* King Co Dept Of Dev. & Environ. Ser. Bldg, App-cross Res V. Stephan & Sandra Klineburger, Res-cr App

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STEPHEN AND SANDRA
KLINEBURGER,
Respondents,
v.
KING COUNTY DEPARTMENT OF
DEVELOPMENT AND
ENVIRONMENTAL SERVICES
BUILDING AND FIRE SERVICES
DIVISION CODE ENFORCEMENT
SECTION,
Appellant,
DEPARTMENT OF ECOLOGY,
Intervenor.
No. 71325-6-1
DIVISION ONE
PUBLISHED OPINION
FILED: August 3, 2015
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Leach, 	J. 	— This 	appeal 	involves 	the 	scope 	of the 	superior court's
appellate review under the Land Use Petition Act (LUPA), chapter 36.70C RCW.
King County (County) and the Department of Ecology (Ecology) appeal the trial
court's order in this LUPA action. 	Stephen and Sandra Klineburger appealed a
code 	enforcement order. 	The 	county 	hearing 	examiner affirmed 	the 	order,
concluding 	that the 	County did 	not 	have 	the 	authority to 	disturb 	Ecology's
determination that the Klineburgers' property did not qualify for an exception to
state regulations prohibiting construction in a designated floodway. 	The superior
court 	affirmed 	the 	examiner's 	conclusion 	about 	the 	County's 	authority 	but
He
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NO. 71325-6-1/2
decided 	that 	it could 	review 	Ecology's 	determination. 	Reversing 	Ecology's
decision, the court directed the County on remand to process the Klineburgers'
application consistent with its decision. 	In a 	cross appeal, 	the 	Klineburgers
contend that the trial court did not go far enough—that it should have ruled that
the floodway regulations do not apply to their property. 	We affirm the examiner's
decision. 	Because the superior court's review of Ecology's decision exceeded its
statutory authority 	under 	LUPA and 	the 	Klineburgers failed 	to 	exhaust their
administrative remedies, we reverse the trial court's decision reviewing Ecology's
decision, and we deny the Klineburgers' cross appeal. 	We affirm in part, reverse
in part, and remand for further proceedings consistent with this opinion.
FACTS
Stephen and Sandra Klineburger own property located about 800 feet
south of the middle fork of the Snoqualmie River near North Bend, Washington.
It lies within the federally mapped floodway: 	the area of the river floodplain
where flood depths and velocities may reach hazardous levels. 	The site also lies
in the 	river's 	county-designated channel migration 	zone, the area where the
river's channel can be reasonably predicted to migrate over time, 	creating an
erosion hazard. 	The county regulations divide a channel migration zone into
moderate hazard areas and severe hazard areas. 	A road, 428th Avenue SE,
passes 	between the 	Klineburgers' 	property and 	the 	river. 	The 	County 	has
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NO. 71325-6-1/3
designated properties between the road and the river severe hazard areas and
designated the Klineburgers' property a moderate hazard area.
The record does not provide a clear history of the residential development
on 	the 	Klineburgers' 	property. 	Sometime 	between 	2005 	and 	2007, 	a 	fire
destroyed a home on the property. 	The Klineburgers purchased the property in
2011. 	They contend that the mobile home at issue was on the property then.
In 	October 	2011, 	the 	King 	County 	Department 	of 	Permitting 	and
Environmental Review (DPER)1 investigated a complaint about the mobile home,
accumulated debris, and inoperable vehicles on the Klineburgers' property. 	On
October 24, 2011, the code enforcement officer posted a stop work order on the
mobile home, directing the Klineburgers to obtain the necessary permits and
inspections.
On January 3, 2012, the Klineburgers attended a "pre-application meeting"
with DPER about the required permits. 	DPER informed them that they could not
build in the floodway unless they could establish that their site qualified as an
exception to the floodplain management regulations. 	An exception allows the
repair or replacement, under certain circumstances, of a "substantially damaged"
dwelling.2
1 DPER was formerly known as DDES (the Department of Development
and Environmental Services).
2 WAC 173-158-076.
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 71325-6-1/4
On 	January 9, 2012, 	DPER issued the Klineburgers a 	notice of code
violation and order of abatement. 	The notice told them of their right to appeal
and the procedures to do so. 	The Klineburgers timely appealed. 	They also
applied for a 	variance for 	nonconforming 	use 	under the 	King 	County Code
(KCC), which the County denied.3 	The County told them that they had to submit
a new building permit application, "including review of the floodplain/floodway,
critical areas designation and Health Dept. approval."
