Laurie Ferguson v. City of Dayton, et al

Case Date: 06/05/2012

Court of Appeals Division III
State of Washington

Opinion Information Sheet

Docket Number: 29703-9
Title of Case: Laurie Ferguson v. City of Dayton, et al
File Date: 06/05/2012

Appeal from Columbia Superior Court
Docket No: 09-2-00063-7
Judgment or order under review
Date filed: 01/11/2011
Judge signing: Honorable John W. Lohrmann

Authored byKevin M. Korsmo
Concurring:Stephen M. Brown
Dennis J. Sweeney


Counsel for Appellant(s)
 Andrea Burkhart  
 Burkhart & Burkhart PLLC
 6 1/2 N 2nd Ave Ste 200
 Walla Walla, WA, 99362-1855

Counsel for Respondent(s)
 Kimberly Rae Boggs  
 Nealey & Marinella
 338 E Main St
 Po Box 7
 Dayton, WA, 99328-0007

 Thomas Goddard   (Appearing Pro Se)
 Po Box 291
 Dayton, WA, 99328

                                                                       JUNE 5, 2012
                                                                In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III

                                     DIVISION THREE

LAURIE FERGUSON,                                          No.  29703-9-III
                             Appellant,         )
         v.                                     )
                                                )         PUBLISHED OPINION
CITY OF DAYTON, a Washington                    )
Municipal corporation, and THOMAS               )
GODDARD, in his individual capacity,            )
                             Respondents.       )
       Korsmo, C.J.  --  When an administrative appeal process is provided, a LUPA1

petition filed within 21 days of the final administrative action is timely even if the 

ultimate challenge is to a land use action taken more than 21 days earlier.  We reverse the 

trial court and remand this matter for further proceedings.


       The City of Dayton (City) issued a building permit to Thomas Goddard that 

allowed him to erect a 36-foot by 30-foot pole building on his property.  The building 

       1 Land Use Petition Act, ch. 36.70C RCW. 

No. 29703-9-III
Ferguson v. City of Dayton

was 5 feet from the property line of his neighbor, appellant Laurie Ferguson, and only 8

feet from her house.  The permit issued August 14, 2009.  The City's planner advised Mr. 

Goddard that the roof could not exceed 10 feet in height because of its proximity to the 

property line.  

       The City subsequently changed its interpretation and the planner advised Mr. 

Goddard on September 2, 2009, that the building height was to be measured from the 

finished grade to the top of the wall plate line.  In response to a query from Ms. Ferguson, 

the planner explained that the "wall plate line" was the top of the wall where the roof 

system attaches.  At the September 28, 2009 city council meeting, Ms. Ferguson 

questioned the building permit and asked that the project be stopped.  She also asked that 

the planner's interpretation be reviewed.  The mayor referred the matter to the City's 

planning committee.

       At the October 12, 2009 city council meeting, the mayor announced that the 

mayor, the planning committee, and staff had met and determined that the building permit 

was valid.  An attorney for Ms. Ferguson then contacted the City and challenged the 

interpretation of the height requirement provided for by Dayton Municipal Code (DMC) 
5-12.120.2 A LUPA petition was filed October 27, 2009.  The City moved to dismiss the 

       2 That provision limits buildings within 10 feet of the property line to a height of 
10 feet.  DMC 5-12.050 defines "Building or structure height" as "the vertical distance 
measured from the mean elevation of the finished grade around the building to the highest 


No. 29703-9-III
Ferguson v. City of Dayton

petition on the basis that Ms. Ferguson had not exhausted her administrative remedies by 

appealing to the Board of Adjustment.

       The City subsequently realized that there was no Board of Adjustment; it also 

admitted that the planning committee that had considered Ms. Ferguson's initial challenge 

was not the Planning Commission that was assigned the task of hearing appeals of 

administrative land use decisions.  Ms. Ferguson filed an amended LUPA petition and the 

parties agreed to stay superior court proceedings while the matter was remanded to the 

Planning Commission for review under the municipal code.

       The Planning Commission conducted a public hearing on June 21.  After finding 

the code provision ambiguous, the commission ultimately affirmed the planner's 

interpretation that building height was only measured to the top of the wall plate lines.  

Written findings and conclusions were issued on July 21, 2010.

       Ms. Ferguson filed a second amended LUPA petition on August 9.  The City again 

moved to dismiss, arguing that the building permit was the final land use decision that 

had triggered the 21-day appeal period.  Ms. Ferguson argued that the City was taking an 

inconsistent position in light of its earlier argument that she had not exhausted her 

administrative remedies.  The trial court concluded that Asche v. Bloomquist, 132 Wn. 

point of the structure or building roof." Clerk's Papers at 130.


No. 29703-9-III
Ferguson v. City of Dayton

App. 784, 133 P.3d 475 (2006), governed the situation and ruled that the August 14, 2009 

building permit was the final land use decision.  The court dismissed the action for lack 

of jurisdiction due to untimely filing of the LUPA appeal.

