                                             this ppihion Was filed for record
                                           at.                           //
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              ITE
       IN CLERKS OFFICE
®K=RSME COURT.STOTE OF ViWSHBISTBfl
 .DATE                        g I                  SUSAN L. CARLSON
                                                 SUPREME COURT CLERK
        cHtEFjusnce




    IN THE SUPREME COURT OF THE STATE OF WASHINGTON




COMMUNITY TREASURES d/b/a/
CONSIGNMENT TREASURES,a                             No. 94463-6
Washington not for profit corporation;
JOHN EVANS and BONITA BLAISDELL,
on behalf ofthemselves and all others               En Banc
similarly situated,

                            Petitioners,

         V.



SAN JUAN COUNTY,a political
subdivision ofthe State of Washington,

                            Respondent.
                                                    Filed 0" 1 I

         JOHNSON,J.—We are asked to decide whether the Land Use Petition Act

(LUPA), chapter 36.70C ROW,applies when parties are challenging, as excessive,

permit application fees assessed when a building or a land use permit application is

submitted for processing. The trial court dismissed the suit on a motion for

judgment on the pleadings, concluding that LUPA governed and the failure to file
Community Treasures v. San Juan County, No. 94463-6


suit within 21 days barred the action. The Court of Appeals affirmed. We hold that

the imposition of a permit application fee falls under the statutory definition of a

land use decision under chapter 36.70C RCW and affirm.

                          Facts and Procedural Background


       In 2012 and 2013, petitioners submitted permit applications' to the San Juan

County Department of Community Development. The county code lists 19 items

that a party must submit to complete an application, one of which is paying "[t]he

applicable fee." San Juan County Code(SJCC) 18.80.020(C)(4). Petitioners paid

the applicable fees, and the permits were issued.

       On March 18, 2015, almost three years later, petitioners filed this lawsuit,

seeking a partial refund ofthe fees they now characterize as "illegally excessive"

in violation ofRCW 82.02.020. Pet. for Review at 1; see Clerk's Papers(CP)at 2.

They sought certification as a class action lawsuit for everyone who paid San Juan

County for consideration of land use and building permits, modifications, or

renewals during the preceding three years. Petitioners requested a declaratory

judgment, payment to the putative class reaching back three years for any amount

found to be an overcharge, and attorney fees.


      'As relevant here, petitioner John Evans submitted an application to build a storage
building on bis property on Orcas Island, for which the county charged a $105 review fee.
Petitioner Community Treasures submitted two applications to change the use of existing
buildings to retail, and one application for a building permit to construct additions to an existing
building. The county charged $109.50 and $753.60 in fees to review and process those
applications.
Community Treasures v. San Juan County, No. 94463-6


      San Juan County filed a motion for judgment on the pleadings and asserted

that chapter 36.70C RCW,commonly referred to as LUPA, was the exclusive

means ofjudicial review for the fees paid because each fee was inextricably tied to

and paid as a condition of approval of a land use decision. Applying our decision

in James v. Kitsap County, 154 Wn.2d 574, 115 P.3d 286(2005), the trial court

agreed and held that LUPA applied to the claims asserted and that the plaintiffs did

not exhaust administrative remedies or file complaints within 21 days of the

issuance ofthe permits, and the court dismissed the complaint.

      The Court of Appeals affirmed the dismissal, reasoning that "[bjecause the

[applicable] fee is a mandatory requirement for a completed project permit

application, LUPA applies to a challenge to the building permit application fees."

Cmty. Treasures v. San Juan County, No. 74738-0-1, slip op. at 5(Wash. Ct. App.

Apr. 3, 2017)(unpublished), http://www.courts.wa.gov/opinions/pdf747380.pdf. It

rejected petitioners' further argument that even if challenges to the amount of a

permit application fee were subject to LUPA,the statutory exception for "[cjlaims

provided by any law for monetary damages or compensation" applied. RCW

36.70C.030(l)(c). It noted that RCW 82.02.020 expressly states that counties are

not prohibited from imposing reasonable fees for building permit applications and

noted that the petitioners' challenge was not to the ordinance establishing the
Community Treasures v. San Juan County, No. 94463-6


application fees but to the payment ofthe fees imposed for a completed project

permit application.