The 	Klineburgers 	hired 	a 	civil engineer, William Taylor, 	to 	review 	the
floodway issues affecting their property. 	Taylor's July 27, 2012, report evaluated
the site according to the criteria of KCC 21A.24.260.G. 	This regulation requires
that the base flood depth not exceed three feet, that the base flood velocity not
exceed three feet per second, that there be no evidence of flood-related erosion,
and 	that 	a 	flood 	warning 	system 	or 	emergency 	plan 	be 	in place. 	Taylor
submitted a report to Ecology.
The report stated that the base flood depth at the building location was
"slightly 	less than 	3 feet with the exception 	of the 	southeast corner of the
building" and that Taylor proposed to "adjust the grade slightly in that area to
achieve 	compliance with the 	Base 	Flood 	Depth 	requirements 	of the 	code."
Taylor found that the base flood velocity was 2.2 feet per second—within code
3 The Klineburgers applied for a variance for nonconforming use within the
shoreline jurisdiction under KCC 21A.32.045.
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NO. 71325-6-1/5
requirements. 	He found no evidence of flood-related erosion. 	He noted that the
"entire site" 	is located 	in the 	moderate channel 	migration 	hazard 	area of a
federally mapped floodway. 	But his inspection 	of the 	property disclosed "no
signs 	of historic erosion," and 	"reports from long-term residents verify this."
Taylor's report did not address the warning system requirement.
On October 22, 2012, Ecology floodplain specialist David Radabaugh sent
a 	letter 	to 	Steve 	Bleifuhs, 	manager 	of 	the 	County's 	River 	and 	Floodplain
Management Section. 	Radabaugh explained to Bleifuhs why, after reviewing
Taylor's report, Ecology had determined that the Klineburger site did not meet
most of the required criteria for rebuilding in a floodway. 	Radabaugh concluded,
"Ecology 	does 	not 	recommend 	the 	approval 	of the 	Klineburger 	residence
placement at 9609 - 428th Avenue SE." 	Radabaugh invited Bleifuhs to contact
him or the engineer who reviewed the report with any questions about Ecology's
"decision." 	Radabaugh sent a copy of this letter to Stephen Klineburger.
A week 	later, Taylor sent Bleifuhs a 	response to 	Radabaugh's 	letter.
Taylor disputed 	Ecology's conclusions 	about 	flood 	depth 	and 	erosion 	and
attached 	"reference 	pages from 	King 	County's website 	regarding 	flood alert
programs."
On 	December 18, 	2012, 	Radabaugh 	responded to Taylor's letter in a
second letter to Bleifuhs, in which he rejected most of Taylor's explanations and
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NO. 71325-6-1/6
arguments. 	Radabaugh reminded Bleifuhs that before the County may issue a
permit for a 	replacement residence in the floodway, 	Ecology must expressly
recommend approval, repeating that Ecology "[did] not recommend" approval of
the 	Klineburgers' 	replacement 	construction. 	In 	January 	2013, 	Bleifuhs
communicated Ecology's conclusion to DPER's permitting department, advising
that 	the 	Klineburgers' 	site 	"should 	not 	be 	approved 	for 	reconstruction 	or
replacement of a residential structure."
On 	March 	20, 	2013, 	the 	King 	County 	hearing 	examiner 	heard 	the
Klineburgers' code enforcement appeal. 	In the decision denying the appeal, the
hearing examiner stated that he "ha[d] no independent authority to review, modify
or vacate the findings of the Department of Ecology with respect to floodway
issues." The examiner noted that in the area of floodway management,
[a]ll the essential regulatory determinations are made by the State
Department of 	Ecology. 	The 	role 	of the 	County 	is 	limited 	to
concurring with an affirmative recommendation from Ecology. . . .
[I]f the Department of Ecology has concluded that the proposed
floodway 	development should 	be denied, 	the 	County lacks any
authority to 	overturn 	such 	determination.. .. Once 	Ecology 	had
denied 	the 	Klineburger 	request for 	a 	floodway 	exemption, 	that
determination was conclusive and binding on the County.
The Klineburgers appealed to superior court under LUPA, asserting, "King
County 	is the final 	authority on 	the 	permit and 	should 	not 	abdicate to 	the
Washington State Department of Ecology." 	They asked the court to order King
County to issue a permit to place a home on the property on the basis that either
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NO. 71325-6-1/7
the lot is not in a floodway and "none of these regulations matter" or that the
Klineburgers have met the criteria for an exception allowing development in the
floodway.
