Vern Sims Family Ltd. Partnership, Appellant V. City Of Burlington, Respondent

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
VERN F. SIMS FAMILY LIMITED
PARTNERSHIP I, GILBERT FAMILY
PROPERTIES, LLC, and LDV
BURLINGTON PROPERTIES, LLC,
Appellant,
CITY OF BURLINGTON, a municipal
corporation in Washington, and COSTCO
WHOLESALE CORPORATION, a
Washington Corporation,
Respondents.
No. 73608-6-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: July 5, 2016
Appelwick, J. — Establishment of an assessment reimbursement area
pursuant to chapter 35.72 RCW is a land use decision. 	Sims's challenge to the
assessment reimbursement area provisions was untimely under the Land Use
Petition Act's1 	21 day statute of limitations. 	Dismissal of those claims with
prejudicewas proper under LUPA. Sims's remaining claims are not ripefor review.
We affirm.
Chapter 36.70C RCW

No. 73608-6-1/2
BACKGROUND
This case involves the application of chapter 35.72 RCW, which establishes
the authority and procedures for reimbursement contracts. 	These are contracts
entered into between a city and property owners who are developing their property.
See RCW 35.72.010. 	The contracts enable developing property owners to be
reimbursed for any excess benefit created by street improvements they make
during the course of developing their property. 	]cL 	Other property owners who
subsequently develop their property and benefit from the improvements pay a
reimbursement share. ]d_, Specifically,
(1). . . [T]he contract may provide for the partial reimbursement to
the owner or the owner's assigns for a period not to exceed fifteen
years of a portion of the costs of the project by other property owners
who:
(a) 	Are 	determined 	to 	be 	within 	the 	assessment
reimbursement area pursuant to RCW 35.72.040;
(b) Are determined to have a reimbursement share based
upon a benefit to the property owner pursuant to RCW 35.72.030;
(c) Did not contribute to the original cost of the street project;
and
(d) Subsequently develop their property within the period of
time that the contract is effective and at the time of development were
not required to 	install similar street projects because they were
already provided for by the contract.
Street projects subject to reimbursement may include design,
grading, 	paving, 	installation 	of 	curbs, 	gutters, 	storm 	drainage,
sidewalks, 	street 	lighting, 	traffic 	controls, 	and 	other 	similar
improvements, as required by the street standards of the city, town,
or county.

No. 73608-6-1/3
Id. The reimbursement is a pro rata share of construction and reimbursement of
contract administration costs of the street project. 	RCW 35.72.030. 	A city
determines the reimbursement share by using a method of cost apportionment
which is based on the benefit to the property owner from such project. 	RCW
35.72.030. 	The procedures for reimbursement contracts are governed by RCW
35.72.040:
The procedures for assessment reimbursement contracts shall be
governed by the following:
(1) 	An 	assessment 	reimbursement 	area 	shall 	be
formulated by the city, town, or county based upon a determination
by the 	city, town, 	or 	county 	of which 	parcels 	adjacent to 	the
improvements 	would 	require 	similar 	street 	improvements 	upon
development.
(2) 	The preliminary determination of area boundaries and
assessments, along with a description of the property owners' rights
and options, shall 	be forwarded 	by certified mail to the property
owners of record within the proposed assessment area. 	If any
property owner requests a hearing in writing within twenty days of
the mailing of the preliminary determination, a hearing shall be held
before the legislative body, 	notice of which shall 	be given to all
affected 	property 	owners. 	The 	legislative 	body's 	ruling 	is
determinative and final.
(3) 	The 	contract 	must 	be 	recorded 	in the 	appropriate
county auditor's office within thirty days of the final execution of the
agreement.
(4) 	If the contract is so filed, it shall be binding on owners
of record within the assessment area who are not a party to the
contract.
This case also requires us to make a determination as to whether certain
actions taken by a city constitute land use decisions for the purposes of the Land
Use Petition Act (LUPA). 	LUPA governs the process for judicial review of land use

