Despite "Harsh and Unfair" Results, State Supreme Court Enforces Land Use Appeal Requirements
In Durland v. San Juan County, 182 Wn.2d 55, 340 P.3d 191 (2014), the Washington Supreme Court reaffirmed the importance of strict compliance with the procedural requirements of the Land Use Petition Act (LUPA), RCW Ch. 36.70C, even in circumstances where the objecting property owner did not receive notice of the land use decision. The Court upheld the dismissal of a LUPA petition challenging the issuance of a neighbor’s building permit because the petitioners failed to exhaust their administrative remedies. The county was not required to provide any public notice of the building permit, and the petitioners did not learn about the permit until after the deadline had passed to file an administrative appeal to the hearing examiner. The Court concluded that although this result “may seem harsh and unfair,” allowing the petitioners to pursue their untimely challenge would be contrary to LUPA’s statutory scheme and caselaw emphasizing the importance of certainty, predictability, and finality of land use decisions.
The Durland decision underscores the importance of local code provisions for administrative appeals of land use decisions. LUPA’s definition of “land use decision” means that exhaustion of administrative remedies is always required before the courts may exercise land use review jurisdiction under LUPA. Another lesson of the Durland case is that concerned property owners should understand and utilize available tools for obtaining notice of building permits. Although cities and counties are required under state law to provide notice to adjacent landowners of certain types of land use decisions, building permits are not included in that mandate. Local land use regulations might provide due process protection for neighboring property owners, but – as the Durland decision makes clear – that is not necessarily the case everywhere.