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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

VERN F. SIMS FAMILY LIMITED
PARTNERSHIP I, GILBERT FAMILY                         No. 73608-6-1
PROPERTIES, LLC, and LDV
BURLINGTON PROPERTIES, LLC,                           DIVISION ONE


                    Appellant,                        UNPUBLISHED OPINION




CITY OF BURLINGTON, a municipal
corporation in Washington, and COSTCO
WHOLESALE CORPORATION, a
Washington Corporation,

                     Respondents.                     FILED: July 5, 2016


      Appelwick, J. — Establishment of an assessment reimbursement area

pursuant to chapter 35.72 RCW is a land use decision. Sims's challenge to the

assessment reimbursement area provisions was untimely under the Land Use

Petition Act's1 21 day statute of limitations.   Dismissal of those claims with

prejudicewas proper under LUPA. Sims's remaining claims are not ripefor review.

We affirm.




        Chapter 36.70C RCW
No. 73608-6-1/2




                                 BACKGROUND

      This case involves the application of chapter 35.72 RCW, which establishes

the authority and procedures for reimbursement contracts. These are contracts

entered into between a city and property owners who are developing their property.

See RCW 35.72.010. The contracts enable developing property owners to be

reimbursed for any excess benefit created by street improvements they make

during the course of developing their property. ]cL Other property owners who

subsequently develop their property and benefit from the improvements pay a

reimbursement share. ]d_, Specifically,

      (1). . . [T]he contract may provide for the partial reimbursement to
      the owner or the owner's assigns for a period not to exceed fifteen
      years of a portion of the costs of the project by other property owners
      who:

             (a) Are determined to be within the                  assessment
       reimbursement area pursuant to RCW 35.72.040;

            (b) Are determined to have a reimbursement share based
      upon a benefit to the property owner pursuant to RCW 35.72.030;

             (c) Did not contribute to the original cost of the street project;
      and

             (d) Subsequently develop their property within the period of
      time that the contract is effective and at the time of development were
      not required to install similar street projects because they were
      already provided for by the contract.

             Street projects subject to reimbursement may include design,
      grading, paving, installation of curbs, gutters, storm drainage,
      sidewalks, street lighting, traffic controls, and other similar
      improvements, as required by the street standards of the city, town,
      or county.
No. 73608-6-1/3




Id. The reimbursement is a pro rata share of construction and reimbursement of

contract administration costs of the street project.     RCW 35.72.030.          A city

determines the reimbursement share by using a method of cost apportionment

which is based on the benefit to the property owner from such project.           RCW

35.72.030. The procedures for reimbursement contracts are governed by RCW

35.72.040:


      The procedures for assessment reimbursement contracts shall be
      governed by the following:

            (1)    An assessment reimbursement area shall be
      formulated by the city, town, or county based upon a determination
      by the city, town, or county of which parcels adjacent to the
      improvements would require similar street improvements upon
      development.

             (2)    The preliminary determination of area boundaries and
      assessments, along with a description of the property owners' rights
      and options, shall be forwarded by certified mail to the property
      owners of record within the proposed assessment area. If any
      property owner requests a hearing in writing within twenty days of
      the mailing of the preliminary determination, a hearing shall be held
      before the legislative body, notice of which shall be given to all
      affected property owners.        The legislative body's ruling is
      determinative and final.

            (3)    The contract must be recorded in the appropriate
      county auditor's office within thirty days of the final execution of the
      agreement.

             (4)    If the contract is so filed, it shall be binding on owners
      of record within the assessment area who are not a party to the
      contract.

      This case also requires us to make a determination as to whether certain

actions taken by a city constitute land use decisions for the purposes of the Land

Use Petition Act (LUPA). LUPA governs the process for judicial review of land use
No. 73608-6-1/4




decisions made by local jurisdictions. RCW 36.70C.010. Under LUPA, a "land

use decision" is defined as a


      [FJinal 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:



              (b) An interpretative or declaratory decision regarding the
       application to a specific property of zoning or other ordinances or
       rules regulating the improvement, development, modification,
       maintenance, or use of real property; and

              (c) The enforcement by a local jurisdiction of ordinances
       regulating   the   improvement,   development,       modification,
       maintenance, or use of real property.

