  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                      DIVISION ONE
SCOTT BLOMENKAMP,                           )      No. 78292-4-I

                       Appellant,

       v.
                                            )
CITY OF EDMONDS, a municipal                )
corporation; LEIF BJORBACK,                 )
Edmonds City Building Official;             )      UNPUBLISHED OPINION
KAUTZ ROUTE, LLC,
                                            )      FILED: July 22, 2019
                       Respondents.


      VERELLEN,   J.   —   Scott Blomenkamp appeals from the superior court’s order

dismissing his Land Use Petition Act (LUPA)1 petition for lack of standing. He also

appeals the dismissal of his tort claims against Kautz Route LLC (Kautz) and the

City of Edmonds (City). Because the superior court properly dismissed

Blomenkamp’s LUPA and tort claims, we affirm.

                                         FACTS

      After unsuccessfully appealing the denial of his first LUPA appeal,2

Blomenkamp filed this appeal of his unsuccessful second LUPA petition.


      1   Ch. 36.70C RCW.
      2 Blomenkamp v. City of Edmonds, No.75737-7-1-I, slip op. at 2-4 (Wash. Ct.
App. July 24, 2017) (unpublished), http://www.courts.wa.gov/opinions/pdf/757377.pdf.
No. 78292-4-1/2


       In October 2013, Kautz began developing a five-duplex project in Edmonds,

Washington. On February 5, 2014, the architectural design board (ADB) for the

City reviewed and approved Kautz’s project with conditions. No one appealed the

ADB decision. On December 29, 2014, Kautz obtained a site and utility

improvements permit that contemplated clearing. No one appealed that permit.3

       In May 2015, while grading the site, Kautz severed tree roots extending into

the development site from some trees located on adjoining property purchased by

Blomenkamp on May 12, 2015.~ In June 2015, Blomenkamp and two other

residents filed a request for review of the ADB approval of Kautz’s project pursuant

to Edmonds Community Development Code (ECDC) 20.100.040.~

       The City’s Development Services Director (Director) concluded that the

approved permits for Kautz’s project “complie[d] with City code” and that the

project was “operating within the conditions of the approved permits.”6 The City’s

Hearing Examiner (Examiner) rejected Blomenkamp’s claims to revoke the permits

and to award damages.7


       ~ Id. at 2.
       ~ CP at 162.
        ~ CP at 151-52. As relief for these alleged violations, Blomenkamp sought
revocation of the ADB approval and $50,000 in compensation for the damage caused
to his trees. CP at 167.
        6 CP at 159.

       ~ Blomenkamp, slip op. at 3-4. The examiner concluded: (1) “compliance with
Chapter 18.45 ECDC was subject to the exclusive jurisdiction of the ADB during the
design review process[,]” (2) “the ADB would have had a fairly accurate understanding
of precisely how much grade and fill was involved in the project[,]” (3) “[r]evocation of
the permit will not prevent any further tree damage or remedy the hazards that



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No. 78292-4-113


       In December 2015, Blomenkamp appealed the Examiner’s decision to

Snohomish County Superior Court under LUPA but the superior court dismissed

the petition.8 Blomenkamp appealed that order of dismissal to this court.9 We

rejected Blomenkamp’s argument that the City failed to enforce the codes and

ordinances governing the permits it issued Kautz in 2014 as a prohibited collateral

attack.1°

       On April 26, 2017, while review of his first LUPA petition was still pending in

this court, Blomenkamp filed a second LUPA petition and Complaint for Damages

in Snohomish County Superior Court.11

       In the LUPA portion of his second petition, Blomenkamp identified the land

use decision being appealed as the City Building Official’s April 6, 2017 issuance

of certificates of occupancy to Kautz for the same five properties that were the

subject of his first petition.12 In the damages portion, he asserted numerous tort

claims against Kautz, including timber trespass, damage to land, trespass,




currently exist[,j” and (4) if Blomenkamp “believes he is entitled to a cash award, he
needs to file his claim in superior court, who with.  tort jurisdiction is the proper
                                                       .   .


forum to adjudicate damages claims.” CP at 176-77.
       8 CF at 194, 281, 327; Blomenkam~, slip op. at 4.

