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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                    DIVISION ONE

ARTUR AND MARGARET ROJSZA,                      No. 69259-3-1


                    Respondents,



CITY OF FERNDALE, a Washington
municipal corporation,                          UNPUBLISHED OPINION

                    Appellant.                  FILED: April 7, 2014


      Verellen, J. — This appeal, brought pursuant to the Land Use Petition Act

chapter 36.70C RCW, concerns a dispute between the City of Ferndale (City) and Artur

Rojsza, a homeowner who remodeled his house for years without a permit, then

repeatedly exceeded the scope of his permit despite the City's ongoing enforcement

actions. When the City required Rojsza to apply for a new permit and to provide a

$30,000 performance bond, Rojsza appealed to a hearing examiner, who concluded his

appeal was untimely. The Whatcom County Superior Court reversed. The City

appeals. We conclude that there was no final administrative decision by the City and

that Rojsza's appeal is, accordingly, premature. We reverse and remand for dismissal.

                                         FACTS


      In 2005, Rojsza began to remodel his Ferndale home without obtaining a building

permit. In 2008, he started building an adjoining clock tower, also without a permit. City

of Ferndale officials issued Rojsza a notice of violation on September 18, 2009. The
No. 69259-3-1/2


City informed Rojsza that it would undertake a criminal enforcement action if Rojsza did

not meet with its development personnel to obtain building permits. Rojsza did not

comply.

       In December 2009, the City initiated a criminal enforcement action. In

conjunction with the enforcement, Ferndale prosecutor David Nelson informed Rojsza's

counsel by letter that the City planned to require Rojsza to hire a structural engineer and

to apply for a building permit. Rojsza agreed to take these steps and thereafter applied

for a permit. Rojsza stated in his application that he would bring the earlier remodeling

work into compliance and that he planned to complete the clock tower and make other

additions to the southern side of the home. The City granted the permit, but Rojsza's

subsequent construction work exceeded the scope of the permit.

       On July 29, 2010, Jori Burnett, the City's community development director,

issued a stop-work order requiring Rojsza to immediately cease work and provide

engineering drawings to allow a full structural inspection. Rojsza agreed to submit

updated plans by August 20. The City lifted the stop-work order. The City later agreed

to extend the August 20 deadline until the end of October, then subsequently extended

the deadline until May 2011.

       In April and early May 2011, Burnett asked Rojsza for an update. Rojsza

informed Burnett that the cited nonconforming portions of his earlier remodel work had

been corrected. However, Rojsza claimed that the clock tower and southern addition

were "not a part of our specific agreement" and that he did not have a time estimate for

completing the tower.1 Rojsza also requested that the City inspect the property.


      1 Clerk's Papers at 587.
No. 69259-3-1/3



       Burnett explained that an inspection was not possible because Rojsza had not

submitted engineering drawings as required. In a May 5, 2011 e-mail response, Rojsza

reiterated his view that "the structural part of the project that needs to be in compliance

is done" and that he considered the "completion of the clock tower addition" a "separate,

independent" project.2 Also on May 5, 2011, Rojsza telephoned the City's inspection

hotline to repeat his request for an inspection.

       In his May 9, 2011 e-mail, Burnett asserted that Rojsza had not met his

obligations under the February 19, 2010 criminal enforcement "settlement agreement":

              While you have continued to work on this project, you have done so
       without periodic inspections by your structural engineer or the City. ... As
       these inspections have not taken place, and as since the deadline for
       adherence to the settlement agreement has passed, the Prosecuting
       Attorney and City staff agree that the City has no other legitimate option
       but to pursue its enforcement action ....



