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                                                                                    en
MICHAEL DURLAND, KATHLEEN                                                           r—
                                                                                     i
FENNELL, and DEER HARBOR                          DIVISION ONE
BOATWORKS,
                                                                                    2S
                                                                                    KO
              Appellants,                         No. 68453-1-1

         v.
                                                                                    CO
                                                                                          :r7"
                                                  PUBLISHED OPINION
SAN JUAN COUNTY, WES
HEINMILLER, and ALAN STAMEISEN,

              Respondents.                        FILED: July 1,2013


       Dwyer, J. — Property owners Michael Durland, Kathleen Fennel, and

Deer Harbor Boatworks (Durland) appeal from the superior court's dismissal of a

land use petition filed pursuant to the Land Use Petition Act (LUPA), chapter

36.70C RCW. Pursuant to LUPA, a local government's decision is not subject to

judicial review by the superior court unless it is a "land use decision." Because

Durland failed to obtain a "final determination by a local jurisdiction's body or

officer with the highest level of authority to make the determination," RCW

36.70C.020(2)(a), the grant of the building permit at issue did not constitute a

"land use decision." Thus, the superior court was without authority to review San

Juan County's decision to grant the permit. Accordingly, we affirm.

                                           I


       On August 8, 2011, Wesley Heinmiller and Alan Stameisen (Heinmiller)

applied to the San Juan County Department of Community Development and
Planning for a building permit for property located in Deer Harbor on Orcas
No. 68453-1-1/2



Island. The Department granted the building permit on November 1, 2011.

       On December 19, 2011, Durland filed a LUPA petition in Skagit County

Superior Court, challenging the grant of the building permit. Durland asserted

that the building permit authorized construction in violation of county shoreline

and zoning requirements. As requested relief, Durland sought a judicial

determination that the building permit was "void." On the same day, Durland filed

an administrative appeal of the decision to grant the building permit with the San

Juan County hearing examiner.

        In superior court, both San Juan County and Heinmiller filed motions to

dismiss Durland's LUPA action. San Juan County sought dismissal of Durland's

petition pursuant to Civil Rule (CR) 12(b)(6), contending, among other things,1
that Durland had not exhausted his administrative remedies and, thus, lacked

standing pursuant to LUPA. Asserting the same contentions, Heinmiller sought

dismissal of the petition pursuant to either CR 12(b)(1) or CR 12(b)(6).

        Durland responded, admitting that he had not timely filed an administrative

appeal of the building permit decision. Nevertheless, he asserted that his failure

to exhaust administrative remedies should be excused because he had not

known that the permit had been granted until after the limitation period for filing

        1San Juan County and Heinmiller additionally asserted that Durland's land use petition,
filed more than 21 days after the permitwas issued, was untimely. Durland responded,
maintaining that his land use petition had been timely filed. On appeal to this court, Durland
reiterates his contention that his land use petition was timely filed pursuant to RCW
36.70C.040(3), which provides that such a petition is timely if filed "within twenty-one days of the
issuance of the land use decision." He asserts that, pursuant to the statutory delineation of when
a land use decision is "issued," the decision was issued not when the building permit was granted
but, instead, when he himself received a copy of the permit. Because we affirm the superior
court's order on other grounds, we do not address this contention.


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No. 68453-1-1/3



an administrative appeal had expired. Believing that the administrative appeal

limitation period could be tolled, Durland additionally sought a stay of the

proceedings in the superior court until his appeal to the hearing examiner had

been resolved.

       On February 3, 2012, the superior court granted Heinmiller's and San

Juan County's CR 12(b) motions, dismissing with prejudice Durland's LUPA

petition. The court additionally denied Durland's motion to stay the proceedings.

       Durland appeals.

                                          II


       The resolution of this case turns on whether the legislature has authorized

the superior court to review the decision in question. Specifically, we must

determine whether San Juan County's decision to grant the building permit

constituted a "land use decision" for purposes of LUPA, thereby rendering the

matter properfor judicial review by the superior court. We hold that it did not.
       We review de novo a superior court's ruling on a motion to dismiss for

failure to state a claim upon which relief can be granted pursuant to CR 12(b)(6).
West v. Stanley. 155 Wn. App. 691, 696, 229 P.3d 943 (2010). The superior

court properly dismisses a claim pursuant to CR 12(b)(6) "only if it appears
beyond a reasonable doubt that no facts justifying recovery exist." West, 155
Wn. App. at 696. Similarly, we review de novo rulings to dismiss for lack of
jurisdiction pursuant to CR 12(b)(1). Nickum v. Citv of Bainbridae Island, 153
Wn. App. 366, 373-74, 223 P.3d 1172 (2009).