The trial court agreed that "the County's decision was constrained by the
law 	applicable 	to 	such 	decisions" 	but decided 	that the 	superior court "has
jurisdiction under the Constitution to review the decision of the Washington State
Department of Ecology adopted by King County as their own to determine if the
Department of Ecology/King County correctly interpreted the law and applied [it]
to the facts in the case." 	The court stated that it "is left with a definite and firm
conviction a mistake has been made." 	The court adopted most of the findings of
fact 	in the 	Klineburgers' 	proposed order, 	as well as some findings from the
hearing examiner's decision, concluding, 	"The Court gives weight to the King
County Hearing Examiner's [findings and conclusions] that Klineburger proved
that 428 Ave SE had a localized diking effect."
The court struck language in the Klineburgers' proposed order directing
the County to process the Klineburgers' permits "as if the lot was not in the
floodway, [and] therefore the floodway regulations do not apply." 	However, the
court adopted the Klineburgers' alternative language reversing and remanding to
King 	County: 	"[T]he County 	is ordered 	to allow the 	Petitioner to apply for
whatever permits are needed to legalize his modular home and the permit is to
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NO. 71325-6-1/8
be 	processed 	with 	the 	requirement 	the 	four 	criteria 	in 	WAC 	173-158-
7076(1 )(a)(b) [sic] and KCC 21A.24.26(G)(1)(a)(b) [sic] have been met." 	The
court 	added, 	"The 	Court 	does 	not 	make 	any 	decisions 	with 	regard 	to 	the
remainder of the permit process at this time. 	That decision is up to the County in
the first instance."
The County appeals. 	Intervenor Ecology also appeals. 	The Klineburgers
cross appeal, contending that they successfully demonstrated that the floodway
regulations do not apply because their property is not in the floodway.
STANDARD OF REVIEW
LUPA governs judicial review of land use decisions.4 	When reviewing an
administrative land use decision under LUPA, an appellate court stands in the
shoes of the superior court and reviews the administrative record.5 	A party
seeking the reversal of a land use decision has the burden to establish one of six
statutory standards under LUPA.6 	This case implicates the following grounds for
relief:
4 Lauer v. Pierce County, 173 Wn.2d 242, 252, 267 P.3d 988 (2011).
5 RCW 36.70C.130; King County Dep't of Dev. & Envtl. 	Servs. v. King
County, 177 Wn.2d 636, 643, 305 P.3d 240 (2013) (Kino County DDES).
6 RCW 36.70C.130(1). These grounds are
(a) The body or officer that made the land use decision
engaged in unlawful procedure or failed to follow a prescribed
process, unless the error was harmless;
(b) The land use decision is an erroneous interpretation of
the 	law, 	after 	allowing 	for 	such 	deference 	as 	is 	due 	the
construction of a law by a local jurisdiction with expertise;
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NO. 71325-6-1/9
(b) The land use decision is an erroneous interpretation of
the law, after allowing for such deference as is due the construction
of a law by a local jurisdiction with expertise;
(d) The land use decision is a clearly erroneous application
of the law to the facts.[7]
This court 	reviews alleged errors of law de 	novo.8 	"[A] 	decision 	is clearly
erroneous if, 'although there is evidence to support it, the reviewing court on the
record 	is left with the definite 	and firm conviction that a 	mistake 	has 	been
committed.'"9
ANALYSIS
Ecology, Kino County, and Floodway Management
Our state 	legislature 	has 	declared the 	alleviation 	of recurring 	flood
damages to public and private property a matter of public concern and assumed
"full regulatory control" over waters flowing or lying within the state, subject only
(c) The land use decision is not supported by evidence that
is substantial when viewed in light of the whole record before the
court;
(d) The land use decision is a clearly erroneous application
of the law to the facts;
(e) The 	land 	use 	decision 	is outside 	the 	authority 	or
jurisdiction of the body or officer making the decision; or
(f) The land use decision violates the constitutional rights of
the party seeking relief.
7RCW36.70C.130(1).
8 Kino County DDES, 177 Wn.2d at 643.
9 Lauer, 	173 	Wn.2d 	at 	253 	(quoting 	Phoenix 	Dev.. 	Inc. 	v. 	City 	of
Woodinville. 171 Wn.2d 820, 829, 256 P.3d 1150 (2011)).
