End The Prison Industrial Complex v. City Of Seattle ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
END THE PRISON INDUSTRIAL
COMPLEX ("EPIC"), DIVISION ONE
Appellant, No. 77212-1-1
YOUTH UNDOING INSTITUTIONAL
RACISM, EUROPEAN DISSENT,
BLOCK THE BUNKER, COMMUNITY
2 COMMUNITY, ONE AMERICA, UNPUBLISHED OPINION
AFRICAN AMERICAN LEADERSHIP
FORUM, REV. ANDREW CONLEY-
HOLCOM, ARTIFACTS, ARTS CORPS,)
AUTONOMOUS ACTIONS AGAINST
PRISONS, REV. BETH CHRONISTER,
BUDDHIST PEACE FELLOWSHIP,
COALITION OF ANTI-RACIST
WHITES, SEATTLE CISPES,
COMMITTEE ON OPPRESSION AND
RACISM IN EDUCATION,
COMMUNITY PASSAGEWAYS,
EVANS PEOPLE OF COLOR, HIDMO,
INCARCERATED MOTHERS
ADVOCACY PROJECT, LATINO/A
LAW STUDENTS ASSOCIATION,
LATINO ADVOCACY, MIGRANT
JUSTICE GROUP, NO NEW
JIM CROW, NWDC RESISTANCE,
PARTNERSHIP FOR COMMUNITY &
DIVERSITY, POST-PRISON
EDUCATION PROGRAM, RABBI
DAVID BASIOR, RACE ACTION
COMMITTEE AT EVANS, RB
RESTORATIVE JUSTICE, REAL
No. 77212-1-1/2
CHANGE, RED NOSES, REV. RICK )
DERKSEN, PROFESSOR ROSE )
ERNST, RACE & CLIMATE JUSTICE, )
RISING TIDE SEATTLE, SEA SOL, )
SEATTLE MENNONITE CHURCH, )
STOP VEOLIA SEATTLE, SURGE, )
TENANTS UNION OF WASHINGTON )
STATE,TRANSIT RIDERS UNION, )
UNIVERSITY UNITARIAN CHURCH, )
WA-BLOC, YOUTH SPEAKS )
SEATTLE, )
)
Petitioners/Plaintiffs, )
)
v. )
)
KING COUNTY, BALFOUR BEATTY )
CONSTRUCTION, D/B/A HOWARD )
S. WRIGHT AND PATRICK )
DONNELLY, )
)
Respondents, )
)
CITY OF SEATTLE, )
)
Defendant.t )
) FILED: May 29, 2018
)
DWYER, J. — End the Prison Industrial Complex(EPIC) appeals from an
order of the King County Superior Court dismissing its Land Use Petition Act
(LUPA)1 petition and its mandamus actions against King County and the City of
Seattle. EPIC contends that the superior court erred by dismissing EPIC's LUPA
t The judgment entered herein did not set forth a case caption identifying all of the parties
to this dispute before the superior court. Similarly, the case captions set forth in the appellant's
and petitioners'/plaintiffs' superior court petition and complaint did not identify these parties, in
violation of CR 10(a)(1)("In the complaint the title of the action shall include the names of all the
parties."(emphasis added)). Our rules provide that we utilize the caption as it was set forth in the
superior court. RAP 3.4. However, given that the matter was improperly captioned in the
superior court, we exercise our authority to correct the error. RAP 3.4.
1 Ch. 36.70C RCW.
2
No. 77212-1-1/3
petition challenging the decisions of the Seattle Department of Construction and
Inspections (SDCI) on the basis that the LUPA petition was untimely filed and by
dismissing EPIC's mandamus actions on the basis that the actions did not satisfy
the statutory requirements for mandamus relief.
Concluding that the superior court did not err by dismissing EPIC's claims,
we affirm.
I
In August 2012, voters in King County approved a levy to fund a proposal
known as the Children and Family Justice Center Project. The Project involves
the demolition of an existing juvenile justice complex located in Seattle known as
the Youth Services Center and the construction of a new complex to be known
as the Children and Family Justice Center. The new complex is to be comprised
of structures including courtrooms, office space, detention housing, a school, and
a parking structure. King County was designated the lead agency for the Project
and is also the owner of the property in question.
King County, in its capacity as lead agency for the Justice Center Project,
initiated and completed a State Environmental Policy Act(SEPA)2 review of the
Project's environmental impact. In 2013, King County issued a Mitigated
Determination of Non-Significance (MDNS), indicating that the Project would not
have a probable significant adverse impact on the environment.
Thereafter, in its capacity as property owner and developer, King County
requested a Master Use Permit(MUP)from SDCI to modify or waive certain
2 Ch. 43.21C RCW.
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No. 77212-1-1/4
building-width and setback development standards that the city code made
applicable to structures categorized as a youth service centers.
On December 22, 2016, SDCI issued a notice of decision that it had
approved King County's permit request. The notice of decision set forth that
SDCI would issue a MUP to King County that would authorize King County to
commence the demolition and construction phase of the Justice Center Project.
Two decisions set forth in SDCI's notice of decision regarding King
County's MUP request are pertinent to this appeal. First, the notice of decision
set forth that SDCI was waiving and modifying the City's structure-width and
setback development standards regarding youth service centers in order to
accommodate the Justice Center Project. Additionally, SDCI's notice of decision
set forth that its approval of King County's MUP request was conditioned on both
King County's acknowledgement and filing of specified management plans
required by the City and King County's compliance with its MDNS, including the
environmental mitigation conditions set forth therein.