                                      Analysis


      Petitioners contend the trial court erred in determining that LUPA applied to

their claim for partial reimbursement of alleged overcharges for permit application

processing fees. This case raises questions of statutory interpretation, which we

review de novo. Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 926, 296 P.3d

860(2013).

      LUPA is the exclusive means for obtaining judicial review of a county's

land use decisions; building permits are subject to review under LUPA. RCW

36.70C.030(1); James, 154 Wn.2d at 583-84. The legislature enacted LUPA in

1995,"to reform the process for judicial review of land use decisions made by

local jurisdictions, by establishing uniform, expedited appeal procedures and

uniform criteria for reviewing such decisions, in order to provide consistent,

predictable, and timely judicial review." RCW 36.70C.010. It explicitly replaced

the writ of certiorari for purposes of appealing land use decisions and is the

""exclusive means ofjudicial review of land use decisions," with only a handful of

specific exceptions. RCW 36.70C.030(1)(emphasis added).

      A petition for review of a land use decision must be filed within 21 days of

the issuance of the decision. RCW 36.70C.040(3). To have standing to bring a land
Community Treasures v. San Juan County, No. 94463-6


use petition, a party must have exhausted administrative remedies "to the extent

required by law." RCW 36.70C.060(2)(d). There are only statutory exceptions to

this provision; as we have previously explained, no equitable exceptions to the

exhaustion requirement in LUPA exist. Durland v. San Juan County, 182 Wn.2d

55,66-67, 340 P.3d 191 (2014).

      Petitioners did not contest the fee amounts at the time of payment, nor do

they contest the fact that they did not pursue administrative remedies and did not

file land use petitions within 21 days ofthe assessment of the fees in question.

Thus, their complaint was properly dismissed if the assessment of fees constituted

"land use decisions" under LUPA.


      Petitioners characterize the decision to impose the application fee as "a

prerequisite that must be fulfilled before an applicant can get a land use decision,"

arguing that "[a] decision to impose that fee is not, itself, a 'land use decision'

[because] nothing about the fee and the process for determining it affects the use of

land," Suppl. Br. of Pet'r at 3.

      The county, on the other hand, points out that "[t]he land use decision 'on an

application' includes a constellation of smaller decisions that precedes approval or

disapproval ofthe land use request," and that "[tjhese decisions are part-and-parcel

of the permit decision and inextricably linked to the permit itself." Suppl. Br. of

Resp't at 8. We agree with the county.
Community Treasures v. San Juan County, No. 94463-6


      As a Starting point, RCW 36.70C.020(2) provides the definition of a "land

use decision":


      "Land use decision" means 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.

(Emphasis added.)

      SJCC 18.80.020, which governs project permit applications in San Juan

County, states that a completed application must include the applicable permit fee.

The imposition of such a processing fee is ministerial in nature. In Chelan County

V. Nykreim, 146 Wn.2d 904, 940, 52 P.3d 1 (2002), we explicitly stated that LUPA

does not distinguish between quasi-judicial and ministerial decisions and governs

both. And because the fee here is a mandatory requirement for a completed project

permit application, it is inextricably tied to the permitting process. Mindful ofthe

policy of finality in land use decisions, this court in Wenatchee Sportsmen Ass'n v.

Chelan County, 141 Wn.2d 169,4 P.3d 123 (2000), likewise held that an untimely

petition under LUPA precluded collateral attack ofthe land use decision and

rendered the improper approval valid. Similar considerations apply here.