       ~ CP at 331.
       10Blomenkamp, slip op. at 1-2. We also rejected all of Blomenkamp’s
remaining claims and his motion for reconsideration. Id. at 10-13; CF at 433. The
Washington Supreme Court denied his petition for review. Blomenkamp v. City of
Edmonds, 190 Wn.2d 1003, 413 P.3d 14(2018).
      ~ CPat44O.
       12   CP at 441, 458-62.




                                          3
No. 78292-4-1/4


negligence, gross negligence, and nuisance.13 He asserted a single claim of

“Local Municiple [sic] Tortious Conduct” against the City.14

       Based on a series of motions, the superior court dismissed Blomenkamp’s

second LUPA petition for lack of standing, dismissed all of his tort claims against

Kautz, and dismissed his tortious conduct claim against the City.15 Blomenkamp

appeals.16

                                      ANALYSIS

                               I. Second LUPA Petition

       Blomenkamp contends the superior court erred in dismissing his second

LUPA petition for lack of jurisdiction and standing.17 Blomenkamp mistakenly

refers to jurisdiction. The superior court dismissed the LUPA petition based only

upon lack of standing.18

       Additionally, although “jurisdiction” is often used imprecisely, a court has

subject matter jurisdiction if it has authority to adjudicate the type of controversy

involved in the action.19 The “type of controversy” refers to the nature of the case


       13   CP at 451-54.
       14CPat454.
       15 CP at 640-42, 667-68, 2000-04.

       16   CF at 1992-94.
       ‘7Appellant’s Br. at 3-4, 13-22.
       18 Report of Froceedings (RF) (July 12, 2017) at 36 (ruling “there is no
standing.”).
       19 In re Marriac~e of McDermott, 175 Wn. App. 467, 480-81, 307 F.3d 717
(2013) (quoting Shoop v. Kittitas County, 108 Wn. App. 388, 393, 30 P.3d 529 (2001));
see also Cole v. Harveyland, LLC, 163 Wn. App. 199, 209, 258 P.3d 70 (“The critical



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No. 782~2-4-lI5


or the relief sought.2° A superior court has subject matter jurisdiction to hear a

LUPA petition challenging a land use decision.21

       “To have standing to file a land use petition, a petitioner must first ‘exhaust

[]his or her administrative remedies to the extent required by law.”22 We review

LUPA standing de novo.23

       In his first LUPA petition, Blomenkamp challenged the City’s decisions to

permit and approve Kautz’s project on the theory the City failed to enforce its

codes and ordinances. On appeal, we rejected his claim as an impermissible

belated collateral attack.24 Now, Blomenkamp contends that the City’s issuance of

certificates of occupancy to Kautz was “a final decision that it would not enforce its




concept in determining whether a court has subject matter jurisdiction is the type of
controversy.”).
       20 Douqhertyv. Dept of Labor& lndus., 150 Wn.2d 310,316,76 P.3d 1183

(2003); Maciee v. Rite Aid, 167 Wn. App. 60, 73, 277 P.3d 1 (2012).
       21 Durland v. San Juan County, 182 Wn.2d 55, 64, 340 P.3d 191 (2014).

       22  ~ at 66 (quoting RCW 36.700.060(2)(d)). LUPA petitions must be brought
within 21 days of the land use decision. RCW 36.70C.040(3). Failure to timely pursue
a right to appeal a land use decision precludes a collateral attack of that decision via a
challenge to subsequent land use decision. Blomenkamp, slip op. at 6; Durland v. San
Juan County, 174 Wn. App. 1, 13, 298 P.3d 757 (2012) (“[A] party may not collaterally
challenge a land use decision for which the appeal period has passed via a challenge
to a subsequent land use decision.”).
        23 Knightv. City of Yelm, 173 Wn.2d 325, 336, 267 P.3d 973 (2011).

