The Washington State Court of Appeals upheld the February 3, 2012 Superior Court's decision dismissing Michael Durland's and Kathleen Fennel's suit against the county and the couple's Deer Harbor neighbor.
The court affirmed that the granting of the building permit to Wes Heinmiller and Alan Stameisen did not constitute a "land use decision".
The court stated: "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 (Land Use Petition Act)." PDF of DECISION
The judges wrote in their July 1 decision:
"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.
The court documents state:
"San Juan County Department of Community Development and Planning issued the building permit in question on November 1, 2011. As 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, 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."
Whether Durland had standing despite missing the deadline was not the issue in the case and was not taken up by the court.
Durland must pay attorney fees for Heinmiller for both the Superior Court and Court of Appeals decisions. Attorney fees can be awarded because the defendant prevailed in two courts.
Durland has not made a decision yet on whether he will appeal the Court of Appeals decision.
Durland was more successful in a October 27, 2012 Court of Appeals decision. The case involved roof pitch, ADU square footage calculations, statuatory damages, and if compliance plans are "land use decisions".
The Court upheld part of a prior Superior Court ruling, remanded some of the issues back to the Hearing Examiner and reversed part. Durland prevailed in some parts and Heinmiller did in others.
The court documents state:
"Durland owns property in Deer Harbor on Orcas Island, in San Juan County, which is currently used as a boat yard and marina. Heinmiller's predecessor-in-interest, William G. Smith, owned the property adjacent to and south of the Durland property ("Heinmiller property").
In 1981, the County issued a building permit for a storage barn to Smith. The permit approved a barn that was to be built ten feet from the property line shared with the Durland property.
A barn was constructed that year. In 1990, Durland sought a conditional use permit and a shoreline permit. A property line survey revealed that the barn on the Heinmiller property was in fact located only 1.4 feet from the property line.
To address this issue, Durland and Smith executed a "Boundary Line Agreement and Easement" that prevented Durland from building within 20 feet of the barn.
The agreement established a common boundary line and, because the new line did not correct the barn's location with respect to setback requirements, created a 20-foot-wide "easement" (actually a restrictive covenant) on Durland's property that terminated upon the removal or destruction of the barn.
Durland agreed to the restrictive covenant because he saw a benefit from the barn, which provided a buffer between his industrial property and any residential uses on the far side of the barn. He did not, however, want the barn to be used for residential purposes for fear of conflicts with the industrial use of his property.
Around 1995, Heinmiller purchased the property from Smith. In 1997, he converted a portion of the barn to an ADU but did not secure any building or shoreline permits for this work, in violation of San Juan County Code (SJCC) requirements.
In 2008, Heinmiller filed an application for an upland conditional use permit seeking authorization to use the ADU as a vacation rental unit.
Because of the application, the County became aware of the ADU conversion. In February 2008, the County issued a "notice of correction" to Heinmiller, requiring the ADU to be demolished.
Heinmiller negotiated with the County regarding the notice of correction. The County agreed to allow him to seek after-the-fact permits for the ADU before requiring demolition.
Accordingly, on April 25, 2008, Heinmiller and the County executed an agreed compliance plan ("compliance plan") the SJCC.
It also stated, in the "Background" section, that the County recognized that the private restrictive covenant brought the barn into conformance with the ten-foot setback requirement that applied when the barn was constructed.
Heinmiller applied for a building permit, change-of-use permit, and ADU permit as contemplated by the compliance plans. The County approved the permits on November 23 and 24, 2009.
On December 11, Durland filed an administrative appeal challenging the permits.
He raised the following issues:
1. Whether the permits are consistent with regulations regarding land developed in violation of local regulations.
2. Whether the barn complies with setback requirements.
3. Whether the barn complies with building width limitations for properties with shoreline frontage.
4. Whether the barn complies with waterfront setback requirements for accessory structures.
5. Whether the appropriate shoreline approvals, such as a shoreline conditional use permit, substantial development permit, or shoreline exemption have been obtained.
6. Whether the ADU complies with the living area limitation of 1,000 square feet.
7. Whether the barn complies with roof pitch requirements in the Deer Harbor Hamlet Plan.
The Court of Appeals upheld the HEX and Superior Court's rulings about the roof pitch. The hearing examiner ruled that the Deer Harbor roof pitch requirements adopted in 2007 did not apply to the building because it was constructed in 1981 and was therefore a grandfathered nonconforming use.
The Court of Appeals affirmed the HEX ruling but on the same grounds as the Superior Court - that the County's interpretation would be given deference.
Regarding the determination of the living area of the ADU. Areas with a height of less than 5-feet hadn't been included in the calculation of living area. The Court of Appeals agreed with Durland that they should be included.
The Court ruled that the compliance plan was not a final land use decision.
The HEX and Superior Court had ruled otherwise.
The County hearing examiner considered Durland's appeal at an evidentiary hearing on May 6, 2010.
The hearing examiner determined that the compliance plans were land use decisions subject to LUPA's requirement that appeals be filed within 21 days of issuance. He concluded the compliance plans had resolved certain issues that were now time-barred and could not be raised in an appeal of the permits.
Under the Land Use Petition Act, chapter 36.70Cg a petition challenging a land use decision must be filed within 21 days of the issuance of the land use decision. Furthermore, a party may not collaterally challenge a land use decision for which the appeal period has passed through a challenge to a subsequent land use decision.
If the compliance plans were land use decisions, Durland would not be allowed to raise certain issues because he missed the LUPA deadline.
Durland was awarded statutory costs by Superior Court.
Heinmiller contends Durland was not the prevailing party because he prevailed only on the living area issue. He contends that the court's ruling, furthermore, did not destroy his ability to maintain the ADU because he can pursue planning revisions with the County and reconfigure the ADU's size.
We conclude the superior court did not abuse its discretion.
Durland succeeded in the sense that he halted Heinmiller's plan to maintain the ADU by invalidating the ADU permit. The superior court ruled that the ADU was not in conformance with the SJCC because of the living area and remanded the matter to establish compliance with SJCC 18.20.120.
At this point it is uncertain whether Heinmiller will be able to maintain the ADU.
The October 29, 2012 Court of Appeals decision reversed in part, affirmed in part, and remanded issues to the county hearing examiner for further proceedings.
The July 1, 2013 ruling dismissed a different suit filed by Durland which focused on the building permit.