As pertinent here, SDCI's notice of decision also set forth a statement that
read: "Appeals of this decision must be received by the Hearing Examiner no
later than 1/5/2017." Prior to January 5, 2017, EPIC filed with the City's Hearing
Examiner an administrative appeal challenging SDCI's decisions regarding the
development standards for youth service centers and the SEPA conditions that
SDCI had imposed. EPIC did not file a LUPA petition in the King County
Superior Court challenging SDCI's decisions at this time.
4
No. 77212-1-1/5
King County and Balfour Beatty Construction, d/b/a Howard S. Wright and
Patrick Donnelly, jointly moved to dismiss EPIC's administrative appeal. On
March 1, 2017, the Hearing Examiner dismissed EPIC's appeal on the basis that
the City's land use code3 did not authorize the Examiner to resolve EPIC's
administrative appeal challenging SDCI's decisions. Specifically, the Examiner
concluded that, pursuant to the City's land use code,"the Department's decision
modifying certain development standards for the Children and Family Justice
Center project" and "the City's decision imposing SEPA conditions on the Family
and Justice Center project" are "not subject to appeal to the Hearing Examiner."
EPIC sought reconsideration of the Examiner's decisions, which was denied on
March 28, 2017.
On April 14, 2017, 21 days after the Hearing Examiner's denial of
reconsideration issued, EPIC filed a LUPA petition in the King County Superior
Court challenging both SDCI's decisions and the Hearing Examiner's ruling that
the Examiner did not have authority to resolve an administrative appeal from the
challenged SDCI decisions. EPIC also filed a complaint alleging that King
County and Balfour Beatty had violated SEPA and that mandamus relief against
the City of Seattle, King County, and Balfour Beatty was warranted.
Balfour Beatty moved to dismiss EPIC's LUPA petition. King County
moved to dismiss EPIC's complaint. They also joined one another's dismissal
3 Ch. 23.76 SMC.
5
No. 77212-1-1/6
motions.4 The superior court granted both motions and dismissed EPIC's LUPA
petition and complaint with prejudice.5
11
A
EPIC contends that the superior court erred by dismissing as untimely its
LUPA petition challenging SDCI's decisions. We disagree.
"We review de novo a superior court's ruling on a motion to dismiss for
failure to state a claim upon which relief can be granted pursuant to CR 12(b)(6)."
Durland v. San Juan County, 175 Wash. App. 316, 320, 305 P.3d 246(2013), aff'd,
182 Wash. 2d 55, 340 P.3d 191 (2014)(citing West V. Stahlev, 155 Wash. App. 691,
696, 229 P.3d 943(2010)). "The superior court properly dismisses a claim
pursuant to CR 12(b)(6)'only if it appears beyond a reasonable doubt that no
facts justifying recovery exist.' Durland, 175 Wn. App. at 320(quoting West, 155
Wash. App. at 696). When the facts are not at issue, we review de novo a superior
court ruling that a LUPA petition was untimely. Nickum v. City of Bainbridge
Island, 153 Wash. App. 366, 373-74, 223 P.3d 1172(2009)(citing Wells v. Olsten
Corp., 104 Wash. App. 135, 139, 15 P.3d 652(2001)).
The stated purpose of LUPA is to provide "consistent, predictable, and
timely judicial review." RCW 36.70C.010. Hence,"[a]bsent specific, limited
4 The City of Seattle took no position on King County's and Balfour Beatty's motions.
5 EPIC later moved for reconsideration, which the superior court denied.
6
No. 77212-1-1/7
exceptions,[6] LUPA is 'the exclusive means of judicial review of land use
decisions." Durland, 175 Wash. App. at 321 (quoting RCW 36.70C.030(1)).
LUPA invokes the appellate jurisdiction of the superior court;
accordingly, "the superior court has only the jurisdiction as
conferred by law." Conom v. Snohomish County, 155 Wash. 2d 154,
157, 118 P.3d 344 (2005). Pursuant to LUPA, the superior court,
acting in its appellate capacity, may review only "land use
decisions," as defined by the act. See RCW 36.70C.010,.030(1).
Durland, 175 Wash. App. at 321.
LUPA defines a "land use decision," in pertinent part, as
a 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:
(a) An application for a project permit or other governmental
approval required by law before real property may be improved,
developed, modified, sold, transferred, or used.
RCW 36.70C.020(2).7
Consequently, to ensure timely review of land use decisions,"LUPA
requires that a party file a petition for review with the superior court within 21
days of the date [that] a land use decision is issued." Vogel v. City of Richland,
,
161 Wash. App. 770, 776-77, 255 P.3d 805(2011)(citing RCW 36.70C.040(3)).
This deadline is "stringent." Asche v. Bloomquist, 132 Wash. App.
784, 795, 133 P.3d 475(2006), review denied, 159 Wash. 2d 1005
(2007). It reflects a strong public policy of finality in land use
decisions. Samuel's Furnituref, Inc., v Dep't of Ecology], 147
Wn.2d [440, 1458-59 [, 54 P.3d 1194, 63 P.3d 764 (2002)]. Even
illegal land use decisions will be allowed to stand if not timely
6 LUPA does not apply to judicial review of "[I]and use decisions made by bodies
that are not part of a local jurisdiction," "[I]and use decisions of a local jurisdiction
that are subject to review by a quasi-judicial body created by state law,"
"applications for a writ of mandamus or prohibition," or "[c]laims provided by any
law for monetary damages or compensation."
Durland, 175 Wash. App. at 321 n.2 (quoting RCW 36.70C.030(1)).
7 The parties do not dispute that the challenged SDCI decisions are land use decisions
as set forth in RCW 36.70C.020(2).