RCW 36.70C.020(2). Under LUPA, a petition challenging a land use decision must

be filed within 21 days of the land use decision, or the petition is barred as untimely

and the court has no jurisdiction. RCW 36.70C.040(3); Kniahtv. Citvof Yelm, 173

Wn.2d 325, 337, 267 P.3d 973 (2011).

                                       FACTS

       This dispute began when Costco Wholesale Corporation proposed to

construct a new store in the City of Burlington (City) near Interstate 5 (I-5). The

City reviewed Costco's proposal, including a traffic impact study, and found that

the proposal did not have a probable significant adverse impact on the

environment.      Consequently, on November 24, 1999, it issued a Mitigated

Determination of Nonsignificance (MDNS), which included conditions to mitigate

any adverse impacts of the project. One condition, condition 14, mandated that

Costco work with the City to complete certain traffic mitigation measures (mostly
No. 73608-6-1/5




improvements to 1-5 and George Hopper Road). The MDNS noted, "The applicant

may elect to pay for the required mitigation up front and the City may be able to

initiate a pay back agreement based on legal requirements, so that as new projects

come in, each project will be required to compensate COSTCO directly based on

peak hour trip generation for a fifteen year period."

       On December 9, 1999 the city council introduced and passed ordinance

1419. The ordinance amended Burlington Municipal Code (BMC) 12.28.010 to

establish standards and procedures for reimbursement agreements for street

projects.   It stated that now the city engineer may require right-of-way

improvements as a prerequisite to further property development, and that it may

establish a timeline for those improvements. It also added a provision that tracked

the language of RCW 35.72.020, stating that the City may enter into

reimbursement contracts with property owners. This type of contract is also known

as a "latecomer agreement."

       On February 28, 2000 the City granted Costco a permit to construct its

facility. On August 1, 2000 Costco received a temporary certificate of occupancy.

Costco built its store and made the traffic improvements.            Costco spent

approximately $1.7 million on the project, which created additional traffic capacity

at the George Hopper Road/l-5 intersection beyond what was necessary to

mitigate the impact of the development.
No. 73608-6-1/6




      Then, on July 7, 2006,2 the city attorney presented a resolution enabling the

City to enter into a latecomer agreement with Costco and a final draft of the

latecomer agreement to the city council. The city attorney presented the proposed

resolution at a city council meeting on July 13, 2006. A motion was made to

approve the resolution. All approved the motion. The resolution was formally

approved as resolution 13-2006.       The resolution established a preliminary

assessment reimbursement area pursuant to chapter 35.72 RCW, resolved that a

preliminary determination of area boundaries and assessments of the affected

property owners' rights and options would be forwarded to the property owners in

order to comply with the provisions of RCW 35.72.040(2), and resolved that a

hearing would be held if requested by an affect property owner within 20 days of

the notice being mailed.

       Pursuant to RCW 35.72.040, in March 2007, property owners situated

within the preliminary assessment reimbursement area were notified via certified

mail. Several property owners requested a hearing. The hearing took place on


      2 During these intervening years, Transportation Solutions, Inc. (TSI)
performed post-occupancy traffic studies of the relevant intersection, Costco
worked to satisfy all of the requirements of the MDNS, and TSI prepared draft
latecomer agreements. On May 25, 2004, a new Burlington City Attorney
contacted counsel for Costco.       He noted that although Costco had been
operational for several years and although neighboring developments had since
been constructed or were under construction and benefiting from the road
improvements, until recently, Costco had failed to actively pursue the latecomer
agreement. He stated that he was concerned about Costco's ability to be
reimbursed at that point. And, he noted that he was unaware of an agreement
between the City and Costco that would require the City to enter into a latecomer
agreement with Costco. Communication continued between the City and Costco.
On August 6, 2004, the City noted that it had reviewed a proposed latecomer
agreement from Costco and made comments.
No. 73608-6-1/7