      To conclude otherwise, one would have to disregard the basic tenets of

statutory construction and interpret clear and unambiguous language to achieve a
Community Treasures v. San Juan County, No. 94463-6


result contrary to the purpose LUPA was enacted to achieve. Community

Treasures' argument is similar to the argument the respondents advanced in James:

both seem to concede that building permits must be challenged through a LUPA

action within 21 days, but insist that challenges to permit conditions can be

brought separately up to 3 years later. The fees imposed, whether petitioners agree

or not, are part and parcel of any application. There is nothing tangential about

requiring a person or an entity seeking to build or enhance a structure to pay a

required application fee—a nonpayment ofthe fee is directly related to the final

determination of whether to grant or deny the permit. That these fees were due and

payable before the county's consideration or processing ofthe land use

applications in question is of no legal consequence: there are many other

prerequisites that must be met before the final decision is issued, but those

activities or conditions are all tied to the decision process nonetheless, occurring

within the processing of the application. Accepting Community Treasures'

argument to the contrary would undermine the purpose LUPA established.

Adopting petitioners' argument would divide a land use decision into component

pieces, each of which would arguably support a claim for monetary damages

arising out of the decision process. Our cases have rejected that argument. See

James, 154 Wn.2d at 582-83.
Community Treasures v. San Juan County, No. 94463-6


        And while it seems fairly obvious that the decision whether to charge fees

and the decision to impose a fee structure in the first place were made

independently at some point, that does not appear to form the basis ofthe

petitioners' claim here.

       Petitioners argue further that even if LUPA governs, their claims fit the

"monetary damages or compensation" exception under RCW 36.70C.030(l)(c).^

We disagree.

       Petitioners rely on Home Builders Ass'n ofKitsap County v. City of

Bainbridge Islancf to argue that the fees imposed and collected by the county in

2012, 2013, and 2014 exceeded expenses in violation ofRCW 82.02.020 as an

unauthorized tax. That statute forbids a city, county, or municipal corporation from

imposing any fee on construction activities but expressly allows an exception to

this general rule to cover a municipality's costs to process building permit

applications and to inspect and review plans.



       ^ It provides, in relevant part:
"(1) This chapter replaces the writ of certiorari for appeal of land use decisions and shall be the
exclusive means ofjudicial review of land use decisions, except that this chapter does not apply
to:


        "(c) Claims provided by any law for monetary damages or compensation. If one or more
claims for damages or compensation are set forth in the same complaint with a land use petition
brought under this chapter, the claims are not subject to the procedures and standards, including
deadlines, provided in this chapter for review of the petition. The judge who hears the land use
petition may, if appropriate, preside at a trial for damages or compensation."

       ^ 137 Wn. App. 338, 153 P.3d231 (2007).
Community Treasures v. San Juan County, No. 94463-6


       Petitioners' class action complaint alleged that similar to Home Builders,

"the municipality had overcharged for fees associated with building permits." CP

at 35. But as the Court of Appeals correctly held, Home Builders does not support

petitioners' argument because here, unlike in Home Builders, the class action does

not challenge the ordinance"^ establishing permit fees but, rather, the payment ofthe

fees imposed as part of a completed project permit application. See CP at 46

(alleging systematic overcharging), 47(seeking a declaration that "the fees charged

plaintiffs were in excess ofthose allowed by RCW 82.02.020 are therefore

invalid"). Furthermore, in James, we have already rejected the applicability of

RCW 82.02.020 to the "monetary damages" exception in LUPA in the wake of its

enactment.


       Finally, we note that concluding that LUPA applies does not leave a permit

applicant without legal recourse or render the fee amount unchallengeable. If an

applicant views the permit application fee as unreasonable, the LUPA review

procedures establish the basis to seek relief and bring a challenge, provided the

time limits are met. Here, petitioners failed to exhaust all available administrative

remedies and file an appeal in superior court within 21 days ofthe final decision to




        The challenge in Home Builders was to Resolution 99-31, authorizing various fee
increases.
Community Treasures v. San Juan County, No. 94463-6


grant their completed applications, including the requisite fees. We affirm the

Court of Appeals.




WE CONCUR:




                                                          4k




                                          10
Cmty. Treasures, et al. v. San Juan County




                                        No. 94463-6



       MADSEN,J.(dissenting)—This case eoncerns whether the Land Use Petition Act

(LUPA), chapter 36.70C RCW,applies to petitioners' suit seeking reimbursement for

alleged overcharges concerning application fees charged by San Juan County(County)

for processing petitioners' building and land use permit applications. In my view, LUPA

does not apply to the present suit challenging application processing fees. First, the

ordinance setting permit fees specifically states that the permit fees are "for services

provided" and, thus, are not imposed as mitigation for the land use impact of a project.'