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No. 68453-1-1/4



       Absent specific, limited exceptions,2 the Land Use Petition Act is "the
exclusive means of judicial review of land use decisions." RCW 36.70C.030(1).

The stated purpose of the act is to provide "consistent, predictable, and timely

judicial review." RCW 36.70C.010. Our Supreme Court has "long recognized

the strong public policy evidenced in LUPA, supporting administrative finality in

land use decisions." James v. Kitsap Countv. 154 Wn.2d 574, 589, 115 P.3d 286

(2005) (citing Chelan Countv v. Nvkreim, 146 Wn.2d 904, 931-32, 52 P.3d 1

(2002)).

       LUPA invokes the appellate jurisdiction of the superior court; accordingly,

"the superior court has only the jurisdiction as conferred by law." Conom v.

Snohomish Countv. 155 Wn.2d 154, 157, 118 P.3d 344 (2005). Pursuant to

LUPA, the superior court, acting in its appellate capacity, may review only "land
use decisions," as defined by the act. See RCW 36.70C.010; 36.70C.030(1). As
our Supreme Court has declared, "LUPA applies only to actions that fall within
the statutory definition of a land use decision." Post v. Citvof Tacoma, 167
Wn.2d 300, 309, 217 P.3d 1179 (2009).

        Pursuant to LUPA, a "land use decision" is

        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]n application for a project
        permit or othergovernmental approval required by law before real


        2LUPA does not apply to judicial review of "[l]and use decisions made by bodies that are
not part ofa local jurisdiction"; "[l]and use decisions of a local jurisdiction that are subject to
review by a quasi-judicial body created by state law"; "applications for a writ of mandamus or
prohibition"; or"[cjlaims provided by any law for monetary damages or compensation." RCW
36.70C.030(1).

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No. 68453-1-1/5



       property may be improved, developed, modified, sold, transferred,
       or used.


RCW 36.70C.020(2)(a). Here, the decision to issue the permit was not made by

the "body or officer with the highest level of authority" to do so in San Juan

County. Thus, the decision to issue the permit was not a "land use decision."

Accordingly, LUPA did not grant authority to the superior court to review San

Juan County's decision to grant the permit.

       Our decision in Ward v. Bd. of Skagit Countv Comm'rs. 86 Wn. App. 266,

936 P.2d 42 (1997), controls the disposition of this case. In Ward, the Skagit

County hearing examiner issued a decision denying the Wards' applications for a

special use permit and a variance. Ward. 86 Wn. App. at 268-69. The Wards
thereafter filed an appeal of the hearing examiner's decision to the Board of

County Commissioners. Ward, 86 Wn. App. at 269. The Board dismissed the
appeal because it was untimely filed. JdL The Wards then filed a LUPA petition
in superior court. Id. The superior court dismissed the petition. JdL

       On appeal, we noted that the Skagit County Code categorized a hearing

examiner's decision as a "final decision," but that such a decision was

nonetheless subject to appeal to the Board of County Commissioners. Ward. 86
Wn. App. at 271. Under the Skagit County Code, no body or official had
authority to review the Board's determination. Jd Thus, we concluded that the
Board was the bodywith the highest level of authority to make determinations on
special use permits and variances in Skagit County. Jg\ Consequently, only a
decision by the Board—not the hearing examiner—constituted a "land use


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No. 68453-1-1/6



decision" pursuant to RCW 36.70C.020(1).3 jd. Because the Board did not issue
a final determination regarding the applications, the Wards failed to obtain a "land

use decision" pursuant to LUPA. Ward, 86 Wn. App. at 272.