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NO. 71325-6-1/10
to federal control, to the extent necessary to manage floodplains.10 	Ecology has
the authority
to examine, approve or reject designs and plans for any structure or
works, public or private, to be erected or built or to be reconstructed
or modified upon the banks or in or over the channel or over and
across the floodway of any stream or body ofwater in this stated1]
Ecology reviews and approves local floodplain management ordinances12
and provides technical and enforcement assistance to local governments when
requested.13 	Ecology also helps local governments identify the location of the
100-year floodplain, based on the areas that the federal emergency management
agency designates as special flood hazard areas.14 And Ecology establishes the
minimum state requirements for floodplain 	management that meet or exceed
federal requirements.15
Washington 	law 	generally 	prohibits 	construction 	or reconstruction 	of
residential structures within designated floodways.16 	One exception may allow
the 	repair or replacement of "substantially damaged 	residential 	structures."17
After assessing the risk of harm, Ecology may recommend replacement or repair
10 RCW 86.16.010.
11 RCW 86.16.025.
12 RCW 86.16.031(1).
13 RCW 86.16.031(2), (3), (5).
14 RCW 86.16.031(7), .051.
15 RCW 86.16.031(6), (8).
16 RCW 86.16.041 (2)(a).
17 RCW 86.16.041(4); WAC 173-158-076(1).
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NO. 71325-6-1/11
of a dwelling 	if the site meets 	certain criteria.18 	At the request of a 	local
government, Ecology will prepare a report of findings and recommendations for
local government concurrence.19 	But without Ecology's permission, the local
government may not allow 	repair or replacement of a damaged 	residential
structure located within the floodway.20
RCW 86.16.110 	allows 	any 	person 	"feeling aggrieved 	at 	any 	order,
decision, or determination of the department or director [of Ecology] pursuant to
this chapter [RCW 86.16], affecting his or her interest," to seek review under
RCW 43.21 B.310. 	Chapter 43.21 B RCW establishes 	the 	Pollution Control
Hearings Board (PCHB or Board) and grants it authority to hear and decide
appeals 	from 	Ecology 	decisions, 	including 	those 	involving 	floodplain
management.21 	RCW 43.21 B describes procedures for filing an appeal to the
PCHB22 and provides for judicial review of a final 	PCHB decision under the
Washington Administrative Procedure Act (WAPA), chapter 34.05 RCW.23
LUPA 	provides "the exclusive means 	of judicial 	review 	of land 	use
decisions," 	which 	the 	statute 	defines 	as 	"a 	final determination 	by 	a 	local
18 RCW 86.16.041(4); WAC 173-158-076(1); KCC 21A.24.260.G.1.a-d.
19 WAC 173-158-076(1).
20 WAC 173-158-076(1); KCC 21A.24.260.G.2.
21 RCW 43.21 B. 110(1)(b) (PCHB has jurisdiction over appeals of orders
issued under RCW 86.16.020)).
22 RCW 43.21 B.230.
23RCW43.21B.180.
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NO. 71325-6-1/12
jurisdiction's body or officer with 	the highest level 	of authority to make the
determination."24 	Under the KCC, the hearing examiner makes the final decision
on 	behalf of the 	County, 	a 	"local 	jurisdiction" 	under 	LUPA,25 	about 	code
enforcement 	appeals.26 	An 	aggrieved 	party 	may 	appeal 	the 	examiner's
determination to superior court, which reviews the decision under LUPA.27
The examiner's order denying the Klineburgers' code enforcement appeal
described the County's limited authority in the floodway management scheme:
The nub 	of the matter is that Mr. 	Klineburger needs a 	building
permit for placement of a mobile home on his property. 	While he
appears to be more than willing to get one, the County won't issue
a permit because the State has determined that such siting would
not meet its requirements for development within the floodway.
Attempting 	to 	rectify 	such 	an 	outcome 	is 	well 	outside 	the
jurisdictional boundaries of this code enforcement appeal. . . . The
appeal must be denied.
In their land use 	petition, the 	Klineburgers asserted that "King County
abdicated 	its responsibility" to exercise 	its "independent authority to 	review,
modify, 	and 	vacate 	the findings 	of Department of Ecology with 	respect to
floodway issues." 	The superior court affirmed the examiner's decision to the
extent of noting that it "was constrained by the law applicable to such decisions."
