Bsre Point Wells, Lp v. Snohomish County

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BSRE POINT WELLS, LP, a Delaware
limited partnership, No. 80377-8-I
Appellant, DIVISION ONE
v.
UNPUBLISHED OPINION
SNOHOMISH COUNTY,
Respondent,
CITY OF SHORELINE, a Washington
municipal corporation,
Respondent-Intervenor.
CHUN, J. — BSRE Point Wells, LP applied to build a mixed-use “Urban
Center” in Snohomish County. A Hearing Examiner denied BSRE’s application,
finding substantial conflicts between the application and the county code. The
Hearing Examiner ruled that BSRE could not reactivate its application. The
Snohomish County Council (County Council) affirmed the Hearing Examiner’s
rulings on appeal. BSRE then petitioned for review in King County Superior
Court under the Land Use Petition Act (LUPA). The superior court determined
that BSRE could reactivate its application before the Hearing Examiner and
declined to rule on BSRE’s other requests for relief. BSRE proceeded to
reactivate its application. BSRE appeals the superior court’s refusal to rule on
the interpretation of two provisions of the county code as well as the Hearing
Citations and pin cites are based on the Westlaw online version of the cited material.
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Examiner’s and County Council’s decisions that BSRE’s application conflicted
with those provisions. We dismiss the appeal as unripe.
I. BACKGROUND
In 2009 and 2010, the County Council revised its comprehensive plan for
the County, adopted Chapter 30.34A SCC,1 and rezoned Point Wells, the land at
issue, as an Urban Center. In 2011, BSRE applied2 to develop Point Wells as a
mixed-use Urban Center with residential and commercial buildings.
In 2013, the County sent a Review Completion Letter to BSRE, noting
numerous conflicts between the application and the county code. Over the next
five years, BSRE requested three extensions of the application deadline, which
requests the County granted, resulting in a final deadline of June 30, 2018. In
April 2017, BSRE resubmitted its application.
In October 2017, the County sent another Review Completion Letter to
BSRE saying that, while the applicant had addressed a handful of the conflicts
noted in the April 2013 letter, it failed to address most of the problems. The
County also said that it would potentially recommend a denial of the application
as it stood and that it would grant no more extensions “absent extraordinary
circumstances.” The County requested that BSRE resubmit its application by
January 8, 2018 so that the County would have enough time to review the
1
This chapter of the County Code regulates Urban Center development.
2
BSRE submitted multiple applications in 2011 but this opinion refers to them as
one combined application.
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materials for consistency, draft a recommendation for the Hearing Examiner, and
schedule a hearing before the application expiration date of June 30, 2018.
BSRE did not resubmit its application materials by January 8. On January
9, the County sent a letter informing BSRE that it was starting the final review
process based on the materials it had received. On January 12, BSRE
requested a fourth extension, to June 30, 2020, which the County denied. On
April 17, the County issued a Staff Recommendation Letter recommending that
BSRE’s application be denied based on eight substantial conflicts. On April 27,
BSRE submitted revised application materials. The County reviewed the
materials and issued a supplemental recommendation on May 9 determining that
BSRE had resolved three out of the eight issues but still recommending denial.
The Hearing Examiner for the County held an open hearing on BSRE’s
application, which ran from May 16 to 24, 2018. The Hearing Examiner
concluded that it would terminate the application based on the five substantial
conflicts with the county code.
BSRE moved for reconsideration and for clarification about whether the
Hearing Examiner’s decision was granted with prejudice. A repealed county
code provision in effect at the time of BSRE’s first application, former
SCC 30.34A.180(2)(f) (2007), stated:
The hearing examiner may deny an urban center development
application without prejudice pursuant to SCC 30.72.060. If denied
without prejudice, the application may be reactivated under the
original project number and without additional filing fees or loss of
project vesting if a revised application is submitted within six months
of the hearing examiner’s decision. In all other cases a new
application shall be required.