              As per the building permit itself, more than 180 days has passed
       since your last inspection. We understand by your e-mails that you feel
       that you requested an inspection. However, due to the non-prescriptive
       method that you have elected to build this structure, the City had notified
       you that inspections would occur two weeks after structural drawings,
       architectural drawings, and a report from your structural engineer was
       submitted to the City. The last inspection that took place was October 18,
       2010. The next legitimate request for an inspection was last week, seven
       months after the last inspection, and that request did not include structural
       engineering or reports.131

       Two days later, Burnett sent Rojsza a letter explaining that the building permit

had expired. However, he indicated that the City would continue working cooperatively

with Rojsza if he met certain conditions:



       2 Clerk's Papers at 573.
       3 Clerk's Papers at 564.
No. 69259-3-1/4


             To bring what we consider to be final closure to this ordeal and to
      avoid costly and lengthy litigation, the City proposes the following:

                    - A penalty of $500 shall be paid by you ... for failure to
             comply with the intent of the agreement and to compensate the City
             for ongoing legal and administrative expenses.

              The City will delay further enforcement action . . . provided that all
      of the following occur:

                     - At or prior to June 1, 2011, your structural engineer shall
              conduct a structural observation of the entire structure, including all
              elements proposed by the building permit or built subsequent to
              that permit's issuance.

                    - Within ten days of this structural observation, a report and
              engineered plans from the structural engineer will be submitted to
              the City....



                     - An inspection will be requested at the time of submittal of
              the structural observation report....

                     - The City inspector shall conduct an inspection.141

Rojsza did not satisfy these conditions.

       In a June 16, 2011 letter to Rojsza, Burnett set out new requirements. These

required Rojsza to schedule an inspection by July 1, 2011 and to provide "building

permit applications and accurate structural, engineered, and architectural plans within

ten business days of the inspection."5

       Following the structural observation, the City communicated to Rojsza that

although "elements of the building . . . have been constructed without a permit," "[t]he

City will not cite the Rojszas for the existing violations" provided that Rojsza submit

architectural drawings by July 8, 2011 and engineering calculations and drawings by


       4 Clerk's Papers at 546-47.
       5 Clerk's Papers at 277.
No. 69259-3-1/5


August 5, 2011.6 The letter imposed a 21-day time limit for Rojsza to complete a siding
project on the house. Rojsza submitted the architectural plans as required, but did not

submit engineering drawings.

       On August 18, 2011, the City cited Rojsza for failing to apply for a building permit
for alterations to a structure or deviating from approved plans. On August 19, 2011,

Burnett reiterated in an e-mail to Rojsza's counsel that Rojsza needed to applyfor a

new building permit. The e-mail also stated that the City would "require that the Rojszas

submit a reasonable performance bond to ensure completion [of the siding work] within

the time limit set."7 Burnett explained that

       we would expect to receive a bond amount equal to 150% of the valuation
       the City determines on the building permit. ... We will expect to call that
       bond ifthe work is not completed [and inspected] within six weeks of
       permit issuance. ... Ifthe Rojszas are able to complete the work ahead of
       the deadline, the City would be able to release the bond.[8]

       In an August 31 e-mail to Rojsza's counsel, Burnett again stated that the City

would require a performance bond or assignment of savings:

             One thing that was missing from the application was an estimate of
      the cost of the work, including an estimate to complete the exterior siding
      for purpose of determining an appropriate bond/Assignment of Savings
      amount. . . . [In] the event that the Rojszas are unable or unwilling to
      complete the work in the six-week time frame after issuance, the City
      would be required to pay fair market value for both materials and labor in
      order to complete the workJ9]

       Rojsza submitted application materials. On September 7, 2011, the City

informed Rojsza's counsel that it was ready to issue the building permit but would


      6 Clerk's Papers at 1445.
      7 Clerk's Papers at 1448.
      8 Clerk's Papers at 1448.
      9 Clerk's Papers at 387.
No. 69259-3-1/6


require an assignment of funds or bond in the amount of $30,000. Rojsza opted not to

pick up the new permit. In follow-up e-mail correspondence with Rojsza's counsel,

Burnett stated that "from the City's perspective, there needs to be a new permit

regardless of whether the previous permit. .. expired or not" and that Rojsza could

avoid the bond requirement by simply completing the siding work.10

       On September 16, 2011, Rojsza filed an administrative appeal. The hearing

examiner concluded that Rojsza's appeal was untimely as to every issue except the

specific amount of the performance bond required. The hearing examiner upheld the

requirements that Rojsza obtain a new building permit and post a $30,000 performance

bond or assignment of savings.