When imposed, these permit fees are limited by state law^ to only the amount necessary

for the County to recoup its costs of processing the permit; the fees are not, nor can they

be, tied to the impact ofthe proposed project.

       Second, it makes no sense for permit applicants, like the present petitioners who

have received their building and land use permits, to jeopardize the timely pursuit of their

projects by filing a LUPA appeal for the sake of attempting to recoup a few dollars in



^See Clerk's Papers at 83-90(San Juan County Ordinance 28-2011)(formatting omitted).
^See footnote 5, infra, addressing RCW 82.02.020.
No. 94463-6
Madsen, J., dissenting


application processing overcharges. In other words, the applicants here received their

permits and it makes no sense for them to file a LUPA appeal to challenge permit fees

that are set by separate ordinance.

       Third, I disagree with the majority's overly expansive reading of our opinion in

James v. Kitsap County, 154 Wn.2d 574, 115 P.3d 286 (2005). The result ofthe

majority's misapplication ofJames will require that any county action that precedes the

County's ultimate land use decision and that can conceivably be associated with such

final land use decision is subject to review only via a LUPA petition, no matter how

tangential the prior county action may be to the final land use decision. In my view, the

circumstances of this case show the fallacy ofsuch an approach.

       Finally, in the present circumstance—^where petitioners are seeking only money

compensation rather than reversal or modification of a land use decision—LUPA itself

expressly exempts such claims from its provisions. Accordingly, I dissent.

                                             FACTS


       The relevant facts on appeal are not in dispute. In 2012 and 2013, petitioners

submitted four separate permit applications and paid the applicable fees, without

objection, to the San Juan County Department of Community Development.^ The county



^ Petitioners in this court include John Evans and Community Treasures, a nonprofit corporation.
In the trial court, six permits were at issue. As explained herein, the trial court determined that
LUPA applied to each of the plaintiffs' claims for partial refund and granted summaryjudgment
to the County on that basis. Additionally, as to two ofthe six permits at issue, the trial court
ruled that plaintiffs had no standing to seek partial refund ofthe processing fee because another
person or entity had paid the fee. The trial court's standing determinations regarding the permit
challenged by Bonita Blaisdell and one of Community Treasures' permits were not appealed.
No. 94463-6
 Madsen, J., dissenting


code lists multiple items that a party must submit to complete an application for a project

permit and, relevant here, specifies that the permit application "must" include "[t]he

applicable fee." SAN JUAN COUNTY Code(SJCC) 18.80.020(C)(1),(4).

        On April 12, 2012, petitioner John Evans submitted an application to build a

storage building on his property on Orcas Island. The review fee was $105, plus a state

surcharge of$4.50 for a total of$109.50. Evans paid without objection, and the County

approved his application on April 25, 2012.

        On September 19, 2013, Community Treasures submitted three permit

applications."^ Two applications sought to change the use of existing buildings to retail.
Community Treasures paid a fee of$109.50 for each ofthe change of use applications,

and the County approved the change of use on November 22, 2013.

        Community Treasures also submitted one application for a building permit to

construct additions to an existing building and paid $753.60 as part ofthe application.

On February 26, 2014, the County issued the permit. Neither Mr. Evans nor Community

Treasures sought to appeal any part ofthese approvals to a hearing examiner.