No. 73608-6-1/4
decisions made by local jurisdictions. 	RCW 36.70C.010. 	Under LUPA, a "land
use decision" is defined as a
[FJinal 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:
(b) An interpretative or declaratory decision 	regarding the
application to a specific property of zoning or other ordinances or
rules 	regulating 	the 	improvement, 	development, 	modification,
maintenance, or use of real property; and
(c) The enforcement by a 	local jurisdiction of ordinances
regulating 	the 	improvement, 	development, 	modification,
maintenance, or use of real property.
RCW 36.70C.020(2). Under LUPA, a petition challenging a land use decision must
be filed within 21 days of the land use decision, or the petition is barred as untimely
and the court has no jurisdiction. RCW 36.70C.040(3); Kniahtv. Citvof Yelm, 173
Wn.2d 325, 337, 267 P.3d 973 (2011).
FACTS
This dispute 	began when 	Costco Wholesale 	Corporation 	proposed 	to
construct a new store in the City of Burlington (City) near Interstate 5 (I-5). 	The
City reviewed Costco's proposal, including a traffic impact study, and found that
the 	proposal 	did 	not 	have 	a 	probable 	significant 	adverse 	impact 	on 	the
environment. 	Consequently, 	on 	November 	24, 	1999, 	it issued 	a 	Mitigated
Determination of Nonsignificance (MDNS), which included conditions to mitigate
any adverse impacts of the project. 	One condition, condition 14, mandated that
Costco work with the City to complete certain traffic mitigation measures (mostly

No. 73608-6-1/5
improvements to 1-5 and George Hopper Road). The MDNS noted, "The applicant
may elect to pay for the required mitigation up front and the City may be able to
initiate a pay back agreement based on legal requirements, so that as new projects
come in, each project will be required to compensate COSTCO directly based on
peak hour trip generation for a fifteen year period."
On December 9, 1999 the city council introduced and passed ordinance
1419. 	The ordinance amended Burlington Municipal Code (BMC) 12.28.010 to
establish standards and 	procedures for reimbursement agreements for street
projects. 	It 	stated 	that 	now 	the 	city 	engineer 	may 	require 	right-of-way
improvements as a prerequisite to further property development, and that it may
establish a timeline for those improvements. 	It also added a provision that tracked
the 	language 	of 	RCW 	35.72.020, 	stating 	that 	the 	City 	may 	enter 	into
reimbursement contracts with property owners. This type of contract is also known
as a "latecomer agreement."
On February 28, 2000 the City granted Costco a permit to construct its
facility. 	On August 1, 2000 Costco received a temporary certificate of occupancy.
Costco 	built 	its 	store 	and 	made 	the 	traffic 	improvements. 	Costco 	spent
approximately $1.7 million on the project, which created additional traffic capacity
at the 	George 	Hopper 	Road/l-5 	intersection 	beyond 	what 	was 	necessary to
mitigate the impact of the development.

No. 73608-6-1/6
Then, on July 7, 2006,2 the city attorney presented a resolution enabling the
City to enter into a latecomer agreement with Costco and a final draft of the
latecomer agreement to the city council. The city attorney presented the proposed
resolution at a city council meeting on July 13, 2006. 	A motion was made to
approve the resolution. 	All approved the motion. 	The resolution was formally
approved 	as 	resolution 	13-2006. 	The 	resolution 	established 	a 	preliminary
assessment reimbursement area pursuant to chapter 35.72 RCW, resolved that a
preliminary determination of area boundaries and assessments of the affected
property owners' rights and options would be forwarded to the property owners in
order to comply with the provisions of RCW 35.72.040(2), and resolved that a
hearing would be held if requested by an affect property owner within 20 days of
the notice being mailed.
Pursuant to RCW 35.72.040, 	in March 2007, 	property owners situated
within the preliminary assessment reimbursement area were notified via certified
mail. 	Several property owners requested a hearing. The hearing took place on
2 During 	these 	intervening years, Transportation 	Solutions, 	Inc. 	(TSI)
performed 	post-occupancy traffic studies of the relevant intersection, 	Costco
worked to satisfy all of the requirements of the MDNS, and TSI prepared draft
latecomer agreements. 	On May 	25, 2004, 	a new Burlington 	City Attorney
contacted 	counsel 	for 	Costco. 	He 	noted 	that 	although 	Costco 	had 	been
operational for several years and although neighboring developments had since
been 	constructed 	or 	were 	under 	construction 	and 	benefiting 	from 	the 	road
improvements, until recently, Costco had failed to actively pursue the latecomer
agreement. 	He stated that he was concerned about Costco's ability to be
reimbursed at that point. 	And, he noted that he was unaware of an agreement
between the City and Costco that would require the City to enter into a latecomer
agreement with Costco. 	Communication continued between the City and Costco.
On August 6, 2004, the City noted that it had reviewed a proposed latecomer
agreement from Costco and made comments.