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No. 77212-1-1/8
challenged under LUPA. Habitat Watch v. Skagit County, 155
Wash. 2d 397, 407, 120 P.3d 56 (2005).
Chumbley v. Snohomish County, 197 Wash. App. 346, 359, 386 P.3d 306(2016).
"Numerous opinions confirm that the 21 day LUPA deadline is absolute."
Nickum, 153 Wash. App. at 382 (citing Habitat Watch, 155 Wash. 2d at 406-07;
Chelan County v. Nykreim, 146 Wash. 2d 904, 932-33, 52 P.3d 1 (2002); Spice V.
Pierce County, 149 Wash. App. 461, 467, 204 P.3d 254(2009); Keep Watson
Cutoff Rural v. Kittitas County, 145 Wash. App. 31, 37-38, 184 P.3d 1278 (2008)).
"Thus, challenges brought after the expiration of deadlines for filing local
administrative appeals or after LUPA's 21-day time period for filing an appeal
constitute impermissible collateral attacks." Stientjes Family Tr. v. Thurston
County, 152 Wn. App. 616,624 n.8, 217 P.3d 379(2009)(citing Habitat Watch,
155 Wash. 2d at 410-11; Nykreim, 146 Wash. 2d at 933; Wenatchee Sportsmen Ass'n
v. Chelan County, 141 Wash. 2d 169, 181,4 P.3d 123(2000)).
There is no dispute that SDCI issued the land use decisions challenged by
EPIC on December 22, 2016. It is also undisputed that EPIC filed its LUPA
petition challenging these decisions in the superior court on April 14, 2017.
Given these undisputed facts, the superior court determined that EPIC's
LUPA petition challenging SDCI's decisions was filed well beyond LUPA's 21-day
limitation period allotted for superior court review of a land use decision. The
superior court accordingly ruled that EPIC's LUPA petition challenging SDCI's
decisions was untimely.
There was no error. Given LUPA's "stringent" and "absolute" limitation
period, Asche, 132 Wash. App. at 795, Nickum, 153 Wash. App. at 382, the superior
8
No. 77212-1-1/9
court did not err by ruling that EPIC's LUPA petition challenging SDCI's decisions
was untimely.
EPIC next challenges several components underlying the superior court's
dismissal ruling. None of EPIC's arguments warrant appellate relief.
1
EPIC initially contends that the superior court erred by ruling that EPIC's
LUPA petition challenging SDCI's decisions was untimely because the superior
court incorrectly identified SDCI as the final decision-maker responsible for the
challenged SDCI decisions. The superior court erred, EPIC asserts, because the
Hearing Examiner, rather than SDCI, was the final decision-maker responsible
for the challenged SDCI decisions and EPIC's LUPA petition challenging SDCI's
decisions was filed in the superior court within 21 days of the Examiner's final
determination.
In order to determine whether the superior court properly identified the
final decision-maker responsible for the challenged SDCI decisions, we must
review the administrative decision upon which the superior court's timeliness
ruling was predicated.
"In reviewing an administrative decision, we stand in the same position as
the superior court." Biermann v. City of Spokane, 90 Wash. App. 816, 821, 960
P.2d 434(1998)(citing Wilson v. Emp't Sec. Dep't, 87 Wash. App. 197, 201, 940
P.2d 269(1997)). In the context of administrative review, we review the
9
No. 77212-1-1/10
administrative agency action, not the superior court record. J.L. Storedahl &
Sons, Inc. v. Cowlitz County, 125 Wash. App. 1, 6, 103 P.3d 802(2004).
Here, the administrative action at issue is the Hearing Examiner's ruling
that the City's land use code did not authorize the Examiner to resolve an appeal
from EPIC's LUPA petition challenging SDCI's decisions. This ruling by the
Hearing Examiner was a land use decision as defined by LUPA.8 RCW
36.70C.020(2).
Under LUPA, we may grant relief from a land use decision if the petitioner
establishes that "[t]he land use decision is an erroneous interpretation of the law,
after allowing for such deference as is due the construction of a law by a local
jurisdiction with expertise." RCW 36.70C.130(1)(b). Accordingly, in reviewing
the Examiner's ruling, we give deference to the Examiner's construction of the
City's land use code. Cinpular Wireless, LLC v. Thurston County, 131 Wash. App.
756, 768, 129 P.3d 300(2006).
A hearing examiner "has only the authority granted it by statute or
ordinance." HJS Dev., Inc. v. Pierce County ex rel. Dep't of Planning & Land
Servs., 148 Wash. 2d 451, 471, 61 P.3d 1141(2003)(citing Lejeune v. Clallam
County, 64 Wash. App. 257, 270, 823 P.2d 1144 (1992)). As pertinent here, the
Hearing Examiner's authority to resolve an administrative appeal of the
8 The Hearing Examiner's ruling regarding the Examiner's administrative appeal authority
under the land use code was a distinct land use decision under LUPA with a limitation period
separate and apart from the LUPA limitation period applicable to the SDCI decisions challenged
by EPIC. Because EPIC filed its LUPA petition challenging the Hearing Examiner's ruling within
21 days of the Hearing Examiner's final determination (the Examiner's denial of EPIC's motion to
reconsider the Examiner's ruling), the timeliness of EPIC's LUPA petition challenging the
Examiner's ruling is not here at issue.
-10-
No. 77212-1-1/11
challenged SDCI decisions is established by ordinance codified at chapter 23.76
of the Seattle Municipal Code—referred to herein as the City's land use code.
"Interpretation of local ordinances is governed by the same rules of
construction as state statutes." HJS Dev., 148 Wash. 2d at 471 (citing World Wide
Video, Inc. v. City of Tukwila, 117 Wash. 2d 382, 392, 816 P.2d 18 (1991)).