       On March 18, 2015, Community Treasures and Mr. Evans filed the present

lawsuit, seeking a partial refund ofthe fees paid for their permits and seeking



Thus, only four permits (three eonceming Community Treasures and one concerning John
Evans)are currently at issue in the present matter.
 The F. & P. Penwell Trust owns a six acre parcel on San Juan Island. Frank and Patricia
Penwell are the trustees. Mr. Penwell is also on the board of Community Treasures, a nonprofit
corporation. The trust leases the six acre parcel to Community Treasures. Here, Mr. Penwell
submitted the noted permit applications on behalf ofthe trust. For purposes of simplification, I
refer to the requesting entity as Community Treasures.
No. 94463-6
Madsen, J., dissenting


certification as a class action lawsuit for everyone who paid the County for the

consideration of land use and building permits or modifications or renewals during the

preceding three years. The first amended complaint alleged the "fees paid . . . were in

excess ofthose allowed by RCW 82.02.020."^ Clerk's Papers(CP)at 2. Plaintiffs

requested a declaratory judgment, payment to the putative class reaching back three years

for any amount found to be an overcharge, and attorney fees.

        Defendant County filed a motion for judgment on the pleadings. The County

asserted LUPA was the exclusive means ofjudicial review for the fee paid because each

fee was inextricably tied to and paid as a condition of approval of a land use decision.

        The trial court agreed, ruling that LUPA applied to the plaintiffs' claims for refund

of application fees. In letter rulings, the trial court concluded that plaintiffs did not



^ RCW 82.02.020 provides a "general prohibition offees on development projects," but it
provides an exception allowing a county "to collect reasonable fees for processing applications,
inspecting and reviewing plans, or preparing detailed statements required by SEPA [(State
Environmental Policy Act, chapter 43.2IC RCW)]." Home Builders Ass'n ofKitsap County v.
City ofBainbridge Island, 137 Wn. App. 338, 348, 153 P.3d 231 (2007). The statute states, in
relevant part,
       [N]o county, city, town, or other municipal corporation shall impose any tax, fee,
       or charge, either direct or indirect, on the construction or reconstruction of
       residential buildings, commercial buildings, industrial buildings, or on any other
       building or building space or appurtenance thereto, or on the development,
       subdivision, classification, or reclassification of land.
RCW 82.02.020. The statute further provides an exception, stating.
               Nothing in this section prohibits cities, towns, counties, or other municipal
       corporations from collecting reasonable fees from an applicant for a permit or
       other governmental approval to cover the cost to the city, town, county, or other
       municipal corporation of processing applications, inspecting and reviewing plans,
       or preparing detailed statements required by chapter 43.2IC RCW [SEPA].
RCW 82.02.020(3); see also Home Builders Ass'n, 137 Wn. App. at 349. Here,the trial court
dismissed the suit on the threshold issue of LUPA applicability and never reached petitioner's
substantive assertions.
No. 94463-6
Madsen, J., dissenting


exhaust administrative remedies or file complaints within 21 days ofthe land use

decision. The trial court dismissed the complaint, and plaintiffs appealed.

       In an unpublished opinion, the Court of Appeals affirmed dismissal, ruling that the

building permit fee is a component of a final land use decision, subject to review under

LUPA. The Court of Appeals stated,

       RCW 36.70C.020(2)(a) unambiguously defines a "land use decision" as a
       final determination on an "application for a project permit." SJCC
       18.80.020 governs project permit applications. The plain and unambiguous
       language of SJCC 18.80.020(C)(1) and (4) states a completed application
       shall include the applicable permit fee. ... Because the fee is a mandatory
       requirement for a completed project permit application, LUPA applies to a
       challenge to the building permit application fees.

Cmty. Treasures v. San Juan County, No. 74738-0-1, slip op. at 4-5(Wash. Ct. App.

Apr. 3, 2017)(unpublished), http://www.courts.wa.gov/opinions/pdf/747380.pdf.

Community Treasures and Mr. Evans petitioned this court for review, which was granted

on September 6, 2017.