No. 73608-6-1/7
August 23, 2007. 	The city attorney spoke and indicated that the city council would
make a decision after hearing from property owners and Costco. 	And, he noted
that whatever decision the city council made would be final. Attorney Tom Moser
appeared and spoke on behalf of Vern F. Sims Family Limited Partnership and the
Gilbert Family Properties LLC (collectively "Sims") which own property in the
assessment area. 	He requested that Sims's zone designation be revised to a
lower assessment rate.3
After Costco and property owners spoke, the city attorney stated that the
city council could accept the property owners' appeals, ask for further studies, or
make a decision immediately. City council members asked several questions and
suggested that the city attorney respond to their questions at the next city council
meeting. 	City council members agreed to continue to the item to the next city
council meeting.
The issue was raised again at the city council meeting on October 8, 2009—
over two years later. Moseragain spoke on behalfof Sims. He noted that because
Costco was constructed 	in Burlington 10 years earlier, it was too late to ask
remaining property owners to pay. 	The city attorney clarified that the city council
was to decide whether to approve the appeal of the specific property owners by
removing them from the assessment area—not whether to generally approve the
latecomer agreement. The city attorney noted that following a decision bythe city
council on the assessment area, he would prepare conclusions of law and findings
3 TSI's traffic study used a traffic model, which broke the City into various
zones to determine how many vehicle trips from each zone would use the street
improvements. The assessment rate is determined accordingly.

No. 73608-6-1/8
of fact and bring them before the council at the next regular meeting. 	And,
following that, the city council would consider the latecomer agreement itself. The
city council voted to deny the property owners' appeals.
As of February 10, 2011, findings and conclusions had not yet been entered
and were discussed at that city council meeting. The city attorney appeared at the
city council 	meeting and 	noted that although the public hearing was held on
October 8, 2009, two parties requested time to speak to council members about
the latecomer agreement issue. 	Council members elected to hear the two parties
speak. 	The two parties—including Moser who represented Sims—requested that
the Council hold a new public hearing, because two members of the current City
Council were not in office when the October 2009 hearing was held and that issues
of delay and intervening development raised at the hearing were not addressed in
the proposed findings and conclusions. 	At that point, the city council voted to
approve the findings of fact and conclusions of law as presented. The findings and
conclusions stated that the property owners' appeals were denied.4
On April 8, 2011, Sims filed a complaint for declaratory judgment, writ of
certiorari, and injunctive relief in Skagit County Superior Court. 	Costco filed an
answer to Sims's complaint on September 22, 2011. 	It alleged, among other
things, that Sims's complaint was untimely. 	On November 13, 2013, Sims moved
4 But, it also concluded that certain properties—including Sims's—should
be assigned to a different transportation analysis zone for assessment purposes,
as requested by Moser, because the completion of a road in the area altered the
traffic analysis. When the findings and conclusions were signed and attested by
Greg Thramer, Finance Director/City Clerk, on June 9, 2011, the only change was
to the date. The blank "day of February" became the "9th day of June."
8