24 RCW 36.70C.030(1), .020(2).
25 RCW 36.70C.020(3). 	The statute's definition "does not include state
agencies, such as Ecology." 	Samuel's Furniture, Inc. v. Dep't of Ecology, 147
Wn.2d 440, 453 n.12, 54 P.3d 1194 (2002).
26 	KCC 20.24.080.A.2; 	KCC 20.20.020.E 	(determinations 	under 	KCC
21A.24 are Type 2 land use decisions).
27RCW36.70C.130(1).
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NO. 71325-6-1/13
We agree with the County and 	the superior court. 	The 	unambiguous
language of the state regulation governing the replacement of dwellings located
in 	a 	designated 	floodway 	states, 	"Without 	a 	recommendation 	from 	the
department for the repair or replacement of a substantially damaged residential
structure 	located 	in 	the 	regulatory 	floodway, 	no 	repair 	or 	replacement 	is
allowed."28 	Under LUPA, the examiner's order denying the appeal was the only
"land 	use decision" under review.29 	The superior court had to decide if the
examiner erred using the standards in RCW 36.70C. 130(1). 	Here, the court
correctly concluded that the examiner did not err, given that it was "constrained
by the law applicable to such decisions" and could not independently modify or
vacate Ecology's determination.
The Superior Court's Authority under LUPA
The County argues next that because the Klineburgers could not appeal
Ecology's decision under LUPA, the trial court violated the doctrines of primary
jurisdiction and exhaustion by reviewing and reversing Ecology's decision. The
Klineburgers 	counter 	that 	because 	the 	County 	alleges 	procedural, 	not
jurisdictional, errors, RAP 2.5 bars the County from raising these issues for the
first time on appeal.
28 WAC 173-158-076(1).
29 RCW 36.70C.020(2).
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NO. 71325-6-1/14
We reject the Klineburgers' RAP 2.5 argument. 	First, under RAP 2.5, we
"may refuse" to review an issue not raised below but are not required to do so.
Second, the parties disputed the scope of the County's authority before the trial
court. 	Therefore, the County may properly raise this issue on appeal. 	Contrary
to the Klineburgers' position, this issue implicates the trial court's jurisdiction,
which we may raise on our own under RAP 2.5(a)(1). 	Third, the Klineburgers did
not request or brief the relief granted by the trial court. 	This circumstance makes
declining review of this issue inappropriate and unfair.
We conclude that the trial 	court erred when 	it reviewed and 	reversed
Ecology's decision. 	First, Ecology's recommendation was a determination by a
state agency, not a local jurisdiction. 	Therefore, it was not a "land use decision"
reviewable under LUPA.30
Second, although Ecology was a necessary party, the Klineburgers did not
join the agency to their LUPA action. 	A party is necessary if that party's absence
"'would prevent the trial court from affording complete relief to existing parties to
the action or if the party's absence would either impair that party's interest or
subject any existing party to inconsistent or multiple liability.'"31 	Here, the trial
30 	RCW 36.70C.020(3) 	("local 	jurisdiction" 	means 	a 	county, 	city, 	or
incorporated town).
31 Woodfield Neigh. Homeowner's Ass'n v. Graziano, 154 Wn. App. 1, 4,
225 P.3d 246 (2009) (quoting Coastal Bldg. Corp. v. City of Seattle, 65 Wn. App.
1, 5, 828 P.2d 7 (1992)); CR 19(a).
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NO. 71325-6-1/15
court could not review the merits of Ecology's determination without affecting
Ecology's 	rights 	as the state 	agency 	tasked 	with 	floodplain 	management.
Therefore, Ecology was a necessary party, and the trial court could not justly
decide a dispute to which the agency had not been joined.32
Third, by reviewing the merits of Ecology's decision, the trial court allowed
the 	Klineburgers 	to 	avoid 	the 	administrative 	exhaustion 	requirements 	the
legislature established. 	Because a "land use decision" under LUPA must be a
final determination by a local government, "a LUPA petitioner must necessarily
exhaust all available administrative remedies" 	before the 	superior court may
exercise its appellate jurisdiction.33 Exhaustion furthers 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."[34]
32 See Woodfield, 154 Wn. App. at 4-5 (county was necessary party where
court's ruling affected county restrictions on development).
33 West v. Stahlev, 155 Wn. App. 691, 697, 229 P.3d 943 (2010); RCW
36.70C.060(2)(d); Durland v. San Juan County, 182 Wn.2d. 55, 66 n.6, 340 P.3d
191 (2014).