                                       ANALYSIS


       Standard of Review


       Whether the trial court erred in determining that LUPA applied to petitioners'

claim for partial reimbursement of alleged overcharges for permit application processing

fees raises questions of statutory interpretation. Our review is de novo. Lakey v. Puget

Sound Energy, Inc., 176 Wn.2d 909, 926, 296 P.3d 860(2013); Tingey v. Haisch, 159

Wn.2d 652,657, 152 P.3d 1020(2007).
No. 94463-6
Madsen, J., dissenting


        A Permit Application Processing Fee Is Not a Land Use Decision

       I acknowledge that LUPA is the exclusive means for obtaining judicial review of a

eounty's "land use deeisions." RCW 36.70C.030(1); Habitat Watch v. Skagit County,

155 Wn.2d 397, 407, 120 P.3d 56(2005). And building permits, as substantive land use

decisions, are subjeet to the proeedural requirements of LUPA. James, 154 Wn.2d at

584.^ But this ease is not about a final substantive land use deeision. Petitioners' suit

does not seek to eballenge or modify any final determination coneeming the use ofland.

Petitioners' suit eoncerns only a money damages elaim for alleged overebarges of

application processing fees, in amounts pursuant to a schedule that was determined

outside of petitioners' land use permit decisions. For purposes ofLUPA, a "land use

deeision" ineludes a local jurisdiction's "final determination ... on .. .[a]n application

for a project permit" required before real property may be improved, developed,

modified, or used. RCW 36.70C.020(2)(a). Here, the proeessing fees at issue were

determined by a county ordinance that amended the relevant fee schedule before any of

the permits in question were filed. The corresponding amounts from the fee sebedule

were then applied when petitioners later filed their building and land use applications.

Thus, the determination ofthe fee schedule amounts that were applied here, the propriety

of which is the basis of petitioners' class action suit, occurred outside the County's

consideration of petitioners' projeet permit applieations. In my view, simply plugging in


^ Under LUPA,a petition for review of a land use decision must be filed within 21 days ofthe
issuance ofthe decision. RCW 36.70C.040(3). To have standing to bring a land use petition, a
person must have exhausted administrative remedies to the extent required by law. RCW
36.70C.060(2)(d).
No. 94463-6
Madsen, J., dissenting


the predetermined processing fees from the fee schedule to petitioners' permit

applications is not a land use decision subject to LUPA.^

        The courts below and the majority reasoned that since the processing fee is a

mandatory requirement of a permit application, LUPA applies to challenges to the

amount ofthe fees. But such broad "but for" reasoning is at odds with this court's

holding in Ma Verde International Holdings, Inc. v. City ofCamas, 146 Wn.2d 740, 761,

49 P.3d 867(2002), that "development conditions must be tied to a specific, identified

impact of a development on a community." See also James, 154 Wn.2d at 586(same).

       Relying on Isla Verde, this court, in James, explained the nature ofthe link that

the impact fee had to the issuance of the building permit stating,

       [Ijdentifieation ofthe specific impact of a development on a community,
       assessment of the public facilities necessary to serve that development, and
       determination of the amount ofimpact fees needed to aid in financing
       construction of the facilities at the time a county issues a building permit
       inextricably links the impact fees imposed to the issuance ofthe building
       permit.

Id. Under this analysis, the James court held that "building permits are ministerial

decisions subject to judicial review under LUPA, and we find that the imposition of




  find unpersuasive the majority's attempt to distinguish this case from Home Builders, in which
petitioners filed a similar class action suit challenging permit fees as overcharges violating RCW
82.02.020. The majority notes that petitioners here are challenging the payment of fees imposed,
rather than challenging the ordinance that increased the fees. But in both cases, the gravamen of
the complaint is that the fees did not reflect costs and thus were overcharges in violation of RCW
82.02.020. In Home Builders, Division Two ofthe Court of Appeals reversed the trial court's
grant of summary judgment for the city and held that the burden to show that the permit fees
complied with the statutory exceptions contained in RCW 82.02.020 lay with the city, remanding
the case for further proceedings.
No. 94463-6
Madsen, J., dissenting


impact fees as a condition on the issuance of a building permit is as well." Id.(citing

Chelan County v. Nykreim, 146 Wn.2d 904, 52 P.3d 1 (2002)).

       As noted, the majority's view is that because the San Juan County Code requires

payment ofthe application processing fee (see SJCC 18.80.020(C)(1),(4)) when

submitting the permit application, the fee is a condition for issuing a building permit and

cites James as support. But this court actually held in James that "the imposition of

impact fees as a condition on the issuance ofa building permit is a land use decision and

is not reviewable unless a party timely challenges that decision within 21 days of its

issuance." James, 154 Wn.2d at 586(emphasis added).