"IA] court must not add words where the legislature has chosen not to
include them. A court also must construe statutes such that all of the language is
given effect, and no portion [is] rendered meaningless or superfluous." In re
Reinterment of Remains of Faenov, 194 Wash. App. 42, 48, 376 P.3d 447(second
alteration in original)(internal quotation marks omitted)(quoting Rest. Dev., Inc.
v. Cananwill, Inc., 150 Wn.2d 674,682, 80 P.3d 598 (2003)), review denied, 186
Wash. 2d 1015 (2016). Significantly,
[a] general statutory provision must yield to a more specific
statutory provision. Waste Mgmt. of Seattle'', Inc., v. Utils. &
Transp. Comm'n1, 123 Wn.2d [621,]629-30['869 P.2d 1034
(1994)]; see also Kustura v. Dep't of Labor & Indus., 169 Wash. 2d 81,
91, 233 P.3d 853(2010)(general statutory provisions inapplicable
in light of statutory provision that "specifically addresse[d] and
definitively establish[ed]" the question before the court).
Ass'n of Wash. Spirits & Wine Distribs. v. Liquor Control Bd., 182 Wash. 2d 342,
356, 340 P.3d 849(2015).
In this matter, the Hearing Examiner first determined that former SMC
23.76.006.0(2016)9 set forth the exclusive list of Type II decisions subject to
9 Former SMC 23.76.006.C, enacted on December 21, 2016, City of Seattle Ordinance
No. 125233, was the land use code provision in effect at the time that SDCI and the Hearing
Examiner made their respective decisions. As will be discussed below, the City Council amended
former SMC 23.76.006.0 in June 2017, six months after the Hearing Examiner issued the ruling
here at issue.
No. 77212-1-1/12
administrative appeal to the Examiner.10 This determination relied upon a
construction of SMC 23.76.004, .006.C, and .022(A). Each of these provisions
is set forth below.
SMC 23.76.004 reads, in pertinent part:
A. Land use decisions are classified into five categories.
Procedures for the five different categories are distinguished
according to who makes the decision, the type and amount of
public notice required, and whether appeal opportunities are
provided. Land use decisions are generally categorized by
type in Table A for 23.76.004.
B. Type I and II decisions are made by the Director and are
consolidated in Master Use Permits. Type 1 decisions are
decisions made by the Director that are not appealable to the
Hearing Examiner. Type II decisions are discretionary
decisions made by the Director that are subject to an
administrative open record appeal hearing to the Hearing
Examiner.
(Emphasis added.) Significantly, SMC 23.76.004 provides that "Sections
23.76.006 and 23.76.036 11 establish the types of land use decisions in each
category."12 SMC 23.76.004, Table A n.1.
Former SMC 23.76.006.0 sets forth a list of Type 11 land use decisions,
totaling 14 distinct land use decisions. Notably, the challenged SDCI decisions
are not listed among the Type II land use decisions set forth in former SMC
23.76.006.C.
10 The City's land use code categorizes land use decisions made by the City—including
land use decisions by SDCI—into one of five types of decisions. SMC 23.76.004.A. A subset of
SDCI's land use decisions are categorized as Type ll decisions. SMC 23.76.004.B, 006.A. The
parties do not dispute that the challenged SDCI decisions constituted Type ll decisions.
11 SMC 23.76.036 regards Type IV and Type V land use decisions made by the City
Council, which are not at issue on appeal.
12 SMC 23.76.004 also sets forth a table listing land use decisions by type and states that
the table "is intended to provide only a general description of land use decision types." SMC
23.76.004, Table A n.1 (emphasis added).
- 12 -
No. 77212-1-1/13
SMC 23.76.022(A) regards administrative appeals of Type II land use
decisions to the Hearing Examiner. It reads, "All Type II decisions listed in
subsection 23.76.006.0 are subject to an administrative open record appeal."
SMC 23.76.022(A).
Upon review of the foregoing land use code provisions, the Examiner
determined that,
[w]hen SMC 23.76.004, SMC 23.76.006, and SMC 23.76.022[are]
read together and harmonized, their plain meaning is apparent.
SMC 23.76.004 is intended to provide a general summary of the
land use decision framework, much of which is taken up again in
SMC 23.76.006 in greater detail. SMC 23.76.004.6 makes the
general statement that Type I decisions are made by the [SDCI]
Director and may not be appealed to the Examiner, whereas Type
II decisions are discretionary decisions made by the Director and
are subject to an appeal to the Examiner. Read in isolation, this
section appears to state that all Type II decisions may be appealed
to the Examiner. If that were true, the Director's decision to modify
development standards for the subject project could be appealed to
the Hearing Examiner because, as a Type II decision identified as
such in SMC 23.51A.004, it would fit within the list of Type II
decisions in Table A for 23.76.004. But Footnote Ito Table A
confirms that it is SMC 23.76.006, not SMC 23.76.004, that
"establish[es] the types of land use decisions in each category."
And SMC 23.76.006 controls not just which decisions are Type II,
but of those, which may be administratively appealed. This
construction is reinforced by SMC 23.76.022, which is the source of
the Examiner's jurisdiction over appeals of Type II decisions and
confirms that "[all' Type II decisions listed in subsection
23.76.006.C" may be appealed to the Hearing Examiner.
Accordingly, the Examiner determined that former SMC 23.76.006.0 set forth the
exclusive list of Type II decisions subject to administrative appeal to the
Examiner.
This determination was sensible. As well-reasoned by the Examiner, a
combined reading of the three land use code provisions, by their plain terms,
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No. 77212-1-1/14
indicates that the City intended that SMC 23.76.006.0 set forth the exclusive list
of Type 11 decisions subject to administrative appeal to the Examiner.
