Cave Properties v. City Of Bainbridge Island
199 Wash. App. 651
Wash. Ct. App.2017Background
- The Tawreseys installed an eight-inch water main required for their development on Bainbridge Island and later sought a city-approved latecomer reimbursement agreement to recoup construction costs from later connecting property owners.
- The City prepared a reimbursement area and per-front-foot charge (~$287/ft); Cave Properties owned a parcel with 330 feet frontage, yielding an assessed potential charge of ~$94,920.52 if Cave connected to that main.
- The BIMC (chapter 13.32) and state statute (chapter 35.91 RCW) authorize latecomer reimbursement agreements, require notice to affected owners, and give the city council final approval authority after a hearing.
- Cave requested a hearing, objected to the charges and methodology, and the city council voted to approve the agreement; the public works director signed it.
- Cave appealed to superior court via a combined LUPA petition and petition for writ of review; the superior court dismissed both for lack of jurisdiction. Cave appealed the LUPA dismissal (and assigned error to the writ dismissal but gave no argument on that point).
Issues
| Issue | Plaintiff's Argument (Cave) | Defendant's Argument (City/Tawreseys) | Held |
|---|---|---|---|
| Whether council approval of the latecomer reimbursement agreement is a "land use decision" under RCW 36.70C.020(2)(a) (application for governmental approval required before property may be improved/used) | Approval was a governmental approval tied to utility/permit process and thus a land use decision under (2)(a) | The reimbursement agreement was not required before development; it only affects recoupment, so (2)(a) does not apply | Not a land use decision under (2)(a) — (2)(a) requires the approval be a precondition to improvement/use, which was not the case here |
| Whether council approval is a "land use decision" under RCW 36.70C.020(2)(b) (interpretative/declaratory decision about application of ordinances to a specific property) | The agreement imposes a reimbursement charge that regulates Cave's future development/use of its specific parcel, so it is an interpretative/declaratory land use decision under (2)(b) | The agreement does not control Cave because Cave could avoid the fee by not connecting or using another water source; thus (2)(b) should not apply | Held to be a land use decision under (2)(b): council’s approval declared that Cave’s parcel would be subject to the charge if it connected, thus regulating development/use |
| Whether the superior court had LUPA jurisdiction to hear Cave’s petition | LUPA applies because council approval is a land use decision (at least under (2)(b)) | City argued LUPA did not apply; also argued (procedurally) that Cave failed to invoke (2)(b) below | Court of Appeals held superior court had LUPA jurisdiction and reversed dismissal of the LUPA petition |
| Whether the writ of review dismissal should be reversed | (Not argued on appeal) | City argued writ inapplicable because decision was not quasi-judicial | Court declined to consider writ issue due to lack of appellate briefing; affirmed superior court dismissal of writ |
Key Cases Cited
- Durland v. San Juan County, 182 Wn.2d 55 (2015) (LUPA provides exclusive appellate review of local land use decisions unless statute says otherwise)
- Conom v. Snohomish County, 155 Wn.2d 154 (2005) (superior court must dismiss LUPA appeal if challenged action is not a "land use decision")
- Jametsky v. Olsen, 179 Wn.2d 756 (2014) (statutory interpretation reviewed de novo)
- Gray v. Suttell & Assocs., 181 Wn.2d 329 (2014) (plain statutory language governs legislative intent)
- Nissen v. Pierce County, 183 Wn.2d 863 (2015) (use dictionary definitions when statute doesn't define a term)
- James v. Kitsap County, 154 Wn.2d 574 (2005) (imposition of fees or exactions as a condition of permitting can constitute a land use decision)
- Coballes v. Spokane County, 167 Wn. App. 857 (2012) (contrast between LUPA timing and writ procedures)
- Blue Diamond Group, Inc. v. KB Seattle 1, Inc., 163 Wn. App. 449 (2011) (legal reliance on statutory definitions)
- Shelcon Constr. Grp., LLC v. Haymond, 187 Wn. App. 878 (2015) (appellate courts normally do not consider assignments of error lacking argument)