       24 There, we explained that a LUPA petition “does not allow a belated collateral
attacked on a permit in the guise of a failure-to-enforce claim.” Blomenkamp, slip op.
at 9 (holding that Blomenkamp was precluded from raising substantive tree protection
standards in his LUPA petition challenging the February 2014 ADB approval and
December 2014 permit).



                                          5
No. 78292-4-1/6


development regulations.”25 Critically, however, this is the same “failure-to-

enforce” argument we rejected on review of his first appeal. For similar reasons,

we conclude that Blomenkamp lacked standing to bring the collateral attacks

contained in his second LUPA petition.26

       Blomenkamp again cites Chumbley v. Snohomish County,27 and now cites

Biermann v. City of Spokane28 to argue that a City’s issuance of occupancy

certificates supports standing under LUPA to challenge its final enforcement

decisions.29 His reliance on those cases is misplaced.

       In Chumbley, the county’s decision to issue a certificate of occupancy was

not the key decision. There, the county’s September 9, 2015 determination that

“no permit will be required” was the final enforcement decision triggering

commencement of the 21-day deadline to file a LUPA petition; the county’s




      25  Appellant’s Br. at 18; Appellant’s Reply Br. at 14. He again claims that
Kautz’s project’ ‘did not have a clearing permit and the clearing and development has
caused damage to his trees in violation of ECDC.” Appellant’s Br. at 20. The City’s
“lack of enforcement” is at the core of his second LUPA petition. Appellant’s Reply Br.
at 1.
       26 Blomenkamp, at slip op. 8-9; Stientjes Family Tr. v. Thurston County, 1 52
Wn. App. 616, 624 n.8, 217 P.3d 379 (2009) (challenges brought “after LUPA’s 21-day
time period for filing an appeal constitute impermissible collateral attacks”); Habit
Watch v. Skaqit County, 155 Wn.2d 397, 407, 120 P.3d 56 (2005) (even illegal land
use decisions will be allowed to stand if not timely challenged under LUPA).
       27 197 Wn. App. 346, 386 P.3d 306 (2016). Blomenkamp unavailingly cited
Chumbley on his first appeal to this court. See Blomenkamp, slip op. at 9 n.23.
       2890 Wn. App. 816, 960 P.2d 434 (1998).
       29 Appellant’s Br. at 17-19; Appellant’s Reply Br. at 2.




                                           6
No. 78292-4-1/7


September 22, 2015 issuance of the certificates of occupancy was not.3° We

reversed in Chumbley because the petitioners timely filed their LUPA petition on

September 30, 2015 (within the 21-day deadline).31 Here, the City made its final

land use decisions on the scope of permits issued to Kautz in February and

December 2014, but Blomenkamp did not begin to challenge those permits until

June 2015. The City’s issuance of the April 6, 2017 certificates of occupancy was

not a final enforcement decision.

       Biermann is also factually distinguishable. In Biermann, a divided Division

Ill panel concluded that an adjacent property owner had standing under LUPA to

challenge the City of Spokane’s approval of a “certificate of compliance” for a non

conforming garage.32 Biermann did not involve “certificates of occupancy.” Most

significantly, the focus of Biermann was on whether inspections extended the

duration of a building permit, and there is no indication the property owner’s LUPA

petition was an untimely collateral attack.33

       In short, Blomenkamp cannot, under the guise of a LUPA failure-to-enforce

challenge, use a certificate of occupancy issued at the end of a project to



      30   Chumbley, 197 Wn. App. at 358-59, 365.
       3Hd.at 365.
       32 Biermann, 90 Wn. App. at 818-20 (There, the developers’ building permit

expired before they began construction, they constructed a two-story garage when
only a one-story had been approved, and Spokane “issued three stop-work orders and
threatened the [developers] with criminal action.” Despite this, Spokane’s hearing
examiner granted the developer’s request for a certificate of compliance.).
      33kLat819.