August 23, 2007. The city attorney spoke and indicated that the city council would

make a decision after hearing from property owners and Costco. And, he noted

that whatever decision the city council made would be final. Attorney Tom Moser

appeared and spoke on behalf of Vern F. Sims Family Limited Partnership and the

Gilbert Family Properties LLC (collectively "Sims") which own property in the

assessment area. He requested that Sims's zone designation be revised to a

lower assessment rate.3

      After Costco and property owners spoke, the city attorney stated that the

city council could accept the property owners' appeals, ask for further studies, or

make a decision immediately. City council members asked several questions and

suggested that the city attorney respond to their questions at the next city council

meeting. City council members agreed to continue to the item to the next city

council meeting.

       The issue was raised again at the city council meeting on October 8, 2009—

over two years later. Moseragain spoke on behalfof Sims. He noted that because

Costco was constructed in Burlington 10 years earlier, it was too late to ask

remaining property owners to pay. The city attorney clarified that the city council

was to decide whether to approve the appeal of the specific property owners by

removing them from the assessment area—not whether to generally approve the

latecomer agreement. The city attorney noted that following a decision by the city

council on the assessment area, he would prepare conclusions of law and findings

      3 TSI's traffic study used a traffic model, which broke the City into various
zones to determine how many vehicle trips from each zone would use the street
improvements. The assessment rate is determined accordingly.
No. 73608-6-1/8




of fact and bring them before the council at the next regular meeting.        And,

following that, the city council would consider the latecomer agreement itself. The

city council voted to deny the property owners' appeals.

      As of February 10, 2011, findings and conclusions had not yet been entered

and were discussed at that city council meeting. The city attorney appeared at the

city council meeting and noted that although the public hearing was held on

October 8, 2009, two parties requested time to speak to council members about

the latecomer agreement issue. Council members elected to hear the two parties

speak. The two parties—including Moser who represented Sims—requested that

the Council hold a new public hearing, because two members of the current City

Council were not in office when the October 2009 hearing was held and that issues

of delay and intervening development raised at the hearing were not addressed in

the proposed findings and conclusions. At that point, the city council voted to

approve the findings offact and conclusions oflaw as presented. The findings and

conclusions stated that the property owners' appeals were denied.4

       On April 8, 2011, Sims filed a complaint for declaratory judgment, writ of

certiorari, and injunctive relief in Skagit County Superior Court. Costco filed an

answer to Sims's complaint on September 22, 2011. It alleged, among other

things, that Sims's complaint was untimely. On November 13, 2013, Sims moved


      4 But, it also concluded that certain properties—including Sims's—should
be assigned to a different transportation analysis zone for assessment purposes,
as requested by Moser, because the completion of a road in the area altered the
traffic analysis. When the findings and conclusions were signed and attested by
Greg Thramer, Finance Director/City Clerk, on June 9, 2011, the only change was
to the date. The blank "day of February" became the "9th day of June."

                                         8
No. 73608-6-1/9




for partial summary judgment, challenging the City's failure to give proper notice

to property owners pursuant to RCW35.72.030 and RCW35.72.040. On February

21, 2014, Sims moved for summary judgment, arguing that RCW 35.72.020 has a

15 year statute of limitations that precludes Costco from now looking to latecomers

for reimbursement. On April 22, 2014, Sims filed its third motion for summary

judgment, arguing that Costco's improvements were not required by any ordinance

as mandated by RCW 35.72.010. On December 17, 2014, Sims filed its fourth

motion for summary judgment, claiming that the City's resolution 13-2006 and

proposed latecomer agreement do not provide a benefit to Sims's property as

required by RCW 35.72.030. The trial court denied Sims's first four motions.