The Hearing Examiner next determined that former SMC 23.76.006.0 did
not list among the Type 11 decisions set forth therein a decision by SDCI to either
modify or waive building-width and setback development standards for a youth
services center or impose SEPA conditions on the Project.
The parties do not dispute that former SMC 23.76.006.0 did not set forth
either of these SDCI decisions. Indeed, neither such decision was listed in
former SMC 23.76.006.C. Thus, the Examiner's determination was proper.
In light of the two foregoing determinations, the Examiner ultimately
determined that
[u]nder the Land Use Code, neither [SDCI's] decision to modify or
waive development standards for the Family and Justice Center
Project under SMC 23.51A.004.C, nor[SDCI's] imposition of SEPA
conditions on the Project under Chapter 25.05 SMC, is a Type 11
decision that may be appealed to the Hearing Examiner.
Accordingly, the Hearing Examiner ruled that the City's land use code did not
authorize the Examiner to resolve an administrative appeal from the challenged
SDCI decisions.
The Hearing Examiner's ruling was sound. The Examiner's ruling logically
followed from the Examiner's prior determinations and, given the Examiner's
expertise with the City's land use code, the Examiner's ruling is entitled to our
deference. RCW 36.70C.130(1)(b). There was no error.13
13 EPIC nevertheless contends that the City's land use code granted the Hearing
Examiner the authority to resolve its administrative appeal from the challenged SDCI decisions.
This is so, EPIC asserts, because when SMC 23.51A.00413.6, SMC 23.76.004, and SMC
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No. 77212-1-1/15
2
EPIC next contends that the superior court erred by determining that
EPIC's LUPA petition challenging SDCI's decisions was untimely because the
superior court incorrectly identified the decisions by SDCI as the final land use
decisions issued on behalf of the City regarding the challenged SDCI decisions.
This is so, EPIC avers, because the Hearing Examiner's ruling explicitly set forth
that "the decision of the Hearing Examiner in this case is the final decision for the
City of Seattle."
EPIC is incorrect. The briefing and argument before the Hearing
Examiner regarded the Examiner's authority under the City's land use code to
resolve an administrative appeal from the challenged SDCI decisions. The
Hearing Examiner's analysis and ultimate ruling reflect that the Examiner issued
a determination regarding the Examiner's authority to resolve such an appeal.
Indeed, when the Hearing Examiner ruled that the Examiner's decision "in this
case is the final decision for the City of Seattle," the Examiner was plainly
23.76.028 are construed together, these provisions establish that all Type ll decisions are subject
to an administrative appeal to the Examiner.
We disagree. As a preliminary matter, EPIC's argument improperly reads out of the
City's land use code the three provisions that directly relate to Type II decisions and
administrative appeal thereof—former SMC 23.76.006, SMC 23.76.004 Table A n.1, and SMC
23.76.022. We do not favor an interpretation that renders these provisions "'meaningless or
superfluous." In re Reinterment of Remains of Faenov, 194 Wash. App. at 48 (internal quotation
marks omitted)(quoting Rest. Dev., Inc., 150 Wash. 2d at 682). Indeed, if the City intended to make
all Type II decisions appealable, there would be no justification for setting forth the list of Type II
decisions codified at SMC 23.76.006 nor would it be necessary for two additional land use code
provisions to cross-reference SMC 23.76.006 as setting forth such a list.
Furthermore, because SMC 23.76.004 indicates that it is intended to provide only a
"general description of land use decision types," see Table A n.1, and SMC 23.76.022.A
specifically identifies that former SMC 23.76.006 is the provision that sets forth the list of
appealable Type II decisions, SMC 23.76.022.A, the more specific land use code provision, must
control over the more general land use code provisions relied upon by EPIC. Ass'n of Wash.
Spirits & Wine Distribs., 182 Wash. 2d at 356. Thus, EPIC's proposed construction is unavailing.
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No. 77212-1-1/16
referencing the ruling that the Examiner was asked to make upon the dismissal
motion of King County and Balfour Beatty. Accordingly, the Examiner's ruling
was a final determination as to the Examiner's authority to resolve an
administrative appeal from the challenged SDCI decisions.
It must be emphasized that the Hearing Examiner's ruling was a land use
decision wholly distinct from the final land use decisions issued by SDCI in this
matter. Indeed, as analyzed, SDCI was the local jurisdictional body with highest
authority to render a land use decision regarding the challenged SDCI decisions.
Thus, the Examiner's ruling was not a final determination as to the
propriety of the challenged SDCI decisions but, rather, was a final determination
as to the Examiner's authority to resolve EPIC's administrative appeal to the
Examiner. Accordingly, the superior court did not err by concluding that the
Hearing Examiner's ruling was not the final determination regarding the
challenged SDCI decisions. There was no error.14
3
EPIC next contends that the superior court erred by ruling that EPIC's
LUPA petition challenging SDCI's decisions was untimely because a retroactive
ordinance enacted by the City Council three weeks prior to the superior court's
ruling granted the Hearing Examiner the authority under the land use code to
resolve an administrative appeal from the challenged SDCI decisions. Because
the Hearing Examiner was retroactively granted this authority, EPIC avers,
14 Given our disposition of the superior court's dismissal of EPIC's LUPA petition
challenging SDCI's decisions, infra, we do not address the contention that EPIC lacked standing
under LUPA to bring its petition challenging SDCI's decisions.
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No. 77212-1-1/17
EPIC's LUPA petition challenging SDCI's decisions was timely filed,
notwithstanding that SDCI had months earlier approved King County's request
for a MUP under the then-existing administrative appeal procedures. EPIC is
mistaken.