34 IGI Res.. Inc. v. City of Pasco, 180 Wn. App. 638, 642, 325 P.3d 275
(2014) (internal quotation marks omitted) (quoting King Countv v. Wash. State
Boundary Review Bd., 122 Wn.2d 648, 669, 860 P.2d 1024 (1993)).
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NO. 71325-6-1/16
"Exhausting 	administrative 	remedies 	is 	always 	a 	condition 	precedent 	to
challenging a 'land use decision' that is subject to review under LUPA."35
Here, the Klineburgers exhausted their administrative remedies for the
hearing examiner's decision 	and 	properly appealed that determination 	under
LUPA. 	But they did not exhaust administrative remedies for Ecology's decision
because they never appealed that determination to the PCHB. 	Had they done
so, they could have sought judicial review of an unfavorable PCHB decision—but
under WAPA, not LUPA.
The 	Klineburgers 	argue 	that 	Ecology's 	October 	22, 	2012, 	letter was
merely an "advisory recommendation," not an appealable order, and therefore
they could not have sought relief from the PCHB. 	They cite RCW 43.21 B.310(4),
which states that an appealable decision "shall be identified as such and shall
contain a conspicuous notice to the recipient" of the procedures for filing a PCHB
appeal. 	They 	assert 	that 	"Ecology's 	letter 	is 	completely 	devoid 	of 	any
identification of an appealable decision, nor does it contain a conspicuous notice
to the Klineburgers on how it may be appealed."
To determine appealability of Ecology decisions, the PCHB has weighed,
among 	other factors, 	an 	absence 	of such 	appeal 	language 	in 	an 	Ecology
35 West, 155Wn. App. at 697.
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NO. 71325-6-1/17
communication.36 	But in a recent order,37 the Board clarified that the fact that an
e-mailed denial of an applicant's request did not contain RCW 43.21 B.310(4)'s
appeal language "is not dispositive of whether the agency action at issue is
appealable to the Board 	[T]he failure to include this language does not divest
the Board of its jurisdiction or impact whether the decision may be appealed."
Moreover, in PCHB cases where the Board has found that an Ecology
determination was not appealable, the underlying facts are distinguishable from
Ecology's letter here. 	For example, in Steensma v. Department of Ecology.38 the
Board noted that beyond an absence of appeal language, the letter at issue "[did]
not constitute 	an Ecology decision 	on 	a water right application" 	but merely
"offer[ed] Ecology's views on the applicant's proposal." 	The Board observed that
Ecology did 	not send 	the 	letter directly to 	the 	applicant.39 	And 	the 	Board
concluded that because of specific statutory limitations on Ecology's authority,
"Ecology cannot render any binding decision" related to the disputed permits; in
sum, "Ecology ha[d] not made a permitting decision" appealable to the PCHB.40
36 steensma v. Dep't of Ecology, 	No. 	11-053 (Wash. Pollution Control
Hr'gs Bd. Sept. 8, 2011); Svlvia Ridge Developers. LLC v. Dep't of Ecology, No.
07-139 (Wash. Pollution Control Hr'gs Bd. Mar. 14, 2008).
37 Haoman v. Dep't of Ecology. No. 14-016c, at 14 n.4 (Wash. Pollution
Control Hr'gs Bd. Dec. 3, 2014).
38 No. 11-053, at 6-7 (Wash. Pollution Control Hr'gs Bd. Sept. 8, 2011).
39 Steensma, No. 11-053, at 7.
40 Steensma, No. 11-053, at 8. The Board did describe other avenues by
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NO. 71325-6-1/18
Similarly, in Svlvia Ridge Developers. LLC v. Department of Ecology.41 the
Board concluded that a "non-compliance notification" an Ecology water quality
inspector sent to the permit applicants was not an appealable order. 	The Board
observed that the water pollution control act42 expressly provides that such a
notification does not constitute "'an order or directive under RCW 43.21 B.310,'"
and the inspector did not have the authority under the statute to issue an order.43
Here, 	by 	contrast, 	Radabaugh 	had 	the authority 	to make 	Ecology's
determination, which the County had to follow. 	No statutory provision limited
Ecology's authority to make the decision or specified that it was not appealable
under RCW 43.21B.310. 	Radabaugh referred to Ecology's determination as the
agency's "decision." 	He sent the letter to Stephen Klineburger, who does not
dispute he received it. 	Contrary to the Klineburgers' assertion that they "were left
only one course: 	to challenge Ecology's letter through the Hearing Examiner,"
RCW 86.16.110 provided their route to relief from Ecology's "order, decision, or
determination," an appeal to the PCHB.