                                          7
No. 78292-4-118


collaterally attack a final land use decision made near the beginning of the project.

The superior court did not err in dismissing Blomenkamp’s second LUPA petition

for lack of standing.34

                                    II. Tort Claims

       Blomenkamp also contends the trial court erred in dismissing his tort claims

against Kautz and the City.35

       Our case law “recognizes[] claims for damages based on a LUPA claim

must be dismissed if the LUPA claim fails.”36 In Mercer Island, the court explained

that because all of the petitioner’s claims challenged the validity of the land use

decision at issue and were therefore subject to LUPA, the [petitioner’s] failure to

assert them within LUPA’s time limitations requires dismissal of all the claims,

including those for damages. Thus, the trial court did not err by dismissing the




       ~ See Durland, 175 Wn. App. at 325 (noting that even granting the petitioner’s
requested relief from the administrative exhaustion requirement in establishing LUPA
standing, such relief “could not, however, expand the authority of the court to act”).
Given our conclusion, we do not need to address the parties’ arguments on whether
the City’s issuance of occupancy certificates qualifies as a final land use decision.
       ~ Appellant’s Br. at 4-7, 29-35.
       36  Mercer Island Citizens for Fair Process v. Tent City 4, 156 Wn. App. 393,
405, 232 P.3d 1163 (2010) (citing Shawv. City of Des Moines, lO9Wn. App. 896,
901-02, 37 P.3d 1255 (2002) “(where LUPA petition challenging conditions imposed
on building permit application included a claim for damages, court acknowledged: ‘If
the petitioner loses the LUPA appeal, the damages case is moot and the matter is
over.’)”; Asche v. Bloomguist, 132 Wn. App. 784, 800, 133 P.3d 475 (2006) “(LUPA
precluded nuisance claim for damages because it depended entirely upon a finding
that the challenged permit was invalid).”).



                                          8
No. 78292-4-1/9


claims.”37 Blomenkamp even acknowledges ‘LUPA is controlling                .   .   .when the

damages are derived directly from the decision being reviewed under LU PA.”38

       A decision how ordinances or regulations should be enforced is a

“determination” that qualifies as a land use decision subject to LUPA and does not

constitute a separate tortious act committed during the land use process.39

       Here, the record reveals from the initiation of his first LUPA petition until

now, Blomenkamp’s tort claims are based on the City’s “determination” of how its

codes and ordinances should be enforced as to Kautz’s project. Beginning with

the August 2015 hearing before the Examiner where he requested revocation of

Kautz’s permits and $50,000 in damages to his trees, Blomenkamp argued that

Kautz “should have followed the tree-cutting code.    .   .   .   The code needs to be

enforced. This is not a land use issue, but it is a code enforcement issue.”4°

      Then, in his motion for reconsideration following this court’s decision on his

first appeal, Blomenkamp argued (among other things) that his LUPA petition was

not an impermissible collateral attack on a permit, but “an appeal of an

enforcement action.”41 Blomenkamp also incorporated “all of the facts” set forth in




      37kiat405.
      38 Appellant’s Reply Br. at 20.

          See Maytown Sand & Gravel, LLC v. Thurston County, 191 Wn.2d 392, 426-
28, 423 P.3d 223 (2018) (distinguishing tort claims from a “determination” subject to
LU PA).
       40 CP at 171 (emphasis added).

