appeared and made objections at that City. Council hearing. The City Council voted to approve the hearing examiner's recommendation to require extension of Chelan Avenue as part of the rezone application and the preliminary plat application approval. Subsequently, Aho filed suit against the City in superior court. Among other things, Aho brought a peti- tion under Washington's Land Use Petition Act ("LUPA") (RCW chapter 36.70C). In its LUPA claim, Aho contended that the City "adopted erroneous inter- pretations of the law and violated Aho's constitutional right against the taking of its property without just compensation." Aho also argued that the requirement of extending Chelan Avenue across the proposed subdivi- sion constituted "an unreasonable exaction that lacks proportionality to the impact of [the] proposed [subdivi- sion] and that fails an essential nexus between a legiti- mate state interest and the exaction imposed." The City filed a motion to dismiss, asking the court to dismiss Aho's causes of action based on an argument that Aho failed to exhaust its administrative remedies before bringing the judicial action. More specifically, the City argued that Aho had failed to raise before the City Council the arguments that it was now making in court. 6 © 2019 Thomson Reuters