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(Emphasis added.) The Hearing Examiner decided that this provision was not
part of BSRE’s vested rights and that it lacked the authority to allow BSRE to
reactivate its application under the repealed provision.3 The Hearing Examiner
reaffirmed its decision on termination and clarified that the decision was without
prejudice.
BSRE appealed to the County Council. Following a closed hearing, the
County Council affirmed the Hearing Examiner’s decision.
BSRE then appealed to King County Superior Court under LUPA, seeking
reversal of the denial of BSRE’s application, an extension of the deadline, a
finding that its development rights vested to the code provision allowing for
reactivation of its application, and a reversal of all related findings of fact and
conclusions of law. See chapter 36.70C RCW.
In June 2019, the superior court reversed the Hearing Examiner’s
conclusion that BSRE did not have a vested right to the reactivation provision of
the code. The superior court determined that BSRE could reactivate its
application by submitting revised materials within six months of the court’s
decision. The superior court declined to address the remaining issues,
concluding that doing so was unnecessary given its ruling.
BSRE appealed and moved for a stay of enforcement of the superior
court’s ruling, seeking to delay the start of the six-month reactivation period. A
3 In Town of Woodway v. Snohomish County, our Supreme Court held that
BSRE’s development rights had vested to the county code as it existed the day the
company submitted a complete application. 180 Wn.2d 165, 175, 322 P.3d 1219(2014), abrogated by Yim v. City of Seattle, 194 Wn.2d 682, 451 P.3d 694 (2019).
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commissioner of this court denied the motion. BSRE revised its application
materials and submitted them within the six-month period.
II. ANALYSIS
The County says that because the superior court allowed BSRE to
reactivate its application, the case is not ripe for review. It thus asserts that
BSRE will either fully comply with the code, making this appeal moot, or BSRE
will not comply, leading to a new decision terminating the application, and that
termination decision would be a basis for appeal. Intervenor, the City of
Shoreline (Shoreline), adds that the appeal is not ripe because the superior court
did not rule on the conflicts issues, and thus there is nothing for us to review.4
BSRE does not explicitly argue that its claim is ripe but says we can reach the
merits because it satisfied the exhaustion requirements of LUPA and there is a
final judgment for us to address. We conclude that this case is not ripe.
A claim is ripe for review “if the issues raised are primarily legal, do not
require further factual development, and the challenged action is final.” State v.
Cates, 183 Wn.2d 531, 534, 354 P.3d 832 (2015) (quoting State v. Sanchez
Valencia, 169 Wn.2d 782, 786, 239 P.3d 1059 (2010)). In assessing ripeness,
courts also consider the hardship incurred by the appellant if the court refuses to
review the claim. Id.4
Shoreline also says that review is improper because BSRE was not “aggrieved”
by the superior court’s ruling granting reactivation. See Reynolds & Assoc. v. Harmon,
193 Wn.2d 143, 150–51, 437 P.3d 677 (2019) (“[f]or a party to be aggrieved, the
decision must adversely affect that party’s property or pecuniary rights”). But BSRE
does not challenge that portion of the trial court’s ruling. It challenges the trial court’s
refusal to decide the conflicts issue, which arguably does impact BSRE’s property and
pecuniary rights. We thus disagree with this argument by Shoreline.
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BSRE’s appeal is not ripe for review because the challenged decision is
not final and BSRE will not suffer a recognized hardship if this court denies
review. Granted, the issues raised are mainly legal: BSRE claims that the
Hearing Examiner and County Council interpreted two provisions of the county
code incorrectly. Also, because the issue involves statutory interpretation, and
because BSRE confirmed that its reactivated application is essentially the same
as its previous one, we presume no further factual development is needed at this
point.
But the challenged administrative decision is not final. BSRE has
reactivated its application before the Hearing Examiner. And we are unaware of
any outcome of that application.