       In explaining our decision, we stated:

       Under LUPA, a "land use decision" is "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, inter alia, "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[.]" RCW
       36.70C.020(1 )(a). In order to obtain a final determination of the
       local governmental body with the highest level of authority to make
       the determination, one must, by necessity, exhaust his or her
       administrative remedies. Thus, exhaustion of administrative
       remedies is a necessary prerequisite to obtaining a decision that
       qualifies as a "land use decision" subject to judicial review under
       LUPA.

Ward. 86 Wn. App. at 270-71. This discussion correctly interprets the

statutory provision at issue. It also correctly discusses the practicalities of
the statutory requirement. It does, however, combine two different and
distinct principles in its explanation. The first—the court's authority to
act—is a product of RCW 36.70C.030(1). The second—the petitioner's
standing to bring the petition—is the product of a different statute. We
ground ourdecision in this case on the absence of authority for the
superior court to act.

       As relevant here, according to the San Juan County Code (SJCC),


       3At the timeWard was decided, the statutory definition of "land use decision" was found
in RCW 36.70C.020(1). Former RCW 36.70C.020 (1997). The statute was amended in 2009,
setting forth the definition of "land use decision"—the content of which remained the same—in
section two of RCW 36.70C.020. Laws of 2009, ch. 419, § 1.

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No. 68453-1-1/7



development permits that are issued or approved "by the director and/or

responsible official," are subject to appeal to the San Juan County hearing

examiner. SJCC 18.80.140(B)(11). The SJCC further sets forth that, unless

appealed, "[a]ll code interpretations and administrative determinations under this

code shall be final." SJCC 18.10.030(C). The SJCC does not provide for a body

or official to review the hearing examiner's decisions. Thus, the hearing

examiner is the "officer with the highest level of authority to make" a final

determination. See RCW 36.70C.020(2). As a result, only a decision made by

the San Juan County hearing examiner—not a decision of the San Juan County

Department of Community Development and Planning—is a "land use decision"

as defined by LUPA.

       Durland contends that the provisions of SJCC 18.10.030(C) make all

unappealed decisions "final." While this may be true for purposes of applying the

SJCC, it is not true for purposes of applying LUPA. A virtually identical situation

was addressed in Ward.

       The decision of the hearing examiner is a final decision, subject to
       appellate review by the Board. Skagit County Code §
       14.04.240(16). Under the Code, there is no body with authority to
       review a determination of the Board. Thus, in Skagit County, the
       Board is the body with the highest level of authority to make a
       determination on an application for a variance or special use
       permit. A decision of the Board on such an application therefore
       constitutes a "land use decision" under RCW 36.70C.020(1), while
       a decision of a hearing examiner does not.

86 Wn. App. at 271.

       Here, the San Juan County Department of Community Development and

Planning issued the building permit in question on November 1, 2011. As
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No. 68453-1-1/8



Durland concedes, his appeal of the building permit to the San Juan County

hearing examiner, filed on December 19, 2011, was untimely. Durland failed to

obtain a final determination by the San Juan County hearing examiner and, thus,

no "land use decision" was issued such that judicial review is warranted under

LUPA. A superior court may not expand its statutory authority by varying LUPA's

definition of a "land use decision." Nor may the superior court expand its

authority in a LUPA action by reviewing that which the legislature, in enacting

LUPA, did not allocate to the court the authority to review. Therefore, the petition

was properly dismissed.

        Nevertheless, Durland raises on appeal the issue of exhaustion of

administrative remedies,4 contending that, although he did not comply with
LUPA's exhaustion requirement, this court should excuse his failure to do so

because he was not aware that the building permit had been granted until after

the deadline for filing an administrative appeal had passed. However, the

        4 Exhaustion of administrative remedies is one prerequisite for a petitioner to have
standing to bring the petition. The applicable statute provides:
             Standing to bring a land use petition under this chapter is limited to the
        following persons:
             (1) Theapplicant and the owner of property to which the land use decision is
        directed;
             (2) Another person aggrieved or adversely affected by the land use
        decision, or who would be aggrieved or adversely affected by a reversal or
        modification of the land use decision. A person is aggrieved or adversely affected
        within the meaning of this section only when all of the following conditions are
        present:
              (a) The land use decision has prejudiced or is likely to prejudice that person;
              (b) That person's asserted interests are among those that the local
        jurisdiction was required to consider when it madethe land use decision;
              (c) Ajudgment in favor of that person would substantially eliminate or
        redress the prejudice to that person caused or likely to be caused by the land use
        decision; and
             (d) The petitioner has exhausted hisor her administrative remedies to the
        extent required by law.
RCW36.70C.060.


