Agenda - Planning Commission - 03/07/2019

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Zoning Bulletin RCW 36.70C.060 addresses standing under LUPA and incorporates an exhaustion of remedies requirement for standing. The statute declares that standing to bring a land use petition under LUPA is limited to petitioners who have exhausted their administrative remedies "to the extent required by law." Thus, under LUPA, a superior court lacks jurisdiction over a LUPA petition if the petitioner has failed to exhaust his or her administra- tive remedies. Here, the superior court agreed with the City that Aho had failed to exhaust its administrative remedies, neces- sitating dismissal of its land use petition under LUPA. Aho appealed. DECISION: Judgment of superior court reversed, and matter remanded. The Court of Appeals of Washington, Division 3, held that Aho took the steps necessary to exhaust its administrative remedies and advance its position before the City Council such that it could bring a LUPA action against the City in superior court. In so holding, the court noted that Washington's Administrative Procedure Act (RCW 34.05.554(1)) also requires exhaustion of remedies before challenging agency action in superior court. The court noted that the "same exhaustion principles" are applied "regardless of whether the exhaustion requirement arises from the Administrative Procedure Act, LUPA, or some other source." The court further explained that in order for a litigant (such as Aho, here) to establish exhaustion of administrative remedies, the litigant must first raise the appropriate issues before the agency. Thus, here, the court had to determine whether Aho apprised the City Council of the issues Aho then sought to litigate in its LUPA action. The court explained that "[i]n order for an issue to be properly raised before an administrative agency, there must be more than simply a hint or a slight reference to the issue in the record." The court thus concluded that "the Washington test for exhaustion of remedies im- poses a minimal burden on the challenger of the admin- istrative agency action," that cannot be mathematically measured. Still, the court listed factors "germane to determining sufficiency of exhaustion," which include (but are not limited to): the number of sentences devoted to an issue in any writ- ten brief given to the administrative agency; the amount of language devoted to the argument compared to the amount of language devoted to other arguments; the clarity of the presentation before the administrative agency; citations to statutes and case law and the ac- curacy of the citations; if the party asserts numerous is- sues in a brief, whether the issue on appeal was separated in the brief or introduced with a heading; and whether the challenger's presentation to the administrative agency applied facts to the law. Analyzing those factors to the evidence here, the court found that Aho "repeatedly asserted to the [C]ity January 25, 2019 I Volume 13 I Issue 2 that the [C]ity's demand for an extension of Chelan Av- enue lacked proportionality and a nexus to a public interest and constituted a taking of property without just compensation." The court noted that Aho did this in its submission to the City of: (a) its engineer's report disputing the need to extend Chelan Avenue; (b) its gen- eral counsel's letter to City officials complaining about the lack of justification for extending Chelan Avenue; and (c) its arguments before the hearing examiner concerning the propriety of condition approval of the project on the extension of Chelan Avenue. The City argued, however, that Aho failed to exhaust administrative remedies before the City Council be- cause it failed to specifically raise the Chelan Avenue extension issue before it. The court rejected this argu- ment, holding that "[n]evertheless, exhaustion of reme- dies before the hearing examiner should extend to exhaustion of remedies before the [C]ity [C]ouncil since the [C]ity [C]ouncil merely reviewed the hearing examiner's record and decision in a closed record meeting." "If the [C]ity [C]ouncil did not understand that it was reviewing Aho's arguments of a missing nexus, a lack of proportionality, and a taking, one wonders what the [C]ity [C]ouncil believed itself to be reviewing," noted the court. The court concluded that "[n]otice to the [C]ity [C]ouncil of those issues by the hearing examiner's record fulfilled] the purpose of the doctrine of exhaustion of remedies." Accordingly, the court reversed the dismissal of Aho's LUPA petition, and remanded the proceedings. See also: King County v. Washington State Boundary Review Bd. for King County, 122 Wash. 2d 648, 860 P.2d 1024 (1993). See also: Citizens for Mount Vernon v. City of Mount Vernon, 133 Wash. 2d 861, 947 P.2d 1208 (1997). See also: Wells v. Western Washington Growth Man- agement Hearings Bd., 100 Wash. App. 657, 997 P.2d 405 (Div. 1 2000). See also: Kitsap Alliance of Property Owners v. Central Puget Sound Growth Management Hearings Bd., 160 Wash. App. 250, 255 P.3d 696 (Div. 2 2011). See also: Washington Attorney General's Office, Pub- lic Counsel Unit a Washington Utilities and Transporta- tion Commission, 4 Wash. App. 2d 657, 423 P.3d 861 (Div. 2 2018). Case Note: In its decision, the court also concluded that, "(biased on Washington case law .. . if a parry fails to cite a statute or ordinance before the administrative agency, the party may not rely on the statute or ordinance in the superior court suit challenging the agency action." The party, however, may. still rely on other statutes or constitutional clauses, said the court. © 2019 Thomson Reuters 7