No. 73608-6-1/9
for partial summary judgment, challenging the City's failure to give proper notice
to property owners pursuant to RCW35.72.030 and RCW35.72.040. On February
21, 2014, Sims moved for summary judgment, arguing that RCW 35.72.020 has a
15 year statute of limitations that precludes Costco from now looking to latecomers
for reimbursement. 	On April 22, 2014, Sims filed its third motion for summary
judgment, arguing that Costco's improvements were not required by any ordinance
as mandated by RCW 35.72.010. 	On December 17, 2014, Sims filed its fourth
motion for summary judgment, claiming that the City's resolution 13-2006 and
proposed latecomer agreement do not provide a benefit to Sims's property as
required by RCW 35.72.030. The trial court denied Sims's first four motions.
Then, on February 20, 2015, Costco filed a motion to dismiss, claiming that
Sims's claims are subject to and barred by LUPA, because it requires that any
petition for review be brought within 21 days of a final land use decision. 	On June
12, 2015, the trial court dismissed Sims's complaint as time barred. 	It reasoned
that the matter was subject to LUPA, and that the final decision for purposes of
calculating when the LUPA statute of limitations began to run was when the city
council rendered its oral decision denying Sims's appeal. Sims appeals. As ofthe
date of oral argument in this appeal, the latecomer agreement has not been signed
or filed.
DISCUSSION
This court reviews the trial court's ruling on a motion to dismiss de novo.
Becker v. Cmtv. Health Svs., 	Inc., 184 Wn.2d 252, 257, 359 P.3d 746 (2015).
Whether the trial court properly granted Costco's motion to dismiss involves

No. 73608-6-1/10
questions 	of statutory 	interpretation. 	This 	court 	reviews 	issues 	of statutory
interpretation de novo. 	Cerillo v. Esparza, 158 Wn.2d 194, 199, 142 P.3d 155
(2006). 	Additionally, when a superior court acts in an appellate capacity, as it did
in this case by reviewing the city council's decision, the superior court has only
jurisdiction that is conferred by law. Conom v. Snohomish County, 155 Wn.2d 154,
157,118 P.3d 344 (2005). Thus, before a superior court may exercise its appellate
jurisdiction, statutory procedural requirements must be satisfied, 	jd. 	A court
lacking jurisdiction must enter an order of dismissal. 	Id. 	A petition under LUPA
must be filed within 21 days of the land use decision or the petition is barred and
the court has no jurisdiction. 	RCW 36.70C.040(3); Knight, 173 Wn.2d at 337.
Whether a court may exercise jurisdiction is also a question of law subject to de
novo review. ]cL at 336.
A. 	Land Use Decision
First, Sims asserts that LUPA does not apply, because RCW 35.72.010 and
LUPA conflict. 	It asserts that because a final decision is rendered under RCW
35.72.040(2) that there can be no appeal leading to a final decision for purposes
of LUPA.
The preliminary determination ofarea boundaries and assessments may be
appealed by property owners within the proposed assessment area by requesting
a hearing within 20 days of mailing ofthe notice. RCW 35.72.040(2). If no property
owners 	appeal 	the 	preliminary 	determination 	of 	area 	boundaries 	and
assessments, 	the 	preliminary 	determination 	becomes 	final. 	See 	RCW
35.72.040(2). 	If an appeal is filed, the decision on appeal is the final decision. ]dL
10

No. 73608-6-1/11
A land use decision is reviewable under LUPA only if it is a final determination by
the 	local 	body 	or 	officer with the 	highest 	level 	of 	authority 	to 	make 	the
determination.5 	RCW 36.70C.020(2). 	Therefore, the two statutes can be read in
harmony. 	RCW 35.72.040 advances LUPA's goals by making it clear when a
decision is final and ripe for appeal under LUPA. 	Moreover, Sims provides no
authority to support its assertion that the two statutes conflict.
Sims also claims that its action cannot be time barred under LUPA, because
the City has not yet made a land use decision that triggers LUPA. 	Therefore, the
next question we must answer is whether the city council made a land use decision
that triggered LUPA.
A "land use decision" means a final determination on a declaratory decision
regarding the application to a specific property of other ordinances or rules
regulating the development of real property. 	RCW 36.70C.020(2)(b). The nature
of the decision made by the city council is made clear by what was set out in the
city council's findings of fact and conclusions of law and by what issues and
challenges were raised by property owners both in their written comments and
orally at the city council hearing. The approval of the assessment area was a final
decision under RCW 35.72.040. 	The city council's determination mandated that
should Sims or others decide to develop their property within the assessment area
during the period of the latecomer agreement, once executed, they would have to
5 RCW 35.72.040(2) states that the "legislative body's" ruling regarding
assessments is determinative and final. 	Sims does not contend that the city
council is not the local body with the highest level of authority to make the
determination.
11