       Rojsza appealed to the Whatcom County Superior Court pursuant to chapter

37.70C, the Land Use Petition Act (LUPA). The superior court reversed, concluding

that Rojsza's administrative appeal was timely, that the earlier permit did not expire, that

Rojsza's permit application was for an amendment to the original permit, and that the

City therefore lacked statutory authority to require a performance bond.

       The City appeals.
                                        ANALYSIS

       The threshold issue is whether there was any final administrative decision by the

City from which Rojsza could appeal. We conclude there was not. Rojsza's appeal is

therefore premature.




       10
            Clerk's Papers at 352.


                                             6
No. 69259-3-1/7


       When reviewing a superior court's decision under LUPA, this court stands in the

shoes of the superior court, reviewing the ruling below on the administrative record.11

On appeal, the party who filed the petition bears the burden of establishing one of the

following:

             "(a) The body or officer that made the land use decision engaged in
       unlawful procedure or failed to follow a prescribed process, unless the
       error was harmless;

               "(b) The 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;

             "(c) The land use decision is not supported by evidence that is
       substantial when viewed in light of the whole record before the court;

               "(d) The land use decision is a clearly erroneous application of the
       law to the facts;



              "(f) The land use decision violates the constitutional rights of the
       party seeking relief."[12]

       A "land use decision" is defined under LUPA as "a final determination by a local

jurisdiction's body or officer with the highest level of authority to make the

determination."13 A land use decision is "final" for purposes of LUPA when it "'leaves

nothing open to further dispute'" and '"sets at rest [the] cause of action between the

parties.'"14


      11 King County Dep't. of Dev. and Envtl. Servs. v. King County, 177 Wn.2d 636,
643, 305 P.3d 240 (2013).
       12 City of Federal Way v. Town & Country Real Estate, LLC, 161 Wn. App. 17,
36-37, 252 P.3d 382 (2011) (quoting RCW 36.70C. 130(1)).
        13 RCW 36.70C.020(2) (emphasis added).
        14 Durland v. San Juan County. 174 Wn. App. 1, 13, 298 P.3d 757 (2012)
(alteration in original) (quoting Samuel's Furniture. Inc. v. Dep't of Ecology, 147 Wn.2d
440, 452, 54 P.3d 1194 (2002)).
No. 69259-3-1/8


       The City's communication with Rojsza does not support the conclusion that any

individual letter or e-mail from Burnett was a final determination or decision requiring an

appeal. Rather, the correspondence reflected an ongoing collaborative effort to arrive

at mutually acceptable compliance. Such efforts are laudable, but only a genuine final

decision is appealable.

       Land use decisions become final and appealable only if the decision finally and

unequivocally settles the pending dispute. For example, in Durland v. San Juan

County, this court recognized a distinction between "an interlocutory decision" made by

an administrative official and a "final" decision, which "'leaves nothing open to further

dispute'" and "'sets at rest [the] cause of action between parties.'"15 "Mere decisions

about the process to be followed in making a land use decision are not final land use

decisions."16 This court has also held that "[a]n agency's letter does not constitute a

final order unless the letter clearly fixes a legal relationship as a consummation of the

administrative process" and that "[t]he letter must be clearly understandable as a final

determination of rights, and doubts as to the finality of such communications must be

resolved in favor of the citizen."17

       Most of the City's correspondence with Rojsza and his representatives was

cooperative in tone. Even though Rojsza repeatedly failed to meet the requirements

placed on him, the City repeatedly responded by changing the requirements and

moving back the deadlines. For instance, although the May 11, 2011 letter from Burnett