        Then, on February 20, 2015, Costco filed a motion to dismiss, claiming that

Sims's claims are subject to and barred by LUPA, because it requires that any

petition for review be brought within 21 days of a final land use decision. On June
12, 2015, the trial court dismissed Sims's complaint as time barred. It reasoned
that the matter was subject to LUPA, and that the final decision for purposes of
calculating when the LUPA statute of limitations began to run was when the city
council rendered its oral decision denying Sims's appeal. Sims appeals. As of the

date oforal argument in this appeal, the latecomer agreement has not been signed

or filed.

                                   DISCUSSION


        This court reviews the trial court's ruling on a motion to dismiss de novo.

Becker v. Cmtv. Health Svs., Inc., 184 Wn.2d 252, 257, 359 P.3d 746 (2015).

Whether the trial court properly granted Costco's motion to dismiss involves
No. 73608-6-1/10




questions of statutory interpretation.    This court reviews issues of statutory

interpretation de novo. Cerillo v. Esparza, 158 Wn.2d 194, 199, 142 P.3d 155

(2006). Additionally, when a superior court acts in an appellate capacity, as it did

in this case by reviewing the city council's decision, the superior court has only

jurisdiction that is conferred by law. Conom v. Snohomish County, 155 Wn.2d 154,

157,118 P.3d 344 (2005). Thus, before a superior court may exercise its appellate

jurisdiction, statutory procedural requirements must be satisfied,      jd. A court

lacking jurisdiction must enter an order of dismissal. Id. A petition under LUPA

must be filed within 21 days of the land use decision or the petition is barred and

the court has no jurisdiction. RCW 36.70C.040(3); Knight, 173 Wn.2d at 337.

Whether a court may exercise jurisdiction is also a question of law subject to de

novo review. ]cL at 336.

   A. Land Use Decision

       First, Sims asserts that LUPA does not apply, because RCW 35.72.010 and

LUPA conflict. It asserts that because a final decision is rendered under RCW

35.72.040(2) that there can be no appeal leading to a final decision for purposes

of LUPA.

       The preliminary determination ofarea boundaries and assessments may be

appealed by property owners within the proposed assessment area by requesting
a hearing within 20 days of mailing ofthe notice. RCW 35.72.040(2). If no property

owners appeal the preliminary determination of area boundaries and

assessments, the preliminary determination becomes final.                 See RCW

35.72.040(2). If an appeal is filed, the decision on appeal is the final decision. ]dL


                                          10
No. 73608-6-1/11




A land use decision is reviewable under LUPA only if it is a final determination by

the local body or officer with the highest level of authority to make the

determination.5 RCW 36.70C.020(2). Therefore, the two statutes can be read in

harmony. RCW 35.72.040 advances LUPA's goals by making it clear when a

decision is final and ripe for appeal under LUPA. Moreover, Sims provides no

authority to support its assertion that the two statutes conflict.

       Sims also claims that its action cannot be time barred under LUPA, because

the City has not yet made a land use decision that triggers LUPA. Therefore, the

next question we must answer is whether the city council made a land use decision

that triggered LUPA.

       A "land use decision" means a final determination on a declaratory decision

regarding the application to a specific property of other ordinances or rules

regulating the development of real property. RCW 36.70C.020(2)(b). The nature

of the decision made by the city council is made clear by what was set out in the

city council's findings of fact and conclusions of law and by what issues and
challenges were raised by property owners both in their written comments and
orally at the city council hearing. The approval of the assessment area was a final

decision under RCW 35.72.040. The city council's determination mandated that

should Sims or others decide to develop their property within the assessment area

during the period of the latecomer agreement, once executed, they would have to


       5 RCW 35.72.040(2) states that the "legislative body's" ruling regarding
assessments is determinative and final.         Sims does not contend that the city
council is not the local body with the highest level of authority to make the
determination.


                                           11
No. 73608-6-1/12




pay assessments for benefits received pursuant to the latecomer agreement.

Clearly, this was a land use decision.

       Sims asserts that the cases Costco relied on below and on appeal show

that LUPA applies only when a land use agency has required a property owner to

pay a specific fee. Sims argues that, therefore, LUPA will not apply until Sims

seeks a permit to develop its property, because that is when the specific latecomer

fee will be calculated and imposed.

