Supreme Court Ruling - Department of Ecology Must Follow LUPA in Shoreline Challenge

October 8, 2002

The state supreme court ruled October 3 that the Department of Ecology (DOE) had to challenge the city of Ferndale's issuance of construction permits under the Land Use Protection Act (LUPA), within 21 days of the permits' issuance, rather than later under the Shoreline's Management Act (SMA). The decision, titled Samuel's Furniture, Inc. v. Department of Ecology, was decided on a vote of five to four, with the majority opinion authored by Justice Bobbe Bridge.

Samuel's Furniture sought in 1998 to extend its furniture store located in Ferndale. It applied to the city for various construction permits, including grading and building permits. The city, after reviewing its approved Shorelines Master Plan, concluded that the extension project was not within the shoreline jurisdiction. As part of the permitting process, Samuel's was required to complete a SEPA checklist; in response to one of the questions on the checklist, Samuel's indicated that the project was both in the "immediate vicinity" and within the 100-year floodplain of the Nooksack River. The city issued the required permits and Samuel's began pre-construction. Acting upon a complaint, DOE contacted the city, warning that the project might be within the shoreline jurisdiction and that a substantial development permit was required. The city issued a "stop work" order. Upon review, the city withdrew the order; DOE did not appeal the decision. Later, however, DOE changed its position, and indicated that it might take enforcement action. Samuel's sought a declaratory judgment from the court. The superior court sided with Samuels, concluding that DOE had waived its right of appeal by failing to bring a challenge under LUPA. On appeal, the court of appeals reversed, finding that LUPA only applied to a "final determination" by the local jurisdiction, and because the SMA decisions were to be reviewed by DOE, the city's decision was not "final."

The supreme court reversed the court of appeals decision, concluding that the city's decision was "final," and that, while reviewable by DOE, the decision could not be unilaterally reversed by DOE. If DOE wished to challenge the city's action, it would need to timely file under LUPA. Otherwise, the applicant might be subject to challenge months, or even years, after the local permits had been issued, placing its project and expended sums at peril. The court also held that DOE had general notice of Samuels' proposed actions and, if it wanted more, it could have adopted a rule making such a requirement. Because the DOE failed to file under LUPA within 21 days of the city's actions on the issuance of the permits and the lifting of the stop work order, it had waived its ability to do so.