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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 DEBORAH BUCK,                                 )          No. 66423-9-I
                                               )
                       Appellant,              )          DIVISION ONE
                                               )
                v.                             )
                                               )
 CITY OF SHORELINE and CRISTA                  )          UNPUBLISHED
 MINISTRIES,                                   )
                                               )          FILED: April 2, 2012
                       Respondents.            )
                                               )
                                               )

       Cox, J.  --  The Land Use Petition Act (LUPA) requires that an individual 
exhaust administrative remedies to bring an action.1  Here, Deborah Buck 

complied with this requirement by raising the issues she now pursues through 

incorporation of the comments of others during the State Environmental Policy

Act (SEPA) review process. We reverse and remand for further proceedings.  

       Deborah Buck lives next to the Crista Ministries' campus in the City of

Shoreline.  In early 2009, Crista submitted an application to the City for a Master 

Development Plan Permit (MDPP).  Within the first five years of the plan, Crista

proposed to install new practice fields, a new independent senior housing 

       1 RCW 36.70C.060(2)(d).  

No. 66423-9-I/2

center, offices, a new playing field, and a larger, renovated high school.  Crista

proposed further development for the following fifteen years.  

       In March 2009, to comply with SEPA, the City mailed a notice of Crista's

MDPP and the City's Optional Mitigated Determination of Nonsignificance

(MDNS) to neighbors within the vicinity of the proposed development.  It then 

mailed a "re-notice" in November, after receiving reports that not all citizens 

affected by Crista's proposed development received its initial letter.  The 

November notice informed all recipients that they had to the right to submit 

written comments regarding Crista's application and the proposed MDNS.  

       Buck submitted a written comment to the City on December 2, two days 

before the SEPA comment period closed.  In her letter, she stated:

              I adopt by this reference all of the comments of others 
       that deal with environmental effects and mitigations for our 
       general neighborhood. 

              My specific addition to this dialogue is the effect on my cul
       de sac whose only entrance and exit is the intersection of North 
       195th Street and Greenwood Avenue North.  This non-arterial 
       dead end road would service a new entrance to CRISTA's 
       property.[2]

       The City received 100 letters during the SEPA comment process.  These 

letters raised concerns regarding increased problems with storm water drainage, 

degradation of water quality, and construction impacts. Others also raised 

issues regarding destruction of trees and interference with wildlife and their 

habitat on Crista property, as well as destruction of historic buildings and 

       2 Clerk's Papers at 112 (emphasis added).

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No. 66423-9-I/3

environmental degradation created by the proposed playing field. 

       On December 22, after the closure of the comment period, the City issued

its SEPA threshold determination.  The City determined that Crista's proposal 

would "not have a probable significant adverse impact on the environment and 

that an environment impact statement" was not required under RCW 
43.21C.030(2)(c).3  

       After the closure of the SEPA review period and the issuance of the 

MDNS, the City's Planning Commission held three public hearings to review its 

MDNS and Crista's proposal.  Buck attended each of the three public hearings.  

It appears that her comments were limited to voicing concerns regarding the 

potential traffic problems that would be created by Crista's plans.  After public 

comment, the Planning Commission entered its Findings, Conclusions and 

Recommendations for approval. The City Council approved the MDNS, with 

some revisions.

       Buck then filed this LUPA action against both the City and Crista. In her 

complaint, Buck alleged that the City's issuance of an MDNS, rather than the 

more extensive preparation of an environmental impact statement (EIS), failed to 

address adequately numerous environmental concerns.  

       Crista moved for partial summary judgment, seeking dismissal of all

claims other than those based on Buck's complaints during the public hearings 

concerning traffic impacts from the Early Childhood Center.  The trial court 

       3 Id. at 165.

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No. 66423-9-I/4

granted Crista's motion.  It decided that Buck had failed to exhaust available 

administrative procedures and consequently did not meet the LUPA requirement 

of RCW 36.70C.060.  Thus, the court decided that Buck could only challenge 

the MDNS's approach to traffic problems near the Early Childhood Center.  

Three months later the court denied her LUPA petition. 

       Buck appeals.

                 EXHAUSTION OF REMEDIES AND STANDING

       LUPA provides the exclusive means of obtaining judicial review of land 

use decisions made by local jurisdictions, subject to statutory exceptions not 
applicable here.4 Under RCW 36.70C.060, an individual has standing to bring a 

LUPA action if she has been or would be aggrieved or adversely affected by a 

land use decision.  Under the statute, 

       A person is aggrieved or adversely affected within the meaning of 
       this section only when all of the following conditions are present:

       (a) The land use decision has prejudiced or is likely to prejudice 
       that person; 

       (b) That person's asserted interests are among those that the local 
       jurisdiction was required to consider when it made the land use 
       decision;

       (c) A judgment in favor of that person would substantially eliminate 
       or redress the prejudice to that person caused or likely to be 
       caused by the land use decision; and 

       (d) The petitioner has exhausted his or her administrative 
       remedies to the extent required by law.[5]