       We agree that a final land use decision for LUPA purposes is made when a

property owner applies for a permit, and the City calculates and imposes the

property owner's actual assessments. See RCW 36.70C.020(2)(a); see, e.g.,

James v. Countv of Kitsap, 154 Wn.2d 574, 586,115 P.3d 286 (2005) (holding that

the imposition of impact fees as a condition on the issuance of a building permits
was a land use decision subject to LUPA); Citv of Federal Way v. Town &Country

Real Estate, LLC, 161 Wn. App. 17, 35-36, 252 P.3d 382 (2011) (challenge of a

hearing examiner's decision to strike traffic impact mitigation payment properly
brought under LUPA); United Dev. Corp. v. Citv of Mill Creek, 106 Wn. App. 681,
686-87, 26 P.3d 943 (2001) (holding that the imposition of impact fees as a

condition of preliminary plat approval is a land use decision triggering LUPA). But,
those cases do not support the proposition that the imposition of a fee is the only

decision which can trigger a LUPA appeal.

    B. The Decision Date

       Sims also argues that even if the city council made a land use decision and
LUPA applies, the statute of limitations did not begin to run when the city council

                                         12
No. 73608-6-1/13




made its oral decision in 2009. Sims argues that the statute of limitations does not

begin to run until there is a written decision. It argues that this did not occur until

June 9, 2011 when the city clerk signed the written findings of fact and conclusions

of law. Therefore, the next question we must answer is when the land use decision

denying Sims's appeal was made for LUPA purposes.

       As stated above, a LUPA petition must be filed within 21 days of the

issuance of a final determination by the local jurisdiction. RCW 36.70C.040(3). A

local jurisdiction has issued a land use decision when one of the following occurs:

              (4) For the purposes of this section, the date on which a land
       use decision is issued is:

               (a) Three days after a written decision is mailed by the local
       jurisdiction or, if not mailed, the date on which the local jurisdiction
       provides notice that a written decision is publicly available;

              (b) If the land use decision is made by ordinance or resolution
       by a legislative body sitting in a quasi-judicial capacity, the date the
       body passes the ordinance or resolution; or

              (c) If neither (a) nor (b) of this subsection applies, the date of
       the decision is entered into the public record.

RCW 36.70C.040(4). In HabitatWatch v. Skagit Countv, 155 Wn.2d 397,408 n.5,

120 P.3d 56 (2005), the Washington Supreme Court expressly discussed when a

decision is likely to fall into subsection (c). The Habitat court explained that

subsection (c) likely applies when a decision is neither written nor made by

ordinance or resolution under subsection (a) or (b). 155 Wn.2d at 408 n.5. It noted

that this would include a decision "made orally at a city council meeting" which

issues "when the minutes from the meeting are made open to the public or the

decision is otherwise memorialized such that it is publicly accessible." la\



                                          13
No. 73608-6-1/14




       Then, in Northshore Inv'rs v. Citv of Tacoma, 174 Wn. App. 678, 691, 301

P.3d 1049 (2013), the court considered facts similar to those contemplated by the

Habitat court. The Northshore court considered whether a city council's oral vote

to deny Northshore's appeal of a rezone modification was a final land use decision

triggering LUPA's statute of limitations. 174 Wn. App. at 681-82. Or, whether the

final decision issued after the city clerk later mailed a written notice to interested

parties, id at 689.

       At the city council meeting, counsel for Northshore was present. ]d. at 685.

The city council orally voted on a motion and ultimately denied the appeal. ]d_.

Directly afterthe meeting, a video recording ofthe hearing was posted on the City's

website, a DVD (digital video disc) copy of the video was delivered to the public

library, and the voting record and a closed-caption transcript of the hearing were

made available on the city's website. Id, at 685-86. The clerk mailed a written

notice of appeal to the parties two days later, \_± at 686. The Northshore court

ultimately held that the land use decision issued prior to the written notice of

appeal—when the decision was entered into the public record. Id. at 695. It noted

that no further action was required to make the oral vote a final decision. Id.