"Legislation cannot be applied retroactively where doing so would affect
vested rights." Kitsap All. of Prop. Owners v. Cent. Puget Sound Growth Mqmt.
Hearings Bd., 160 Wash. App. 250, 261, 255 P.3d 696(2011)(citing Lummi Indian
Nation v. State, 170 Wash. 2d 247, 261, 241 P.3d 1220(2010); Hale v. Wellpinit
Sch. Dist. No. 49, 165 Wash. 2d 494, 507, 198 P.3d 1021 (2009); Wash. State Farm
Bureau Fed'n v. Gregoire, 162 Wash. 2d 284, 304-05,174 P.3d 1142(2007)).
Municipalities, within the parameters of the vested rights doctrine set forth
in our statutory and decisional authority, "are free to develop vesting schemes
best suited to the needs of a particular locality." Erickson & Assocs., Inc. v.
McLerran, 123 Wash. 2d 864, 873, 872 P.2d 1090(1994).
The City of Seattle's vesting scheme applicable to Master Use Permits
reads, in pertinent part, "[A]pplications for Master Use Permit components other
than subdivisions and short subdivisions shall be considered vested under the
Land Use Code and other land use control ordinances in effect on the date ...
[o]f the Directors decision, if the decision is not appealable to the Hearing
Examiner." SMC 23.76.026.A (emphasis added).15
15 See Erickson & Assocs., 123 Wn.2d at 875("The City's vesting ordinance strikes a
proper balance between developers' rights and public interest." (analyzing SMC 23.76.026)).
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Here, SDCI issued its decisions challenged by EPIC on December 22,
2016. As analyzed, these decisions were not appealable to the Hearing
Examiner. Therefore, EPIC had 21 days from the issuance of the challenged
SDCI decisions to submit a LUPA petition to the superior court. EPIC did not do
so. Therefore, under SMC 23.76.026, King County possessed a vested interest
in commencing the Justice Center Project in accordance with the regulations and
ordinances in effect in January 2017.
Nevertheless, in June 2017, the City Council enacted an ordinance that
amended former SMC 23.76.006.0 to add to the exclusive list of Type II
decisions a "Decision to waive or modify development standards relating to
structure width or setbacks for a youth service center pursuant to subsection
23.51A.004.13.6."16 The ordinance stated that it had retroactive effect, with an
effective date of April 1, 2015.
But the City's June 2017 ordinance could not lawfully have retroactive
effect as applied to the challenged SDCI decisions underlying King County's
Master Use Permit in this matter. The City enacted the ordinance in question in
June 2017, six months after King County's rights in its Master Use Permit had
vested. Therefore, King County retained a right to proceed with the Justice
Center Project with the municipal land use code provisions in effect as of January
16 See City of Seattle Ordinance No. 125319(enacted on June 1, 2017). Although the
preamble to this ordinance set forth that it was an ordinance "amending Section 23.76.006 of the
Seattle Municipal Code to clarify that a land use decision to waive or modify structure width or
setbacks for a youth service center, and integrated SEPA decisions, are Type ll decisions that
may be appealed to the City Hearing Examiner," the June 2017 ordinance does not appear to
amend former SMC 23.76.006.0 to list a decision by SDCI to impose SEPA conditions on the
Justice Center Project. See Ordinance No. 125319(emphasis added).
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2017, including those provisions that, as explained, did not authorize the Hearing
Examiner to resolve an administrative appeal from the challenged SDCI
decisions.
Accordingly, the superior court did not err by rejecting EPIC's argument.17
4
EPIC next contends that the superior court erred by ruling that EPIC's
LUPA petition challenging SDCI's decisions was untimely because SDCI's
issuance of an inaccurate notice of appeal warrants application of the equitable
tolling doctrine in EPIC's favor.
Equitable tolling is a doctrine applicable to conduct by parties to a dispute.
See, e.o., Graham Neigh. Ass'n v. F.G. Assocs., 162 Wash. App. 98, 119, 252 P.3d
898(2011)("The predicates for equitable tolling are bad faith, deception, or false
assurances by the defendant and the exercise of diligence by the plaintiff"
(emphasis added)(internal quotation marks omitted)(quoting Nickum, 153 Wn.
App. at 379)).
Because SDCI was not a party to the dispute at the time that it issued the
notice of appeal, EPIC's argument fails. When SDCI issued the notice of appeal
in question, the parties to the dispute were EPIC, King County, and Balfour
17 EPIC contends that the City's June 2017 ordinance has retroactive effect because it
was designated as a "curative ordinance." A curative ordinance "'clarifies or technically corrects
an ambiguous" preexisting ordinance. See McGee Guest Home, Inc. v. Dep't of Soc. & Health
Servs., 142 Wash. 2d 316, 325,12 P.3d 144(2000)(quoting In re F.D. Processing, Inc., 119 Wash. 2d
452, 460, 832 P.2d 1303(1992)). However, the land use code provisions here at issue were not
ambiguous. Rather, by their plain terms, the provisions did not authorize the Hearing Examiner to
resolve an appeal from the challenged SDCI decisions. Moreover, even a curative ordinance
could not divest King County of its vested rights.
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Beatty. SDCI was not a party but, rather, was a decision-maker. No action by a
party to the dispute was inequitable.
Thus, equitable tolling does not apply. There was no error.18
The superior court did not err by dismissing as untimely EPIC's LUPA
petition challenging SDCI's decisions.19
Ill
EPIC next contends that the superior court erred by dismissing its
mandamus actions against King County. We disagree.