BSRE also challenges the superior court’s decision, but as noted by
Shoreline, the court’s decision is not final. BSRE requested a number of
remedies, including a reversal of the conflicts decision and an order granting
reactivation. The superior court ruled only on the reactivation issue. It declined
to address the conflicts issues as well as others. The superior court’s order is
therefore not a final decision. BSRE contends that the superior court’s refusal to
rule on the conflicts issues was effectively a ratification of the County Council and
Hearing Examiner’s decisions, rendering the issue reviewable. But BSRE cites
no law to support this ratification theory, and the superior court noted the
possibility that the conflicts issue would come before it in the future depending on
the outcome of the reactivated application.
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Finally, because BSRE could reactivate its appeal, and did so, our refusal
to hear this case does not impose a hardship. If BSRE disagrees with the
outcome of its reactivated application, it can appeal. And if the reviewing body
agrees with BSRE, it can remand the issue for a decision consistent with its
holding. See RCW 30.70C.140 (LUPA empowers a court to remand a land use
decision “for modification or further proceedings”); SCC 30.72.120 (the county
code allows the County Council to remand a matter on appeal “to the hearing
examiner in accordance with the council’s findings and conclusions”). BSRE
says it would be “inequitable” to deny it the opportunity to cure its application
before a ruling on the merits but it has not explained why it is owed such an
opportunity. Dismissal here does not preclude BSRE from seeking a favorable
judgment in the future. Cf. Jafar v. Webb, 177 Wn.2d 520, 525, 303 P.3d 1042(2013) (finding hardship when the appellant risked dismissal before the trial court
if the supreme court did not address the appellant’s challenge to a fee order).
Relatedly, the County indicates that exhaustion of administrative remedies
is a part of the ripeness inquiry. For this proposition, it cites Thun v. City of
Bonney Lake, 164 Wn. App. 755, 762, 763, 265 P.3d 207 (2011) (“In
Washington, ripeness is often called ‘exhaustion of administrative remedies,’ but
this doctrine incorporates the ‘final decision’ requirement.”). While ripeness and
exhaustion are related, they are separate doctrines. See Estate of Friedman v.
Pierce County, 112 Wn.2d 68, 76, 768 P.2d 462 (1989) (“We have implicitly
recognized that exhaustion and ripeness are related concepts in the land use
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area.”). As the County contends, BSRE has failed to exhaust its administrative
remedies.
The exhaustion doctrine prevents courts from “entangling themselves in
abstract disagreements over administrative policies” and thus requires that an
administrative agency has a chance to render a final decision before the court
can weigh in. Thun, 164 Wn. App. at 761–62 (quoting Abbott Labs. v.
Gardner, 387 U.S. 136, 148–49, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967),
overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S. Ct. 980,
51 L. Ed. 2d 192 (1977)). An appellant need not exhaust administrative
remedies if doing so would be futile. Id. at 763. But establishing futility is a
“substantial burden” because “strong public policies” favor the exhaustion
doctrine. Presbytery of Seattle v. King County, 114 Wn.2d 320, 338, 787 P.2d
907 (1990). Futility is “rare” and cannot be speculative. Buechler v. Wenatchee
Valley Coll., 174 Wn. App. 141, 154, 298 P.3d 110 (2013).
BSRE contends that it exhausted its administrative remedies by appealing
the Hearing Examiner’s decision to the County Council; it says the resultant
decision is final and reviewable. But BSRE has not exhausted its administrative
remedies as it has reactivated its application. Again, we are unaware of any
outcome of that application. BSRE says that waiting for a decision on the
reactivated application is futile because it changed little in its application. But this
argument is speculative; there is still a possibility that the Hearing Examiner’s
decision will differ from its last. BSRE has not met the substantial burden of
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establishing futility. We choose to avoid “entangling” ourselves in an
administrative agency matter before the Hearing Examiner has reached a
determination on the new application.
We dismiss this appeal.
WE CONCUR:
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