End the Prison Indus. Complex v. King Cnty.

END THE PRISON INDUSTRIAL COMPLEX ("EPIC"), Appellant,YOUTH UNDOING INSTITUTIONAL RACISM, EUROPEAN DISSENT, BLOCK THE BUNKER, COMMUNITY 2 COMMUNITY, ONE AMERICA, AFRICAN AMERICAN LEADERSHIP FORUM, REV. ANDREW CONLEY-HOLCOM, ARTIFACTS, ARTS CORPS, AUTONOMOUS ACTIONS AGAINST PRISONS, REV. BETH CHRONISTER, BUDDHIST PEACE FELLOWSHIP, COALITION OF ANTI-RACIST WHITES, SEATTLE CISPES, COMMITTEE ON OPPRESSION AND RACISM IN EDUCATION, COMMUNITY PASSAGEWAYS, EVANS PEOPLE OF COLOR, HIDMO, INCARCERATED MOTHERS ADVOCACY PROJECT, LATINO/A LAW STUDENTS ASSOCIATION, LATINO ADVOCACY, MIGRANT JUSTICE GROUP, NO NEW JIM CROW, NWDC RESISTANCE, PARTNERSHIP FOR COMMUNITY & DIVERSITY, POST-PRISON EDUCATION PROGRAM, RABBI DAVID BASIOR, RACE ACTION COMMITTEE AT EVANS, RB RESTORATIVE JUSTICE, REAL CHANGE, RED NOSES, REV. RICK DERKSEN, PROFESSOR ROSE ERNST, RACE & CLIMATE JUSTICE, RISING TIDE SEATTLE, SEA SOL, SEATTLE MENNONITE CHURCH, STOP VEOLIA SEATTLE, SURGE, TENANTS UNION OF WASHINGTON STATE, TRANSIT RIDERS UNION, UNIVERSITY UNITARIAN CHURCH, WA-BLOC, YOUTH SPEAKS SEATTLE, Petitioners/Plaintiffs, v. KING COUNTY, BALFOUR BEATTY CONSTRUCTION, D/B/A HOWARD S. WRIGHT AND PATRICK DONNELLY, Respondents,CITY OF SEATTLE, Defendant.^†

No. 77212-1-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

May 29, 2018

UNPUBLISHED OPINION

DWYER, J. - End the Prison Industrial Complex (EPIC) appeals from an order of the King County Superior Court dismissing its Land Use Petition Act (LUPA)¹ petition and its mandamus actions against King County and the City of Seattle. EPIC contends that the superior court erred by dismissing EPIC's LUPApetition challenging the decisions of the Seattle Department of Construction and Inspections (SDCI) on the basis that the LUPA petition was untimely filed and by dismissing EPIC's mandamus actions on the basis that the actions did not satisfy the statutory requirements for mandamus relief.

Concluding that the superior court did not err by dismissing EPIC's claims, we affirm.

I

In August 2012, voters in King County approved a levy to fund a proposal known as the Children and Family Justice Center Project. The Project involves the demolition of an existing juvenile justice complex located in Seattle known as the Youth Services Center and the construction of a new complex to be known as the Children and Family Justice Center. The new complex is to be comprised of structures including courtrooms, office space, detention housing, a school, and a parking structure. King County was designated the lead agency for the Project and is also the owner of the property in question.

King County, in its capacity as lead agency for the Justice Center Project, initiated and completed a State Environmental Policy Act (SEPA)² review of the Project's environmental impact. In 2013, King County issued a Mitigated Determination of Non-Significance (MDNS), indicating that the Project would not have a probable significant adverse impact on the environment.

Thereafter, in its capacity as property owner and developer, King County requested a Master Use Permit (MUP) from SDCI to modify or waive certainbuilding-width and setback development standards that the city code made applicable to structures categorized as a youth service centers.

On December 22, 2016, SDCI issued a notice of decision that it had approved King County's permit request. The notice of decision set forth that SDCI would issue a MUP to King County that would authorize King County to commence the demolition and construction phase of the Justice Center Project.

Two decisions set forth in SDCI's notice of decision regarding King County's MUP request are pertinent to this appeal. First, the notice of decision set forth that SDCI was waiving and modifying the City's structure-width and setback development standards regarding youth service centers in order to accommodate the Justice Center Project. Additionally, SDCI's notice of decision set forth that its approval of King County's MUP request was conditioned on both King County's acknowledgement and filing of specified management plans required by the City and King County's compliance with its MDNS, including the environmental mitigation conditions set forth therein.

As pertinent here, SDCI's notice of decision also set forth a statement that read: "Appeals of this decision must be received by the Hearing Examiner no later than 1/5/2017." Prior to January 5, 2017, EPIC filed with the City's Hearing Examiner an administrative appeal challenging SDCI's decisions regarding the development standards for youth service centers and the SEPA conditions that SDCI had imposed. EPIC did not file a LUPA petition in the King County Superior Court challenging SDCI's decisions at this time.