As indicated,"LUPA does not apply to judicial review of...'applications
for a writ of mandamus or prohibition." Durland, 175 Wash. App. at 321 n.2
(quoting RCW 36.70C.030(1)). We engage in de novo review of a superior court
18 EPIC's appellate briefing also argues that the doctrine of equitable estoppel should
require that the City's inaccurate statement regarding a hearing examiner appeal should cause a
tolling of LUPA's limitation period. EPIC presents no authority or analysis in support of this
argument. We do not consider arguments unsupported by analysis or citation to authority.
Cowiche Canyon Conservancy v. Bosley, 118 Wash. 2d 801, 809, 828 P.2d 549(1992).
Regardless, equitable estoppel, as with equitable tolling, is a doctrine applicable to
parties to a dispute, rather than to decision-makers. See, e.g., Newport Yacht Basin Ass'n of
Condo. Owners v. Supreme Nw., Inc., 168 Wash. App. 56, 79, 277 P.3d 18(2012)(describing
elements of equitable estoppel with regard to actions by parties (quoting Kramarevckv v. Dep't of
Soc. & Health Servs., 122 Wash. 2d 738, 743, 863 P.2d 535 (1993)). As explained, the City was a
decision-maker, not a party to the dispute, when it issued the notice challenged by EPIC.
Accordingly, EPIC's argument fails.
19 EPIC also contends that the superior court erred by determining that EPIC's LUPA
petition was untimely given that RCW 36.706.130 granted it a statutory right to proper notice of
the procedure for administrative appeal and the City's failure to give such notice must be deemed
to toll LUPA's limitation period. We disagree. As analyzed, the City's land use code did not, in
actuality, authorize an administrative appeal from the challenged SDCI decisions. EPIC thus had
no right to notice pursuant to RCW 36.706.130.
EPIC next relies on Barrie v. Kitsap County, 84 Wash. 2d 579, 527 P.2d 1377(1974),
Prekeges v. King County, 98 Wash. App. 275, 990 P.2d 405(1999), and Leson v. Dep't of Ecology,
59 Wash. App. 407, 799 P.2d 268(1990), for the proposition that inaccurate notice of the possibility
of an administrative appeal tolls the statutory limitation period applicable to the filing of a LUPA
petition. Because none of these decisions, in actuality, set forth the proposition alleged by EPIC,
EPIC's reliance upon them is unavailing.
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No. 77212-1-1/21
decision on a petition for a writ of mandamus. Land Title of Walla Walla, Inc. v.
Martin, 117 Wash. App. 286, 289, 70 P.3d 978(2003).
A
EPIC contends that the superior court erred by dismissing its mandamus
action against King County on the basis that EPIC had another plain, speedy,
and adequate remedy in the ordinary course of law. EPIC is incorrect.
Mandamus is an extraordinary remedy. Burp v. City of Seattle, 32 Wn.
App. 286, 289,647 P.2d 517(1982). "Mandamus is appropriate to compel a
government official or entity ``to comply with law." Euqster v. City of Spokane,
118 Wash. App. 383, 404, 76 P.3d 741 (2003)(quoting In re Pers. Restraint of
Dyer, 143 Wash. 2d 384, 398, 20 P.3d 907 (2001)).
To be granted mandamus it must be established that "the applicant has no
'plain, speedy and adequate remedy in the ordinary course of law,' RCW
7.16.170." Euqster, 118 Wash. App. at 402. "What constitutes a plain, speedy,
and adequate remedy depends on the facts of the case." Dress v. Dep't of
Corr., 168 Wash. App. 319, 337, 279 P.3d 875(2012)(quoting City of Olympia v.
Thurston County Bd. of Comm'rs, 131 Wash. App. 85, 96, 125 P.3d 997(2005))
Here, King County, in its capacity as a property owner, began construction
on the Justice Center Project pursuant to the MUP issued by SDCI. EPIC
nevertheless filed a mandamus action against King County, in the County's
capacity as a governmental entity, and sought to compel the County to comply
with the environmental checklist and mitigation conditions set forth in its MDNS.
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No. 77212-1-1/22
However, by engaging in construction on the Project, King County was not
acting in its capacity as a governmental entity but, rather, the County was acting
as a property owner. Operating in its property-owner capacity, King County was
not subject to a writ of mandamus.2°
Instead, the governmental entity responsible for King County's conduct
was the City—the governmental entity that issued the MUP authorizing King
County's construction on the Project. Therefore, if King County was not in
compliance with the MUP issued by the City, EPIC should have sought relief
from or against the City. Indeed, provisions set forth in the City's land use code
might allow for such enforcement.21
Given that the City might be subject to a mandamus action for King
County's alleged noncompliance with the MUP, EPIC does not establish that it
has no "plain, speedy and adequate remedy in the ordinary course of law." RCW
7.16.170. Accordingly, the superior court did not err by dismissing EPIC's
mandamus action against King County.22
20 EPIC relies upon two unpublished appellate opinions in support of its claim that it may
maintain a mandamus action against King County for alleged violations of MDNS conditions.
Neither opinion is persuasive. Thus, EPIC's reliance is unavailing.
21 SMC 23.90.002.B provides that it is a violation for any person to "use, construct, locate,
demolish, or cause to be used, constructed, located, or demolished any structure. . . in any
manner that is not permitted by the terms of any permit." Additionally, SMC 23.90.018.0 provides
that
[c]ivil actions to enforce this Title 23 shall be brought exclusively in Seattle
Municipal Court except for violations of permit terms related to Chapter 23.58C or
as otherwise required by law or court rule. The Director shall request in writing
that the City Attorney take enforcement action. The City Attorney shall, with the
assistance of the Director, take appropriate action to enforce this Title 23.