No. 73608-6-1/12
pay assessments for benefits received 	pursuant to the 	latecomer agreement.
Clearly, this was a land use decision.
Sims asserts that the cases Costco relied on below and on appeal show
that LUPA applies only when a land use agency has required a property owner to
pay a specific fee. 	Sims argues that, therefore, LUPA will not apply until Sims
seeks a permit to develop its property, because that is when the specific latecomer
fee will be calculated and imposed.
We agree that a final land use decision for LUPA purposes is made when a
property owner applies for a permit, and the City calculates and imposes the
property owner's actual assessments. 	See RCW 36.70C.020(2)(a); see, e.g.,
James v. Countv of Kitsap, 154 Wn.2d 574, 586,115 P.3d 286 (2005) (holding that
the imposition of impact fees as a condition on the issuance of a building permits
was a land use decision subject to LUPA); Citv of Federal Way v. Town & Country
Real Estate, LLC, 161 Wn. App. 17, 35-36, 252 P.3d 382 (2011) (challenge of a
hearing examiner's decision to strike traffic impact mitigation payment properly
brought under LUPA); United Dev. Corp. v. Citv of Mill Creek, 106 Wn. App. 681,
686-87, 26 P.3d 943 (2001) (holding that the imposition of impact fees as a
condition of preliminary plat approval is a land use decision triggering LUPA). But,
those cases do not support the proposition that the imposition of a fee is the only
decision which can trigger a LUPA appeal.
B. The Decision Date
Sims also argues that even if the city council made a land use decision and
LUPA applies, the statute of limitations did not begin to run when the city council
12

No. 73608-6-1/13
made its oral decision in 2009. Sims argues that the statute of limitations does not
begin to run until there is a written decision. 	It argues that this did not occur until
June 9, 2011 when the city clerk signed the written findings of fact and conclusions
of law. Therefore, the next question we must answer is when the land use decision
denying Sims's appeal was made for LUPA purposes.
As stated above, a 	LUPA petition must be filed within 21 days of the
issuance of a final determination by the local jurisdiction. 	RCW 36.70C.040(3). A
local jurisdiction has issued a land use decision when one of the following occurs:
(4) For the purposes of this section, the date on which a land
use decision is issued is:
(a) Three days after a written decision is mailed by the local
jurisdiction or, if not mailed, the date on which the local jurisdiction
provides notice that a written decision is publicly available;
(b) If the land use decision is made by ordinance or resolution
by a legislative body sitting in a quasi-judicial capacity, the date the
body passes the ordinance or resolution; or
(c) If neither (a) nor (b) of this subsection applies, the date of
the decision is entered into the public record.
RCW 36.70C.040(4). 	In HabitatWatch v. Skagit Countv, 155 Wn.2d 397,408 n.5,
120 P.3d 56 (2005), the Washington Supreme Court expressly discussed when a
decision is likely to fall into subsection (c). 	The Habitat court explained that
subsection (c) likely applies when a decision is neither written 	nor made by
ordinance or resolution under subsection (a) or (b). 155 Wn.2d at 408 n.5. It noted
that this would include a decision "made orally at a city council meeting" which
issues "when the minutes from the meeting are made open to the public or the
decision is otherwise memorialized such that it is publicly accessible." la\
13

No. 73608-6-1/14
Then, in Northshore Inv'rs v. Citv of Tacoma, 174 Wn. App. 678, 691, 301
P.3d 1049 (2013), the court considered facts similar to those contemplated by the
Habitat court. 	The Northshore court considered whether a city council's oral vote
to deny Northshore's appeal of a rezone modification was a final land use decision
triggering LUPA's statute of limitations. 	174 Wn. App. at 681-82. 	Or, whether the
final decision issued after the city clerk later mailed a written notice to interested
parties, 	id at 689.
At the city council meeting, counsel for Northshore was present. ]d. at 685.
The city council orally voted on a motion and ultimately denied the appeal. 	]d_.
Directly afterthe meeting, a video recording ofthe hearing was posted on the City's
website, a DVD (digital video disc) copy of the video was delivered to the public
library, and the voting record and a closed-caption transcript of the hearing were
made available on the city's website. 	Id, at 685-86. 	The clerk mailed a written
notice of appeal to the parties two days later, 	\_± at 686. The Northshore court
ultimately held that the land use decision issued prior to the written notice of
appeal—when the decision was entered into the public record. 	Id. at 695. It noted
that no further action was required to make the oral vote a final decision. 	Id.
In so holding, the Northshore court distinguished itself from Hale v. Island
Countv, 88 Wn. App. 764, 946 P.2d 1192 (1997). Id at 690-91. There, the court
held that when a board of county commissioners made an oral decision and then
mailed a written decision 	15 days 	later, the written decision 	triggered RCW
36.70C.040, because the writing itselfwas the decision. Hale, 88 Wn. App. at 768.
The Hale court reasoned that the written decision was the final decision, because
14

