Opinion
No. 52076-8-I
Filed: March 28, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 99-2-52150-1. Judgment or order under review. Date filed: 02/27/2003. Judge signing: Hon. Dean S. Lum.
Counsel for Appellant(s), James J. Klauser, Rowley Klauser LLP, Seattle Business Center, 557 Roy St Ste 160, Seattle, WA 98109-4259.
Robert Clayton Rowley, Rowley Kauser LLP, 557 Roy St Ste 160, Seattle, WA 98109-4259.
Counsel for Respondent(s), Michael B. Tierney, Micheal B. Tierney PC, 2955 80th Ave SE Ste 205, Mercer Island, WA 98040-2975.
Manfred and Margie Duske (Duske) received a binding site plan approval for a condominium complex in the City of Black Diamond. After Duske constructed about a third of the proposed units, the City sent Duske a letter imposing a moratorium on issuing building permits for the project, citing health and safety concerns. Over the next several months, the City identified the specific concerns that it had and Duske attempted to persuade the City that the concerns were not valid. Eventually Duske attempted to file a building permit application with the City. The City refused to accept the application. Duske did not seek any further review within the City decision-making structure. Instead, Duske sued the City in King County Superior Court for a variety of claims, including relief under the Land Use Petition Act (LUPA) and for damages under chapter 64.40 RCW. Because Duske failed to exhaust his administrative remedies, there was no land use decision under LUPA and Duske may not bring a claim for damages under chapter 64.40 RCW.
FACTS
This case involves a long and somewhat complicated series of events. The issues in this case were hotly contested by both parties. Because of our resolution of this case, however, only a brief recitation of the facts is necessary.
Manfred and Margie Duske are the current owners and developers of the Diamond Village condominium complex in the City of Black Diamond. The City initially approved a Binding Site Plan for the project in February 1992 under Black Diamond Municipal Code (BDMC) 18.32. Duske began to develop the property. In November 1998, the City sent a letter to Duske stating that it has health and safety concerns regarding the development and that it was imposing a moratorium on issuing building permits until the health and safety concerns were addressed. Over the next several months, the City identified concerns with the storm water system, water main, and sewer system. The City required Duske to address these issues and sign a Memorandum of Understanding to record the agreement. Duske disputed many of the issues and requirements submitted by the City and refused to sign the memorandum.
On December 8, 1999, Duske attempted to submit an application to the City for a building permit. The City refused to accept the application. On December 29, 1999, Duske filed suit against the City in King County Superior Court seeking various forms of relief including a claim under the LUPA and an action for damages.
The trial court bifurcated the case and ultimately determined that it had LUPA jurisdiction. The trial court allowed the parties to conduct discovery and supplement the LUPA record. During the course of the LUPA proceeding, Duske attempted to submit another building permit application to the City. The City again refused to accept the application. Duske appealed this decision to the City Council.
Duske eventually abandoned this appeal.
After holding the LUPA hearing, the trial court orally denied Duske's LUPA petition, finding that `some of these bases would have been justified and the City would have been justified in denying the building permit at that particular time.' Report of Proceedings (RP) (July 3, 2001) at 7. Duske then switched positions and requested that the trial court order that it did not have LUPA jurisdiction because the issuance of building permits was ministerial and not a land use decision under LUPA.
After dismissing several claims on summary judgment and entering a stipulated order resolving other issues, the trial court held a damages hearing. The trial court found in favor of the City and dismissed Duske's claims under chapter 64.40 RCW. The City then moved for an award of attorney fees under RCW 64.40.020(2). The trial court denied the City's motion.
Duske filed a timely notice of appeal, and the City filed a cross-notice of appeal.
ANALYSIS
The Land Use Petition Act was enacted in 1995. `The purpose of [LUPA] is to reform the process for judicial review of land use decisions made by local jurisdictions, by establishing uniform, expedited appeal procedures and uniform criteria for reviewing such decisions, in order to provide consistent, predictable, and timely judicial review.' RCW 36.70C.010.
The City argues that there was no land use decision because Duske did not exhaust his administrative remedies. For LUPA to apply, there must be a `final determination' by the `local jurisdiction's body or officer with the highest level of authority to make the determination, including those with authority to hear appeals[.]' RCW 36.70C.020(1). This requires a party to exhaust all administrative remedies, even if they seem futile. Ward, 86 Wn. App. 266, 270-71, 936 P.2d 42 (1997). Under Title 18 of the BDMC,
Any order, recommendation, permit, decision or determination made by a city official in the enforcement or administration of this title shall be final and conclusive, unless within ten days of the date of the decision being appealed, any person who deems himself aggrieved by said decision files an appeal with the city council. . . .
BDMC 18.12.040. Duske argues that this procedure is not applicable because it appears in the City's zoning code. While this is in the zoning code, the specific provision deals with the enforcement and administration of the code. BDMC 18.12.20 provides that building permits are required before structures can be built, moved, added, or structurally altered and that these permits are to be issued by an enforcement officer. The issuing of building permits is part of the administration and enforcement of the zoning code, and therefore, the appeals procedure in BDMC 18.12.040 is applicable in this case. In fact, at one point, Duske attempted to file another permit application and after he was turned away by the City, he appealed that decision to the Black Diamond City Council. It is undisputed that Duske did not file an appeal of the official's refusal to accept his permit application at issue here to the City Council. Thus, Duske failed to exhaust his administrative remedies and the trial court should have dismissed Duske's LUPA petition on this ground.
The next issue we address is whether Duske is entitled to bring a damages claim against the City under chapter 64.40 RCW. The City argues that because Duske did not pursue administrative remedies, he is not entitled to seek damages under RCW 64.40.010. A damages claim under this statute must `be commenced only within thirty days after all administrative remedies have been exhausted.' RCW 64.40.030. Thus, a damages claim under this statute requires a developer to exhaust all administrative remedies. Because Duske did not exhaust his administrative remedies by appealing to the city council under BDMC 18.12.040, he does not have a viable claim under RCW 64.40.030.
The City argues that the trial court erred in denying its request for attorney fees. Under RCW 64.40.020(2), `[t]he prevailing party in an action brought pursuant to this chapter may be entitled to reasonable costs and attorney's fees.' An award of attorney fees under this statute is discretionary. The City argues that the trial court's ruling that the City was acting to protect the public health and safety, coupled with Duske's `extraordinary' resistance to completing the infrastructure repairs, the trial court abused its discretion in denying attorney fees. The City, however, does not meet the abuse of discretion requirement. There was evidence that the City did retreat from at least some of its demands and that it may have been less than accommodating in negotiating with Duske. Under the circumstances, we do not find an abuse of discretion in the trial court's refusal to award attorney fees under RCW 64.40.020(2).
The City also argues that it is entitled to attorney fees on appeal. Under RCW 4.84.370(1)(b), attorney fees on appeal shall be awarded to the prevailing party if `[t]he prevailing party on appeal was the prevailing party or substantially prevailing party in all prior judicial proceedings.' Because the City prevailed before the superior court and prevails before this court, it is entitled to attorney fees under RCW 4.84.370, upon compliance with RAP 18.1.
Affirmed.
BECKER and AGID, JJ., Concur.