22 One of the bases on which the superior court dismissed EPIC's complaint was
improper venue—that EPIC's mandamus action should have been filed in the Seattle Municipal
Court, rather than in the King County Superior Court. The superior court erred by dismissing
EPIC's claim on this basis.
)
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No. 77212-1-1/23
B
EPIC next contends that the superior court erred by dismissing its
mandamus action against King County on the basis that EPIC did not establish
that it had standing under SEPA to bring its action.
In order for a writ of mandamus to issue, it must be established that the
petitioner is a "party beneficially interested." RCW 7.16.170. To demonstrate
standing under SEPA, a party must "show that the interest sought to be protected
is 'arguably within the zone of interests to be protected or regulated by the
statute or constitutional guarantee in question." Magnolia Neigh. Planning
Council v. City of Seattle, 155 Wash. App. 305, 312, 230 P.3d 190(2010)(internal
quotation marks omitted)(quoting Save a Valuable Env't(SAVE) v. City of
Bothell, 89 Wash. 2d 862, 866, 576 P.2d 401 (1978)).
EPIC's appellate briefing in support of its mandamus action does not detail
the organizational interests that it claims place it within SEPA's zone of interest.
Rather, the only portion of EPIC's appellate briefing in support of its argument is
the conclusory statement that "EPIC is...'aggrieved or adversely affected' as
required by RCW 36.70C.060 and has suffered an injury in fact within SEPA's
RCW 7.16.160 sets forth the grounds for granting a writ of mandamus. The provision
reads: "Grounds for granting writ. It may be issued by any court, except a district or municipal
court, to any inferior tribunal, corporation, board or person, to compel the performance of an act
which the law especially enjoins as a duty resulting from an office, trust or station." RCW
7.16.160 (emphasis added).
Thus, a writ of mandamus cannot be issued by a municipal court. This includes the
Seattle Municipal Court. Accordingly, the superior court erred by dismissing EPIC's complaint on
the basis of improper venue.
Our determination that the superior court erred by basing its dismissal order on improper
venue does not affect our determination that the superior court properly dismissed EPIC's
complaint for other reasons.
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No. 77212-1-1/24
zone of interests." Such conclusory language is insufficient to establish standing.
The superior court did not err by dismissing EPIC's mandamus action against
King County on this basis.23
IV
Respondents King County and Balfour Beatty request an award of
attorney fees and costs pursuant to RCW 4.84.370.
The predicate for an award of reasonable fees and costs incurred in
appeal of decisions regarding development permits is established by statute.
RCW 4.84.370 reads:
(1) Notwithstanding any other provisions of this chapter, reasonable
attorneys' fees and costs shall be awarded to the prevailing party or
substantially prevailing party on appeal before the court of appeals
or the supreme court of a decision by a county, city, or town to
issue, condition, or deny a development permit involving a site-
specific rezone, zoning, plat, conditional use, variance, shoreline
permit, building permit, site plan, or similar land use approval or
decision. The court shall award and determine the amount of
reasonable attorneys'fees and costs under this section if:
23 EPIC contends that the superior court erred by denying its request to amend its
complaint. We disagree. EPIC's request to amend its complaint constituted two sentences
embedded in its response to King County's motion to dismiss. This did not comply with state and
local rules governing motion practice. See CR 7(b)(1) and LCR 7(b)(5). Thus, the superior court
did not err by denying EPIC's plainly nonconforming request to amend its complaint
EPIC next contends that the superior court erred by denying its request for a writ of
mandamus ordering SDCI to issue a proper notice of appeal. We disagree. "Mandamus is an
appropriate means to compel a state official 'to comply with law when the claim is clear and there
is a duty to act" Paxton v. City of Bellingham, 129 Wash. App. 439, 444, 119 P.3d 373(2005)
(quoting Dyer, 143 Wash. 2d at 398). Again, RCW 36.706.130 requires that a notice of decision
provide "the procedures for administrative appeal, if any." As analyzed, the challenged SDCI
decisions were Type II decisions not subject to administrative appeal. Because there were no
procedures established by ordinance authorizing administrative appeal of the challenged SDCI
decisions, RCW 36.706.130 did not impose on SDCI a clear legal duty to issue any notice.
Because SDCI had no clear legal duty to act, the superior court did not err by dismissing EPIC's
mandamus claim against SDCI.
EPIC next contends that the superior court erred by not enforcing an alleged statutory
duty of SDCI pursuant to the Declaratory Judgment Act. EPIC presents no decisional authority or
analysis in support of this contention. Accordingly, we decline to consider it Cowiche Canyon
Conservancy, 118 Wash. 2d at 809.
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(a) The prevailing party on appeal was the prevailing or
substantially prevailing party before the county, city, or town, or in a
decision involving a substantial development permit under chapter
90.58 RCW,the prevailing party on appeal was the prevailing party
or the substantially prevailing party before the shoreline[s] hearings
board; and
(b) The prevailing party on appeal was the prevailing party or
substantially prevailing party in all prior judicial proceedings.
Here, King County, as the owner of the property in question, sought a
permit from the City of Seattle. King County and Balfour Beatty are the prevailing
parties on appeal. They prevailed at the superior court. They also prevailed
before the SDC1 decision-maker and the City's Hearing Examiner. Accordingly,
King County and Balfour Beatty are entitled to an award of appellate court
attorney fees and costs.24 Upon a proper application, a commissioner of our
court will enter an appropriate order.
Affirmed.
We concur:
24 EPIC filed a motion to strike respondents' statement of additional authorities. Upon
consideration, EPIC's motion to strike is denied.
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