       The application fee in the present case does not involve a determinative

connection to the land use decision. It is merely a processing fee that must be paid

regardless ofthe application's outcome. Instead, the application fee at issue here is

similar to the processing fees submitted with a college application or a court filing fee,

neither of which is affected by the determination and outcome on the application. The

application fee here is a prerequisite to consideration ofthe land use request; it must be

paid even if the permit is abandoned or denied; it is merely a processing fee,

administrative in nature and not part of the actual land use decision.

       These distinctions reflect the differing purposes ofthe impact fees in James and

the application fees here. Impact fees facilitate the efficient mitigation ofthe effects of

development; in contrast, application processing fees fund government's regulatory

oversight as their only purpose. Notably, the ordinance enacting the fee schedule
No. 94463-6
Madsen, J., dissenting


indicates that its purpose is "setting feesfor services provided.'" CP at 83 (emphasis

added)(formatting omitted). Thus, the application fees are reflective of the costs of

processing and are unrelated to any consequence or effect that the completed project may

impose on the environment or community. In James, this court addressed a challenge to

the imposition of an impact fee, the amount of which was determined by the needs

resulting from the project as proposed. We concluded that the impact fee was

inextricably linked to the substantive decision regarding the use ofland and issuance of

the building permit, and thus was subject to LUPA. By contrast, the application fee here

concerns administrative processing and has no similar connection to the land use

determination. Because the application fee lacks a similar mitigating connection to the

substantive land use decision, LUPA does not apply.

       In the majority's view, LUPA applies to all administrative decisions leading to

land use approval. I disagree. Notably, the provisions of chapter 36.70C RCW have

been found to not apply to "an interim decision made in the process of, but prior to,

reaching a final decision on a permit." See 36 Michael F. Connelly, Washington

Practice: Washington Land Use § 7:3, at 266 (2017-18). For instance, in WCHS,

Inc. V. City o/Lynnwood, 120 Wn. App. 668, 680, 86 P.3d 1169 (2004), Division One

held that letters from the city—^that informed an applicant for a building permit and a

business license that his applications were incomplete—^were insufficient to constitute

final orders and, thus, "[n]o exhaustion of administrative remedies arose." The WCHS

court explained:
No. 94463-6
Madsen, J., dissenting


       [T]he Land Use Petition Act, chapter 36.70C RCW,provides the exclusive
       means for review of land use decisions. LUPA defines a "land use
       decision" 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. But the dispute here is not about a
       "final" decision. It is about an interim decision made in the process of, but
       prior to, reaching afinal decision on a permit. LUPA does not apply to
       interlocutory decisions.

Id.(emphasis added)(footnotes omitted). Here, the application processing fee charge is a

tangential interim decision made prior to reaching a final decision on a permit. Similar to

WCHS, here, LUPA does not apply to such interim decision.

       Further, in Pacific Rock Environmental Enhancement Group v. Clark County, 92

Wn. App. 777, 782, 964 P.2d 1211 (1998), Division Two held that"LUPA does not

include an interlocutory procedural order within its definition of'land use decision'";

accordingly, where such interlocutory order is at issue, the superior court "had no

jurisdiction to review the order under LUPA." Division Two explained,"LUPA provides

for review only of'land use decisions,' a phrase that is defined and that does not include

discovery orders." Id. Similarly, the definition of"land use decision" does not include

an application processing fee, and LUPA does not apply here.

       LUPA's Exception for Monev Damages Claims Applies Here

       Alternatively, in my view, even if we assume that the present case falls within

LUPA's procedural requirements(a proposition with which I disagree), petitioners' suit

would fall within the express money damages exception to LUPA contained in RCW

36.70C.030(l)(c). Relevant here is Woods View II, LLC v. Kitsap County, 188 Wn. App.