       Ms. Ferguson timely appealed to this court.


       The sole issue presented is what action was the final "land use decision" in this 

action.  Because the building permit was subject to an administrative appeal process, the 

time for filing a LUPA petition began to run with the final ruling in that process.

       LUPA was enacted to ensure timely judicial review of land use decisions.  

RCW 36.70C.010; Vogel v. City of Richland, 161 Wn. App. 770, 777, 255 P.3d 805 

(2011).  It requires that a challenge be filed in superior court within 21 days of the "land 

use decision." RCW 36.70C.040(3).  The petition is barred if not timely filed and served.  

RCW 36.70C.040(2).  A "land use decision" is defined 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]n application for a project permit.

RCW 36.70C.020(2).  

       A "final determination" is one that ends an action between the parties.  Samuel's 

Furniture, Inc. v. Dep't of Ecology, 147 Wn.2d 440, 452, 54 P.3d 1194 (2002), amended 


No. 29703-9-III
Ferguson v. City of Dayton

on recons., 63 P.3d 764 (2003).  A building permit is a land use decision.  Chelan County 

v. Nykreim, 146 Wn.2d 904, 929, 52 P.3d 1 (2002); Asche, 132 Wn. App. at 790.  One of 

the requirements for standing to bring a LUPA action is that "'petitioner has 

exhausted his or her administrative remedies to the extent required by law.'"  

Asche, 132 Wn. App. at 792 (quoting RCW 36.70C.060(2)(d)). 

       The City builds its case around Asche.  There, a couple attempted to challenge the 

building permit issued for an adjoining property, arguing that Kitsap County had 

misinterpreted the building codes and permitted too tall of a building that would block 

their view.  Asche, 132 Wn. App. at 789. The couple did not discover the building permit 

until two months after it had issued; they did not bring their legal challenge until several 

months later.  Id. at 788-89.  The county code did not provide for an administrative 

challenge to a building permit.  Id. at 792.  The court found the action governed by LUPA 

and dismissed it for untimely filing as many months had run from the issuance of the 

building permit to the filing of the superior court action.  Id. at 795-96.  

       Here, the City convinced the superior court that Asche, a factually similar case, 

governed and that Ms. Ferguson's action was untimely because it was brought more than 

21 days after the building permit issued in August 2009.  The trouble with this argument, 

which the City reprises here, is that the City did provide a process for administrative 


No. 29703-9-III
Ferguson v. City of Dayton

review of the permit, while Kitsap County did not provide administrative appeals under 

the code at issue in Asche.  This distinction is critical in light of the LUPA definitions 

noted previously.  Ms. Ferguson lacked standing to initiate court proceedings until the 

administrative appeal process existing in the City had run its course.  RCW 


       Inherent in the concept of appellate or administrative review is the recognition that 

a decision is not yet final.  A review would be useless if it was unable to change the 

determination under review.  The LUPA focus on a "final determination" recognizes this 

concept by defining a "land use decision" in terms of the "determination" by the 

reviewing entity that has the ultimate authority.  RCW 36.70C.020(2).  

       For both of these reasons, we believe the trial court erred in dismissing this action.  

There was no "land use decision" prior to the final determination by the Planning 

Commission, which was the entity with the last word on the permit.  There also was no 

standing to file the LUPA petition prior to the exhaustion of the administrative review 

process.  The August building permit was not a "land use decision" because it was not a 
final determination.3

       3 This conclusion is implicit in Mellish v. Frog Mountain Pet Care, 172 Wn.2d 
208, 257 P.3d 641 (2011).  There the court dealt with whether a reconsideration ruling 
constituted a "final determination" by a hearing examiner.  


No. 29703-9-III
Ferguson v. City of Dayton

       We also note that focus on the original building permit was misplaced because Ms. 

Ferguson did not challenge whether the permit should have issued.  What she challenged 

was the changed interpretation of building height, something that did not occur until 

September 2009, and the changed interpretation was then promptly subjected to 
administrative review.4  

       Because there was an administrative review process created by the City, the 

building permit did not become final once a timely review was initiated.  Only when that 

review concluded was there a "final determination" that meant that a "land use decision"

existed that could be the subject of a LUPA petition.

       The judgment of the superior court is reversed and the matter is remanded for 

further proceedings.

                                                    Korsmo, C.J.



       4 A second reason why a focus on the initial permit instead of the review process is 
misplaced derives from the length of time necessary to conduct a review.  Standing 
requires a party to exhaust administrative review where it exists.  If the triggering device 
was the building permit rather than the review process, a government could immunize 
itself from LUPA petitions simply by making its administrative process last longer than 
21 days.  


No. 29703-9-III
Ferguson v. City of Dayton

Sweeney, J.

Brown, J.