King County and Balfour Beatty Construction, d/b/a Howard S. Wright and Patrick Donnelly, jointly moved to dismiss EPIC's administrative appeal. On March 1, 2017, the Hearing Examiner dismissed EPIC's appeal on the basis that the City's land use code³ did not authorize the Examiner to resolve EPIC's administrative appeal challenging SDCI's decisions. Specifically, the Examiner concluded that, pursuant to the City's land use code, "the Department's decision modifying certain development standards for the Children and Family Justice Center project" and "the City's decision imposing SEPA conditions on the Family and Justice Center project" are "not subject to appeal to the Hearing Examiner." EPIC sought reconsideration of the Examiner's decisions, which was denied on March 28, 2017.

On April 14, 2017, 21 days after the Hearing Examiner's denial of reconsideration issued, EPIC filed a LUPA petition in the King County Superior Court challenging both SDCI's decisions and the Hearing Examiner's ruling that the Examiner did not have authority to resolve an administrative appeal from the challenged SDCI decisions. EPIC also filed a complaint alleging that King County and Balfour Beatty had violated SEPA and that mandamus relief against the City of Seattle, King County, and Balfour Beatty was warranted.

Balfour Beatty moved to dismiss EPIC's LUPA petition. King County moved to dismiss EPIC's complaint. They also joined one another's dismissalmotions.⁴ The superior court granted both motions and dismissed EPIC's LUPA petition and complaint with prejudice.⁵

II

A

EPIC contends that the superior court erred by dismissing as untimely its LUPA petition challenging SDCI's decisions. We disagree.

"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)." Durland v. San Juan County, 175 Wn. App. 316, 320, 305 P.3d 246 (2013), aff'd, 182 Wn.2d 55, 340 P.3d 191 (2014) (citing West v. Stahley, 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.'" Durland, 175 Wn. App. at 320 (quoting West, 155 Wn. App. at 696). When the facts are not at issue, we review de novo a superior court ruling that a LUPA petition was untimely. Nickum v. City of Bainbridge Island, 153 Wn. App. 366, 373-74, 223 P.3d 1172 (2009) (citing Wells v. Olsten Corp., 104 Wn. App. 135, 139, 15 P.3d 652 (2001)).

The stated purpose of LUPA is to provide "consistent, predictable, and timely judicial review." RCW 36.70C.010. Hence, "[a]bsent specific, limitedexceptions,⁶ LUPA is 'the exclusive means of judicial review of land use decisions.'" Durland, 175 Wn. App. at 321 (quoting RCW 36.70C.030(1)).

LUPA invokes the appellate jurisdiction of the superior court; accordingly, "the superior court has only the jurisdiction as conferred by law." Conom v. Snohomish County, 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, .030(1).

Durland, 175 Wn. App. at 321.

LUPA defines a "land use decision," in pertinent part, as

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) 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(2).⁷

Consequently, to ensure timely review of land use decisions, "LUPA requires that a party file a petition for review with the superior court within 21 days of the date [that] a land use decision is issued." Vogel v. City of Richland, 161 Wn. App. 770, 776-77, 255 P.3d 805 (2011) (citing RCW 36.70C.040(3)).

This deadline is "stringent." Asche v. Bloomquist, 132 Wn. App. 784, 795, 133 P.3d 475 (2006), review denied, 159 Wn.2d 1005 (2007). It reflects a strong public policy of finality in land use decisions. Samuel's Furniture[, Inc., v Dep't of Ecology], 147 Wn.2d [440, ]458-59 [, 54 P.3d 1194, 63 P.3d 764 (2002)]. Even illegal land use decisions will be allowed to stand if not timelychallenged under LUPA. Habitat Watch v. Skagit County, 155 Wn.2d 397, 407, 120 P.3d 56 (2005).

Chumbley v. Snohomish County, 197 Wn. App. 346, 359, 386 P.3d 306 (2016). "Numerous opinions confirm that the 21 day LUPA deadline is absolute." Nickum, 153 Wn. App. at 382 (citing Habitat Watch, 155 Wn.2d at 406-07; Chelan County v. Nykreim, 146 Wn.2d 904, 932-33, 52 P.3d 1 (2002); Spice v. Pierce County, 149 Wn. App. 461, 467, 204 P.3d 254 (2009); Keep Watson Cutoff Rural v. Kittitas County, 145 Wn. App. 31, 37-38, 184 P.3d 1278 (2008)).

"Thus, challenges brought after the expiration of deadlines for filing local administrative appeals or after LUPA's 21-day time period for filing an appeal constitute impermissible collateral attacks." Stientjes Family Tr. v. Thurston County, 152 Wn. App. 616, 624 n.8, 217 P.3d 379 (2009) (citing Habitat Watch, 155 Wn.2d at 410-11; Nykreim, 146 Wn.2d at 933: ...