1, 352 P.3d 807, review denied, 184 Wn.2d 1015 (2015). Therein, Division Two rejected


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the county's cross appeal, which asserted that LUPA applied to appellant's action seeking

monetary compensation from the county's delayed issuance of permits but not

challenging the land use decisions themselves. Id. at 24-25.

       While LUPA provides that it is the exclusive remedy for land use decisions, see

RCW 36.70C.030(1), LUPA expressly does not apply to "[cjlaims provided by any law

for monetary damages or compensation." RCW 36.70C.030(l)(c). Nevertheless,"a

damage claim may still be controlled by LUPA if'iX is dependent on 'an interpretive

decision regarding the application of a zoning ordinance.'" Woods View II, 188 Wn.

App. at 24-25 (emphasis added)(quoting           v. Bloomquist, 132 Wn. App. 784, 801,

133 P.3d 475 (2006)). Further, even if an applicant obtains the requested permit

approval, he still must file a LUPA appeal "//he intends to challenge the propriety of any

conditions placed on issuance ofthe permit." Id. at 25 (emphasis added)(citing James,

154 Wn.2d at 590). But as Division Two explained in Woods View II, the case at issue

was "not like Asche or James.'" Id. This was so because petitioner "is not challenging

the actual land use decisions below because it received all ofthe permits it asked for, nor

is it challenging any conditions imposed." Id. Division Two explained that the case was

analogous to Lakey, which "ruled that the appellants were not required to file a LUPA

petition to pursue their claims for damages where the appellants were seeking only

money compensation rather than a reversal or modification of a land use decision." Id.

(citing Lakey, 176 Wn.2d at 927-28). Division Two held, "[A]ll[Woods View II] seeks

is damages for the delay in rendering [the permit] decisions. In such a case, LUPA is not



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a bar to the plaintiffs claims." Id. ,- see also Libera v. City ofPort Angeles, 178 Wn. App.

669, 675 n.6, 316 P.3d 1064(2013)(because appellant appeals dismissal of only his

damages claim for intentional interference with business expectancy by government

delay, LUPA does not apply).

        Similar to Woods View II, the petitioners here received the permits they requested,

their suit seeks only monetary compensation, and that determination does not require

revisiting or disturbing the land use decision (permit issuance). Thus, RCW

36.70C.030(l)(c)'s exception applies and LUPA does not bar petitioners' suit for

application fee overcharges claimed as a violation ofRCW 82.02.020.^

                                         CONCLUSION


       I would hold that LUPA, chapter 36.70C RCW,does not apply to petitioners' suit

seeking reimbursement for alleged overcharges concerning application fees charged by

the County for processing petitioners' building and land use permit applications. In my




^The majority again relies on James in dismissing any application ofthe RCW 36.70C.030(l)(c)
monetary damages exemption, stating,    James, we have already rejected the applicability of
RCW 82.02.020 to the 'monetary damages' exception in LUPA in the wake of its enactment."
Majority at 9. I disagree. In discussing RCW 82.02.020 this court stated in James,"Since we
find that the County's imposition of impact fees as a condition on the issuance ofa building
permit is a land use decision, it necessarily follows that the procedures established by LUPA to
challenge that decision dictate." James, 154 Wn.2d at 587(emphasis added). Nothing m.James
precludes application of RCW 36.70C.030(l)(c)'s monetary damages exemption to the
application processing fees in this case. As discussed above, the processing fees here are distinct
from the impact fees in James-, the application processing fees are not an inextricably linked
condition to the final substantive land use decision. Further, the RCW 36.70C.030(l)(c)
monetary damages exemption was not asserted in James, so this court did not address it. See id.
at 586-87("At no time have the Developers argued they are not subject to the procedural
requirements of LUPA because their claims fall within one of the exceptions enumerated in
RCW 36.70C.030(1).").

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view, such administrative processing fees are not land use decisions subject to LUPA.

Further, because petitioners seek only money damages, LUPA's express exemption for

such claims under RCW 36.70C.030(l)(c) applies. Accordingly, I would reverse the

Court of Appeals' affirmance of the trial court's application ofLUPA to petitioner's suit

and remand for further proceedings.

       For these reasons, I dissent.




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