       4 RCW 36.70C.130; Twin Bridge Marine Park LLC v. Dep't of Ecology, 
162  Wn.2d 825, 854, 175 P.3d 1050 (2008).  

       5 RCW 36.70C.060 (emphasis added).

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No. 66423-9-I/5

       In interpreting this statute, the supreme court has held that to exhaust 

one's administrative remedies, an individual need not use technical, legal 
language.6 Where SEPA is at issue, this more relaxed exhaustion standard is in 

keeping with SEPA's purpose, which "'combine[s] environmental considerations 
with public decisions.'"7 "SEPA 'mandates governmental bodies to consider the 

total environmental and ecological factors to the fullest in deciding major 
matters.'"8  

       We may look to opinions by federal courts addressing standing in the 
National Environmental Policy Act (NEPA) context for guidance.9 "[I]t should be 

noted that SEPA is patterned after [NEPA] and contains language almost 

identical to that of the federal act.  It is well settled that when a state borrows 

federal legislation it also borrows the construction placed upon such legislation 
by the federal courts."1

       The Ninth Circuit has summarized the purpose of administrative 

exhaustion in NEPA cases as one that permits "administrative agencies to utilize 

       6 Citizens for Mount Vernon v. City of Mount Vernon, 133 Wn.2d 861, 870, 
947 P.2d 1208 (1997).

       7 West Main Assocs. v. City of Bellevue, 49 Wn. App. 513, 518, 742 P.2d 
1266 (1987) (quoting RCW 43.21C.075(1)). 

       8 Id. (quoting Eastlake Cmty. Council v. Roanoke Assoc., Inc., 82 Wn.2d 
475, 490, 513 P.2d 36 (1973)).

       9 Juanita Bay Valley Cmty. Ass'n v. City of Kirkland, 9 Wn. App. 59, 68-
69, 510 P.2d 1140 (1973).

       1 Id. (internal citations omitted). 

                                               5 

No. 66423-9-I/6

their expertise, correct any mistakes, and avoid unnecessary judicial intervention 

in the process. . . .  [A]lerting the agency in general terms will be enough if the 

agency has been given 'a chance to bring its expertise to bear to resolve [the] 
claim.'"11 The broad interpretation of exhaustion in the NEPA context flows from 

the purpose of the statute: "to ensure that agencies carefully consider 

information about significant environmental impacts and guarantee that relevant 
information is available to the public."12 Thus, an "'agency bears the primary 

responsibility to ensure that it complies with NEPA . . . and an . . . EIS' flaws 

might be so obvious that there is no need for a commentator to point them out 
specifically in order to preserve its ability to challenge a proposed action.'"13  

       More specifically, incorporation by reference in the NEPA context has 

been held sufficient to exhaust administrative remedies.  In State of California v. 
Bergland,14 California challenged the U.S. Forest Service's proposed land use of 

national forest land in its state.  The Forest Service argued that California was 

barred from raising many of its arguments because it failed to raise them during 
the comment process.15  In response, California pointed out that its comments, 

       11 Lands Council v. McNair, 629 F.3d 1070, 1076 (9th Cir. 2010) (quoting 
Native Ecosystems Council v. Dombeck, 304 F.3d 886, 899 (9th Cir. 2002); 
citing Buckingham v. U.S. Dep't of Agric., 603 F.3d 1073, 1080 (9th Cir. 2010)). 

       12 Save the Peaks Coalition v. U.S. Forest Serv., __ F.3d __, 2012 WL 
400442, * at 8 (9th Cir. 2012) (internal quotation marks and citations omitted).

       13 Oregon Natural Desert Ass'n v. McDaniel, 751 F. Supp. 2d 1151, 1158 
(D. Or. 2011) (quoting Dep't of Transp. v. Public Citizen, 541 U.S. 752, 765, 124 
S. Ct. 2204, 159 L. Ed. 2d 60 (2004)). 

       14 483 F. Supp. 465 (E.D. Cal. 1980).

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No. 66423-9-I/7

although brief, incorporated the exhaustive comments made by others.16  

Further, every objection made in its lawsuit was raised during the comment 
process and tabulated by the Forest Service.17 The court then noted that the 

failure to exhaust administrative remedies is a disfavored doctrine in the NEPA 
context.18 It concluded that California had properly raised the contested issues 

below.19  

       Here, as in Bergland, Buck incorporated by reference "all of the 

comments of others that deal with environmental effects and mitigations for our 

general neighborhood" in her written comments prior to the close of the comment 

period for SEPA. And there were 100 letters sent to the City during the SEPA 

comment period that raised specific environmental concerns.  In these 

comments, Buck's neighbors raised issues about the effect of Crista's plans on

(1) the historic buildings on Crista's campus; (2) trees and wildlife in the 

surrounding area; (3) streamwater run-off and water quality; and (4) traffic. 

