Know How & What To Appeal: LUPA vs. WAPA Showdown

Division I’s recent decision in Klineburger v. King County is an interesting case that attempts to illuminate the boundary between Washington’s Land Use Petition Act (LUPA) and the Administrative Procedures Act (WAPA).  King County initiated a code enforcement action against the Klineburgers for allegedly constructing a mobile home on property located within the mapped floodway of the Snoqualmie River.  In response, the Klineburgers both filed an administrative appeal of the code enforcement action, and applied for a shoreline variance to permit the mobile home.  During the course of the permit review process with the County, the Washington State Department of Ecology sent King County a letter explaining Ecology’s position that the Klineburger’s property did not meet the criteria for building in a floodway, and recommending against approval of the Klineburger’s permit application.  Ecology’s letter also “reminded” the County that before it could issue the Klineburgers the requested permit, “Ecology must expressly recommend approval.”  WAC 173-158-076(1) (p. 6).  Similarly, the King County Hearing Examiner denied the Klineburger’s code enforcement appeal, reasoning: “Once Ecology had denied the Klineburger request for a floodway exemption, that determination was conclusive and binding on the County.”

The Klineburgers appealed the Hearing Examiner’s decision to Superior Court under LUPA.   Ecology intervened.  The Superior Court reversed the Hearing Examiner’s decision, explaining that while King County was constrained by Ecology’s recommendation, the court had jurisdiction to review Ecology’s decision, and on review, found Ecology’s decision to be clearly erroneous.

On appeal, Division I reversed the Superior Court.  Division I held that King County was bound to follow Ecology’s recommendation, and consequently, the Klineburgers’ grievance was with Ecology, not King County.  Division I reasoned that Ecology’s letter recommendation was a “decision” by a state agency, and that neither it, nor King County’s actions in reliance on that letter, was a land use decision subject to LUPA.  Division I concluded that the Klineburgers should have appealed Ecology’s “decision” to the Pollution Control Hearings Board and then to Superior Court under the WAPA – not LUPA.  Further, the Court reasoned that because the Klineburgers had not appealed Ecology’s “decision” to the PCHB, they failed to exhaust their administrative remedies and the Superior Court had no jurisdiction – either under LUPA or the WAPA – to reverse the Hearing Examiner’s decision.   The Court explained: “Here, the court had the authority under WAPA to review an Ecology determination following a PCHB decision . . . .  But by reaching the merits of Ecology’s decision before the Klineburgers had exhausted their administrative remedies, the court exercised its jurisdiction prematurely and exceeded its authority under LUPA.”  (p. 19)

Of particular note, the Court acknowledged that Ecology’s letter recommendation was “‘completely devoid of any identification” that it was an appealable decision.  The Court nevertheless held that the Klineburgers should have known to appeal Ecology’s letter recommendation to the PCHB, rather than appealing King County’s code enforcement decision under LUPA.  This decision presents yet another trap for the unwary as any opportunity to appeal Ecology’s decision under the WAPA in this case has long since expired.