       15174 Wn. App. 1, 13-14, 298 P.3d 757 (2012) (alteration in original) (quoting
Samuel's Furniture, 147 Wn.2d at452).
       16 id, at 14.
       17 WCHS, Inc. v. City of Lvnnwood, 120 Wn. App. 668, 679, 86 P.3d 1169 (2004).
No. 69259-3-1/9


declares "your building permit has expired" and later refers to "expiration of the building

permit," the letter is entitled "RE: Potential Settlement Agreement" and proposes a new

settlement that could culminate in dismissal of the pending citation.18 The bulk of the

letter recites history and itemizes detailed conditions of a proposed settlement. The

May 11, 2011 letter provides no indication that the matter at issue has been "set at

rest."19

        A June 16, 2011 letter from Burnett details two violations and directs that "you

must now comply."20 The letter directs Rojsza to schedule an inspection and provide all

necessary information, including building permit applications and accurate plans. Upon

completion of these steps, if the City deems the application materials "to be complete

and accurate," the City "will make the building permit available to you for issuance."21

The letter also quotes the municipal code section governing "[ajmended construction

documents" and the section on "[suspension or revocation."22 Burnett recites "that it

now appears that the permit was issued on the basis of incorrect, inaccurate and

incomplete information" and that penalties will be imposed if Rojsza does not correct the

violations.23 This letter falls short of an express and direct communication of a decision

setting the dispute to rest.



           18 Clerk's Papers at 544-45.
           19 See Durland, 174 Wn. App. at 13 (guoting Samuel's Furniture, 147 Wn.2d at
452).
        20 Clerk's Papers at 277.
        21 Clerk's Papers at 277.
        22 Clerk's Papers at 278-79.
      23 Clerk's Papers at 279. Contrary to the City's argument, the letter makes no
express reference to a "new" permit. The multiple references to "permit application" and
making the "building permit available" could just as easily be read as referring to
No. 69259-3-1/10


        The September 7, 2011 e-mail from Burnett to Rojsza's attorney merely itemized

fees for the permit and advised that the permit was ready to pick up and must be picked

up by September 21, 2011, that the bond amount was $30,000, and that the owner had

six weeks to complete exterior siding. It is understandable that a cautious owner might

not want to take the risk of missing the appeal period. But consistent with the prior

correspondence, the September 7, 2011 e-mail is not a decision allowing an appeal as

it does not purport to resolve the dispute between the parties.

        The City has not yet set forth a clear and express final decision. The

communications back and forth were almost all informal, casual, and ongoing

negotiations of attempts to resolve the evolving dispute. None of the communications

expressly and clearly set forth a decision by the City purporting to set the dispute to

rest.


        Rojsza argues that this issue was not raised by the City before the hearing

examiner. But we review the decision of the hearing examiner de novo. The question

of whether the appeal was premature is squarely before us.24

        We decline to further address the status of the permit and of the enforcement

efforts of the City. The administrative appeal before the hearing examiner was


materials for an amended permit consistent with the code section on amended permits
quoted in the letter. Burnett recites that the existing permit was issued on incorrect,
inaccurate, and incomplete information but does not expressly state that the City has
revoked the existing permit.
       24 As counsel for Rojsza acknowledged at oral argument, this court is not bound
by any manifestation by the parties that a particular communication was an appealable
decision. See Perkins Coie v Williams, 84 Wn. App 733, 741, 929 P.2d 1215(1997)
(party could not "reduce the scope of issues" before reviewing court by stipulation);
Schneider v. Setzer, 74 Wn. App. 373, 375, 872 P.2d 1158 (1994) (parties' stipulation
regarding appealability and scope of appellate review did not bind appellate court as to
nature and scope of review of an arbitrator's decision).


                                             10
No. 69259-3-1/11


premature, the hearing examiner's decision has no binding effect, and the LUPA appeal

is appropriately dismissed.

      We reverse and remand for dismissal.




WE CONCUR:




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