No. 73608-6-1/15
it was prepared in advance and presented to the board for approval. 	Id. at 769.
When the board voted to approve, it signed the document, jd. The document was
not written after the decision had been made. jd.
The facts here are more similar to those in Northshore than in Hale. 	Here,
the city council was not presented with a written decision prior to its oral ruling
during the October 2009 meeting. Sims argues that Northshore is distinguishable,
because there, the written notice merely repeated what the city council had already
decided. 	Sims then makes a conclusory argument that the findings of fact here
are not a memorialization of an earlier decision, but rather the decision itself. 	But,
the October 2009 meeting minutes indicate that a motion was made to deny the
appeals of the property owners regarding the latecomer agreement and that the
motion carried. 	Therefore, the decision was made at the city council meeting,
nearly two years earlier than the findings and conclusions were signed by the city
clerk. 	In fact, the city attorney clarified at the October 2009 hearing that he would
prepare conclusions of law and findings of fact following a decision by the city
council at that meeting. And, like the oral decision in Northshore, the city council's
decision here was entered into the public record via the meeting minutes.
We hold that the final decision triggering LUPA's statute of limitations was
the oral decision made by the city council at the October 8, 2009 city council
meeting.6 Consequently, dismissal ofthe action was proper. We need not address
6 But even if Hale controlled, the findings and conclusions presented in
writing at the February 10, 2011 city council meeting were approved as submitted
at that meeting. 	Sims cites no authority for the proposition that the findings and
conclusions did not become enforceable until attested by the city clerk on June 9,
2011. Except for the date of attestation, the findings and conclusions attested were
15

No. 73608-6-1/16
the denial of Sims's summary judgment motions further, because each could have
been denied on the same basis.
C. 	Remaining Claims are Not Ripe
Sims argues that no ordinance was in place requiring Costco to make the
improvements as required by RCW 35.72.010. 	Sims argues that due to the 15
year limitation in RCW 35.72.020, too much time has passed to allow a latecomer
agreement to be executed. 	These arguments were untimely under LUPA to
challenge the assessment area. 	To the extent the arguments are addressed to
the legality of the latecomer agreement, the issues are not ripe for consideration.
No latecomer agreement had been executed at the time of this appeal.
Sims also argues that the delay has prejudiced it because intervening
developments could have been assessed for the benefits they received, but were
not. 	It argues that had assessments been imposed on the other developments,
Sims may have been relieved from assessment under RCW 35.72.030 and RCW
35.72.040. Sims also argues that all of the excess trip capacity created by Costco
has been consumed such that no benefit remains available for which it could be
assessed. 	These arguments address the appropriate amount of an assessment
that has not yet been made. 	They are not ripe for review.
identical to those approved 	February 10. 	Sims provides no authority for the
proposition that no decision occurred until the city clerk attested a written version
of the motion that passed. Therefore, whether the final decision was rendered on
October 8, 2009 or on February 20, 2011, Sims's lawsuit, filed April 8, 2011, was
untimely under LUPA to raise challenges to the findings and conclusions creating
the assessment zones.
16

No. 73608-6-1/17
The record demonstrates that traffic capacity ebbs and flows 	based on
many 	factors 	other 	than 	traffic 	generated 	by 	property 	development 	in the
assessment area. 	The challenge to whether a benefit is conferred can be made
at the time of the imposition of assessments during the permit process and is
subject to LUPA. 	This challenge might also be available independent of a permit
application 	if it could be 	shown 	that 	no benefit is possible to anyone in the
transportation analysis zone for the duration of the reimbursement assessment
contract. 	Again, because no latecomer agreement has been executed, these
issues are not ripe for our consideration.
We affirm.
WE CONCUR:
17