       In so holding, the Northshore court distinguished itselffrom Hale v. Island

Countv, 88 Wn. App. 764, 946 P.2d 1192 (1997). Id at 690-91. There, the court

held that when a board of county commissioners made an oral decision and then

mailed a written decision 15 days later, the written decision triggered RCW

36.70C.040, because the writing itselfwas the decision. Hale, 88 Wn. App. at 768.

The Hale court reasoned that the written decision was the final decision, because


                                          14
No. 73608-6-1/15




it was prepared in advance and presented to the board for approval. Id. at 769.

When the board voted to approve, it signed the document, jd. The document was

not written after the decision had been made. jd.

       The facts here are more similar to those in Northshore than in Hale. Here,

the city council was not presented with a written decision prior to its oral ruling

during the October 2009 meeting. Sims argues that Northshore is distinguishable,

because there, the written notice merely repeated what the city council had already

decided. Sims then makes a conclusory argument that the findings of fact here

are not a memorialization of an earlier decision, but rather the decision itself. But,

the October 2009 meeting minutes indicate that a motion was made to deny the

appeals of the property owners regarding the latecomer agreement and that the

motion carried. Therefore, the decision was made at the city council meeting,

nearly two years earlier than the findings and conclusions were signed by the city

clerk. In fact, the city attorney clarified at the October 2009 hearing that he would

prepare conclusions of law and findings of fact following a decision by the city

council at that meeting. And, like the oral decision in Northshore, the city council's

decision here was entered into the public record via the meeting minutes.

       We hold that the final decision triggering LUPA's statute of limitations was

the oral decision made by the city council at the October 8, 2009 city council

meeting.6 Consequently, dismissal of the action was proper. We need not address

       6 But even if Hale controlled, the findings and conclusions presented in
writing at the February 10, 2011 city council meeting were approved as submitted
at that meeting. Sims cites no authority for the proposition that the findings and
conclusions did not become enforceable until attested by the city clerk on June 9,
2011. Except for the date of attestation, the findings and conclusions attested were

                                          15
No. 73608-6-1/16




the denial of Sims's summary judgment motions further, because each could have

been denied on the same basis.


   C. Remaining Claims are Not Ripe

      Sims argues that no ordinance was in place requiring Costco to make the

improvements as required by RCW 35.72.010. Sims argues that due to the 15

year limitation in RCW 35.72.020, too much time has passed to allow a latecomer

agreement to be executed.      These arguments were untimely under LUPA to

challenge the assessment area. To the extent the arguments are addressed to

the legality of the latecomer agreement, the issues are not ripe for consideration.

No latecomer agreement had been executed at the time of this appeal.

      Sims also argues that the delay has prejudiced it because intervening

developments could have been assessed for the benefits they received, but were

not. It argues that had assessments been imposed on the other developments,

Sims may have been relieved from assessment under RCW 35.72.030 and RCW

35.72.040. Sims also argues that all of the excess trip capacity created by Costco

has been consumed such that no benefit remains available for which it could be

assessed. These arguments address the appropriate amount of an assessment

that has not yet been made. They are not ripe for review.




identical to those approved February 10. Sims provides no authority for the
proposition that no decision occurred until the city clerk attested a written version
of the motion that passed. Therefore, whether the final decision was rendered on
October 8, 2009 or on February 20, 2011, Sims's lawsuit, filed April 8, 2011, was
untimely under LUPA to raise challenges to the findings and conclusions creating
the assessment zones.


                                         16
No. 73608-6-1/17




      The record demonstrates that traffic capacity ebbs and flows based on

many factors other than traffic generated by property development in the

assessment area. The challenge to whether a benefit is conferred can be made

at the time of the imposition of assessments during the permit process and is

subject to LUPA. This challenge might also be available independent of a permit

application if it could be shown that no benefit is possible to anyone in the

transportation analysis zone for the duration of the reimbursement assessment

contract. Again, because no latecomer agreement has been executed, these

issues are not ripe for our consideration.

      We affirm.




WE CONCUR:




                                         17
