Stientjes Family Trust v. Thurston County

217 P.3d 379
CourtCourt of Appeals of Washington
DecidedOctober 12, 2009
Docket63865-3-I
StatusPublished
Cited by3 cases

This text of 217 P.3d 379 (Stientjes Family Trust v. Thurston County) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stientjes Family Trust v. Thurston County, 217 P.3d 379 (Wash. Ct. App. 2009).

Opinion

217 P.3d 379 (2009)

Harlan Claire STIENTJES FAMILY TRUST and Mary Jo Stientjes, Respondents,
v.
THURSTON COUNTY, Defendant, and
Laressa Via-Fourre and Charles Via, Appellants.

No. 63865-3-I.

Court of Appeals of Washington, Division 1.

October 12, 2009.

*380 Harlan C. Stientjes, Attorney at Law, Olympia, WA, for Respondents.

Paul J. Hirsch, Attorney at Law, Manchester, WA, for Appellants.

DWYER, A.C.J.

¶ 1 Pursuant to the Land Use Petition Act (LUPA), chapter 36.70C RCW, a court may review a local government's land use decision only if the decision is final. A land use decision is final when it leaves nothing open to further dispute and sets to rest the cause of action between the parties. In this case, the Thurston County Board of County Commissioners (BOCC) remanded an administrative challenge to a construction site plan to its hearing examiner for further proceedings. The superior court reversed this decision. However, the BOCC's decision was not a final decision because it did not conclusively determine the rights of the parties by settling the challenging party's entitlement to relief. Therefore, the superior court lacked authority to conduct a LUPA review of the BOCC's decision. Accordingly, we reverse the superior court's ruling and remand this matter to the BOCC for reinstatement of its earlier decision.

*381 I

¶ 2 This LUPA petition stems from a dispute between two neighboring couples— Laressa Via-Fourre and Charles Via (together, "Via-Fourre") and Harlan and Mary Jo Stientjes[1] (together, "Stientjes")—concerning the construction of a detached carport on Stientjes' property. The parties' properties abut one another on a marine bluff. On July 11, 2007, Stientjes applied for and obtained a building permit for construction of the carport from the Thurston County Development Services Department (DSD). DSD issued the permit even though Stientjes' application omitted certain requested information about the property, including (1) a construction site plan indicating the location of required marine setbacks and buffers and (2) statements as to whether the property was within 300 feet of water and contained slopes with grades steeper than 50 percent.

¶ 3 Pursuant to the Thurston County Code, TCC 20.60.060, a person aggrieved by a DSD decision has 14 days to appeal from the decision to the county hearing examiner. Although Via-Fourre opposed construction of the carport, she did not formally challenge DSD's decision to issue the building permit by filing an administrative appeal within this time frame. Instead, at some point in late July and again in August, she informally raised concerns with DSD about whether the proposed location of the carport would satisfy marine bluff setback requirements under the county's Critical Areas Ordinance (CAO), TCC 17.15.620.

¶ 4 In response to Via-Fourre's concerns, DSD personnel inspected Stientjes' construction site in late August. They determined that the site plan did not contain sufficient setbacks, relative to both Stientjes' property boundary and the height of the marine bluff, to meet CAO requirements. Accordingly, they posted a stop work order at the site.

¶ 5 However, the stop work order was short-lived. On the basis of new information, DSD subsequently determined that the site plan satisfied CAO setback requirements. On November 19, it lifted the stop work order, allowing the planned construction to proceed subject to additional conditions.

¶ 6 On November 30, Via-Fourre appealed from DSD's decision to lift the stop work order to the county hearing examiner. She raised several issues in the appeal, including whether DSD's calculations of the setback positions were accurate and whether the setbacks complied with the requirements of the CAO. Although Via-Fourre appealed from DSD's decision to remove the stop work order, she specifically referred to Stientjes' building permit as the basis for her appeal.

¶ 7 The hearing examiner subsequently denied Via-Fourre's request for relief, dismissing her administrative appeal as untimely. After determining that Via-Fourre's appeal concerned the building permit issued on July 11, the hearing examiner concluded that her appeal was untimely under LUPA's strict requirement that an appeal from a final land use decision be filed in the appropriate superior court within 21 days of the decision.[2]See RCW 36.70C.040(3). The hearing examiner did not address whether Via-Fourre had complied with the county code's 14-day time limit for filing administrative appeals or whether DSD's November 19 decision to lift the stop work order constituted a land use decision separate from the July 11 permit decision.

¶ 8 Via-Fourre then appealed from the hearing examiner's order to the BOCC.[3] The BOCC reversed the hearing examiner's ruling that Via-Fourre's challenge was time-barred and remanded Via-Fourre's cause for further review. In so doing, it emphasized that the cause concerned whether DSD had correctly applied the CAO in deciding to lift the stop work order. In remanding the cause for further proceedings, the BOCC *382 specifically directed the hearing examiner to determine whether the site plan complied with the CAO. The BOCC did not revoke Stientjes' permit or otherwise encumber his right to construct the carport as granted by the building permit.[4]

¶ 9 Stientjes then sought LUPA review of the BOCC's decision in superior court. The superior court granted Stientjes' petition, reversing the BOCC's decision and reinstating the hearing examiner's order of dismissal. The superior court concluded that Via-Fourre's failure to challenge the building permit within 21 days of its initial issuance rendered any subsequent challenge concerning the permit an impermissible collateral attack.

II

¶ 10 Via-Fourre contends that the BOCC's decision was not a final land use decision and therefore the superior court lacked authority to review it. We agree.

¶ 11 With certain exceptions not pertinent here, LUPA provides the "exclusive means of judicial review of land use decisions." RCW 36.70C.030(1);[5]Samuel's Furniture, Inc. v. Dep't of Ecology, 147 Wash.2d 440, 449, 54 P.3d 1194, 63 P.3d 764 (2002). LUPA defines a "land use decision" as the "final determination by a local jurisdiction's body or officer with the highest level of authority to make the determination, including those with authority to hear appeals," on administrative actions and interpretation of regulations affecting the use of real property. RCW 36.70C.020(1) (emphasis added);[6]see also Chelan County v. Nykreim, 146 Wash.2d 904, 52 P.3d 1 (2002) (holding that a local jurisdiction's decision concerning a building permit application constitutes a land use decision). For a superior court to have the authority to conduct a LUPA review of a local government's land use decision, the appeal "must be from a final governmental decision." Nykreim, 146 Wash.2d at 938, 52 P.3d 1; see also

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Cite This Page — Counsel Stack

Bluebook (online)
217 P.3d 379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stientjes-family-trust-v-thurston-county-washctapp-2009.