      41   CP at 386.




                                           9
No. 78292-4-1/10


his second LUPA petition as the factual support that he contends entitles him to

monetary damages for his tort claims.42

       Moreover, his current briefing continues to allege the City’s failure to

enforce, and Kautz’s failure to comply with, clearing codes and ordinances. For

instance, he claims that Kautz violated ECDC 18.45 and cleared ‘outside a

permitted area” and caused damage to his tree, his nuisance claim is “partially

based on the lack of a dense visual barrier that [Kautz is] required to have with the

required type 1 landscape,” and the “City was negligent in its permitting the

development without the required Type 1 landscaping and failed to enforce such

requirements.”43

       The record makes clear that Blomenkamp’s tort claim against the City is

based on the City’s determination on how to enforce its ordinances—land use

decisions the City finalized in 2014. Because Blomenkamp’s second LUPA

petition inherently focused on his failure to enforce theory, his tort claim against

the City based on that same theory necessarily fails because he lacks standing to

pursue his second LUPA petition. The superior court properly dismissed

Blomenkamp’s tort claim against the City.44


      42CPat452.
      ~ Appellant’s Br. at 31, 34, 37.
        ~ Blomenkamp relies on Post v. City of Tacoma, 167 Wn.2d 300, 217 P.3d
1179 (2009) for the proposition that if money damages or compensation is the relief
requested from a land use decision, then such a claim is not subject to LUPA’s
procedures and deadlines pursuant to RCW 36.70C.030(1)(c). See Appellant’s Reply
Br. at 19. Post is distinguishable. First, unlike the case at bar, the Post court
concluded that the City of Tacoma’s enforcement of ordinance violations was not a



                                          10
No. 78292-4-111 1


         As to his tort claims against Kautz, the alleged torts are grounded in the

premise that when grading, Kautz crossed over the property line damaging tree

roots on Blomenkamp’s side of the property line.45

         We review a summary judgment order de novo and engage in the same

inquiry as the trial court.46 Summary judgment is proper if there is no genuine

issue of material fact and that the moving party is entitled to summary judgment as

a matter of law.47 A party opposing summary judgment may not rely solely on

allegations made in its pleadings but must set forth specific facts showing that

there is a genuine issue for trial.”48 We view the facts and all reasonable

inferences in the light most favorable to the nonmoving party.49 We may affirm the

superior court’s summary judgment decision on any ground supported by the

record   50




“land use decision” subject to LUPA under RCW 36.70C.020(1)(c). ki at 308-12.
Second, the Post court did not address the merits of the plaintiff’s damages claims
because “[t]hose claims were either dismissed by the trial court or abandoned by Post
prior to appeal.”    at 307 n.2.
        ~ Appellant’s Br. at 29-33.
         46   Beau~re v. Pierce County, 161 Wn.2d 568, 571, 166 P.3d 712 (2007).
      ~ CR 56(c); Lowman v. Wilbur, 178 Wn.2d 165, 168-69, 309 P.3d 387 (2013).
A material fact is one that affects the outcome of the litigation. Janaszak v. State, 173
Wn. App. 703, 711, 297 P.3d 273 (2013).
       48Younq v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989)
(quoting CR 56(e)).
       ~ Fulton v. Dep’t of Soc. & Health Servs., 169 Wn. App. 137, 147, 279 P.3d 500
(2012).
       50 LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989).




                                           11
No. 78292-4-1/12


       In his opposition to Kautz’s motion for summary judgment on the various

trespass claims, Blomenkamp did not present any proper declarations or affidavits

establishing a genuine issue of material fact that the damage to the tree roots

occurred on Blomenkamp’s side of the property line.51 A property owner may cut

back to the property line any tree roots that intrude onto his or her property.52

Blomenkamp did not establish on summary judgment that Kautz owed him any

legal duties supporting his negligence and nuisance claims.53 Nor has he cited to

any authority stating that Kautz owed such duties or even discussing the elements

required for his various tort theories.54 Accordingly, Blomenkamp fails to establish

a genuine issue of material fact precluding summary judgment rejecting his tort

claims against Kautz.

      We affirm.                                     \J Ii~ ~
WE CONCUR:




                                                                       /
      51   CP at 1032, 1055.
      52Gostina v. Ryland, 116 Wash. 228, 233, 199 P. 298 (1921); Boyle v. Leech, 7
Wn. App. 2d 535, 436 P.3d 393 (2019).
      ~ CP at 1054-55.
       ~ Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549
(1992) (appellate courts do not consider arguments that are not supported by
authority).



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