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No. 68453-1-1/9



dispositive issue presented herein is whether the legislature conferred authority

to the superior court to review San Juan County's decision to grant the building

permit. We do not decide whether Durland had standing to bring the petition.

Granting relief from the exhaustion requirement might aid Durland in establishing

standing. It could not, however, expand the authority of the court to act.5
       The superior court properly dismissed the petition.

                                                 Ill


       Heinmiller requests an award of attorney fees on appeal. Heinmiller

prevailed in the superior court on appeal from San Juan County's issuance ofthe

building permit. Heinmiller prevails on appeal in this court. Accordingly, we grant

Heinmiller's request for an award of fees.

        Reasonable attorney fees and costs shall be awarded to the prevailing

party on appeal of a local government decision "to issue, condition, or deny a
development permit involving a site-specific rezone, zoning, plat, conditional use,
variance, shoreline permit, building permit, site plan, or similar land use approval

or decision." RCW 4.84.370(1). Fees shall be awarded if"[t]he prevailing party

on appeal was the prevailing party or substantially prevailing party before the
county, city, or town." RCW 4.84.370(1 )(a). "Under this statute, parties are
entitled to attorney fees only if a county, city, or town's decision is rendered in



        5 The doctrine of standing does not implicate the superior court's subject matter
jurisdiction. Trinity Universal Ins. Co. of Kansas v. Ohio Cas. Ins. Co..   Wn. App.        ,298
P.3d 99, 106 (2013V see also Ullerv v. Fulleton. 162 Wn. App. 596, 604-05, 256 P.3d 406, review
denied. 173 Wn.2d 1003 (2011). Whether a court has authority to act is determined independent
of any inquiry into a petitioner's standing to initiate judicial review.

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No. 68453-1-1/10



their favor and at least two courts affirm that decision."6 Habitat Watch v. Skagit

Countv. 155 Wn.2d 397, 413, 120 P.3d 56 (2005). In addition, RCW 4.84.370

"does not require that the party must have prevailed on the merits" in order to be

granted a fee award pursuant to the statute.7 Prekeges v. King Countv. 98 Wn.
App. 275, 285, 990 P.2d 405 (1999). Heinmiller has prevailed at two court levels.

An award of fees is warranted.

          Upon proper submission, a commissioner of our court will enter an

appropriate award.

          Affirmed.8

                                                           J\
          We concur:




          6 Division Two has issued conflicting decisions, both citing to Habitat Watch, regarding
the circumstances in which an appellate fee award is warranted pursuant to RCW 4.84.370. Ct
Nickum, 153Wn. App. at 383: Asche v. Bloomquist, 132 Wn. App. 784, 802, 133 P.3d 475
(2006). In Asche. the court concluded thata decision had not been rendered in favor ofthe party
requesting a fee award "because issuing a building permit is ministerial." 132 Wn. App. at 802.
By contrast, the court in Nickum determined that "[i]f a party receives a building permit and the
decision is affirmed by two courts, they are entitled tofees under [RCW 4.84.370]." 153 Wn. App.
at 383. The statute authorizing an award of fees explicitly states that it applies to building
permits. See RCW 4.84.370(1) (listing "site-specific rezone, zoning, plat, conditional use,
variance, shoreline permit, building permit, site plan, or similar land use approval or decision" as
decisions to which the statute applies) (emphasis added)). Accordingly, we find the decision in
Asche to be less persuasive than the decision in Nickum.
          7We recognize thatDivision Two ofthis court views this question differently. See Witt v.
PortofOlvmpia, 126Wn. App. 752, 758-59, ma P 3d 489 (2005V Quality Rock Prods.. Inc. v.
Thurston Countv, 126 Wn. App. 250, 275, 108 P.3d 805 (2005); Overhulse Neighborhood Ass'n
v. Thurston Countv, 94 Wn. App. 593, 601, 972 P.2d 470 (1999).
          8 Durland's motion to strike a paragraph in the brief of respondents was referred to the
panel. The challenged paragraph is not material to the resolution of this case. We deny the
motion.


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