Without question, the City was aware during the SEPA process of the concerns 

that Buck later raised in this case. 
       In King County v. Washington State Boundary Review Board,2 the 

       15 Id. at 473 n.5.

       16 Id.

       17 Id.

       18 Id. (citing County of Suffolk v. Sec'y of Interior, 562 F.2d 1368, 1385 (2d 
Cir. 1977).

       19 Id.
       2 122 Wn.2d 648, 860 P.2d 1024 (1993).

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No. 66423-9-I/8

supreme court noted that the LUPA rules requiring exhaustion further the 

purposes of:

       (1) discouraging the frequent and deliberate flouting of 
       administrative processes; (2) protecting agency autonomy by 
       allowing an agency the first opportunity to apply its expertise, 
       exercise its discretion, and correct its errors; (3) aiding judicial 
       review by promoting the development of facts during the 
       administrative proceeding; and (4) promoting judicial economy by 
       reducing duplication, and perhaps even obviating judicial 
       involvement.[21]

Here, all of these purposes were served.  Buck did not flout the administrative 

process, but complied with it fully, submitting a letter detailing her complaints 

about Crista's proposal.  The City's autonomy was preserved as it was alerted to 

Buck's concerns through all of the comments it received during the SEPA 

process.  Further, these comments helped develop a record.  Finally, as Buck 

points out, her incorporation by reference of the comments made by others 

reduced duplication and promoted judicial economy. Buck properly exhausted 

her administrative remedies. 

       There is no dispute whether Buck satisfies the other requirements of 

RCW 36.70C.060.  The LUPA standing requirements are broad: "In general, 

parties owning property adjacent to a proposed project and who allege that the 

project 

       21 Id. at 669 (citing Fertilizer Institute v. U.S. Environmental Protection 
Agency, 935 F.2d 1303, 1312-13 (D.C. Cir. 1991)).

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No. 66423-9-I/9

will injure their property have standing."22  Because Buck's property is adjacent

to Crista's property, and, further, because she has detailed how she would be 

negatively affected by its MDPP, Buck has standing to bring her LUPA petition. 

       Both Crista and the City base much of their argument regarding 

administrative exhaustion on Citizens for Mount Vernon v. City of Mount 
Vernon.23 That case does not support their positions.

       They point out that in Citizens, the supreme court reiterated its holding in 

Boundary Review Board that for an issue to be properly raised before an 

administrative agency, "there must be more than simply a hint or a slight 
reference to the issue in the record."24 In Citizens, the court rejected the 

developer's argument that the more restrictive statutory exhaustion requirements 

of the Administrative Procedure Act should be required under RCW 36.70C.060, 
but the court rejected this argument.25 Instead, it held that because Citizens 

"participated in all aspects of the administrative process and raised the 

appropriate project approval issues[,]" it had exhausted its administrative 
remedies.26 The court specifically rejected the argument that because Citizens 

       22 Suquamish Indian Tribe v. Kitsap County, 92 Wn. App. 816, 829-30, 
965 P.2d 636 (1998) (citing Anderson v. Pierce County, 86 Wn. App. 290, 300, 
936 P.2d 432 (1997)). 

       23 133 Wn.2d 861, 947 P.2d 1208 (1997).

       24 Id. at 869.

       25 Id.

       26 Id. at 869-70.

                                               9 

No. 66423-9-I/10

failed to "specifically raise the technical, legal argument of compatibility between 

R-2A zoning and [] commercial PUD demands[,]" it consequently lacked 
standing.27 The court stated that "[i]ndividual citizens did not have to raise 

technical, legal arguments with the specificity and to the satisfaction of a trained 
land use attorney during a public hearing."28 Thus, the holding of Citizens

rejected a strict interpretation of administrative exhaustion in the LUPA context.  

Thus, Crista and the City's selective focus on one quotation from Citizens does

not support their arguments.  

       Crista argues that Buck is asking the courts to expand the doctrine of third-

party standing.  This is incorrect.

       The doctrine of third-party standing deals, particularly, with cases brought 
by plaintiffs who have no injury.29 Buck has an injury under our LUPA 

jurisprudence, as we discussed previously in this opinion.3 Thus, this is not a 

case of third-party standing. 

       The City and Crista also contend that Buck's failure to raise, by 

incorporation or otherwise, issues other than traffic during the City's public 

hearings on the project also weigh against her exhaustion argument.  We 

disagree.

       27 Id. at 870.

       28 Id.

       29 Los Angeles Police Dep't v. United Reporting Pub. Corp., 528 U.S. 32, 
38, 120 S. Ct. 483, 145 L. Ed. 2d 451 (1999).

       3 Id.

                                              10 

No. 66423-9-I/11

       These hearings occurred after the City had made its threshold SEPA 

determination.  Buck properly followed the SEPA appeals statute, RCW 

43.21C.075(6)(c), which requires that any appeal of a SEPA determination "be 

of the governmental action together with its accompanying environmental 

determinations."  Thus, waiting until the City had approved its final plan prior to 

bringing her LUPA challenge does not bar her claims in this action.  

                                  ATTORNEY FEES

       Crista and the City request attorney fees on appeal.  We deny their 

request.

       Under RCW 4.84.370, reasonable attorney fees and costs shall be 

awarded to the prevailing or substantially prevailing party on appeal, so long as 

the party prevailed in all other judicial proceedings. Because the City and Crista

do not prevail before this court, we deny their requests.  

       We reverse and remand for further proceedings. 

WE CONCUR:

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No. 66423-9-I/12

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