Under both LUPA and WAPA, the superior court has jurisdiction to review
administrative decisions. But we distinguish the court's subject matter jurisdiction
from its statutory authority to exercise that jurisdiction by ruling in a particular
41 No. 07-139, at 5-6 (Wash. Pollution Control Hr'gs Bd. Mar. 14, 2008).
42 Chapter 90.48 RCW.
43 Svlvia Ridoe Developers. No. 07-139, at 5 (quoting RCW 90.48.120(1)).
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NO. 71325-6-1/19
matter.44 	Here, the court had the authority under WAPA to review an Ecology
determination following a PCHB decision, with a more complete factual record to
do so. 	But by reaching the merits of Ecology's decision before the Klineburgers
had exhausted their administrative remedies, the court exercised its jurisdiction
prematurely and exceeded its authority under LUPA.
Our Supreme Court has recognized limited exceptions to the exhaustion
requirement where, for example, appeal would be futile.45 	However, courts apply
the futility exception narrowly, and "[i]n no circumstance would the exception
permit appeal under some other distinct, inapplicable statutory review scheme."46
In Stafne v. Snohomish County.47 a landowner challenged a city's decision about
a comprehensive plan amendment by filing a petition under LUPA. 	Our Supreme
Court held that because a comprehensive plan amendment is not a "land use
decision," Stafne could 	not seek 	relief directly from 	superior court through a
LUPA petition.48 	Rather, under the Growth Management Act (GMA), chapter
36.70A RCW, he had to appeal first to the growth management hearings board.49
44 see Marlev v. Deo't of Labor & Indus.. 125 Wn.2d 533, 539-41, 886
P.2d 189(1994).
« stafne v. Snohomish County. 174 Wn.2d 24, 34, 271 P.3d 868 (2012).
46 Stafne, 174 Wn.2d at 35; see also Coffev v. Citv of Walla Walla. 145
Wn. App. 435, 442, 	187 P.3d 272 (2008) (superior court could not consider
comprehensive plan amendment under land use petition).
47 174 Wn.2d 24, 28-29, 271 P.3d 868 (2012).
48 Stafne, 174 Wn.2d at 33-34.
49 Stafne, 174 Wn.2d at 34.
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NO. 71325-6-1/20
Even the circumstance of unlikely success before that board did not give him the
right to challenge the city's decision directly via LUPA: 	"In other words, even if
the chances for successful review before the growth board are slim, that cannot
change a non-land-use decision into a land use decision under LUPA."50
Like 	Stafne. 	this 	case 	involves 	two 	"separate 	and 	distinct 	statutory
schemes, 	with 	each containing expressly different review procedures."51 	To
challenge Ecology's decision relating to floodway management, the Klineburgers
first had to seek relief from the PCHB. 	The superior court interpreted Ecology's
decision as "adopted by King County as their own" and reasoned that it could
"determine if the Department of Ecology/King County correctly interpreted the
law." 	But this interpretation "cannot change a non-land-use decision into a land
use decision under LUPA."52 	The trial court erred when it reviewed and reversed
Ecology's decision.
Cross Appeal: 	Merits of Ecology's Determination
In a cross appeal, the Klineburgers allege that the trial court erred by
declining 	to order the County to process the Klineburgers' 	permits on their
proposed alternative basis: 	"as if the lot was not in the floodway, therefore the
floodway regulations do not apply." 	But because the superior court did not have
50 Stafne, 174 Wn.2d at 34.
51 Stafne, 174 Wn.2d at 31.
52 Stafne, 174 Wn.2d at 34.
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NO. 71325-6-1/21
authority under LUPA to review Ecology's determination on any basis, it did not
err by declining to rule as the Klineburgers proposed. 	For the same reason, we
decline 	to 	address 	the 	merits 	of 	Ecology's 	decision, 	and 	we 	deny 	the
Klineburgers' cross appeal.
CONCLUSION
We affirm the order of the King County hearing examiner. 	We reverse the
portion of the superior court's order setting aside Ecology's determination and
holding that the Klineburgers' property meets the criteria for rebuilding in the
floodway. 	We deny the Klineburgers' 	cross appeal and remand for further
proceedings consistent with this opinion.
WE CONCUR:
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