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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

HARLAN CLAIRE STIENTJES                     )
FAMILY TRUST and                            )       DIVISION ONE
MARY JO STIENTJES,                          )
                                            )       No. 63865-3-I
                      Respondents,          )
                                            )
                      v.                    )
                                            )
THURSTON COUNTY,                            )
                                            )
                      Defendant,            )       PUBLISHED OPINION
                                            )
                      and                   )
                                            )
LARESSA VIA-FOURRE and                      )
CHARLES VIA,                                )
                                            )
                      Appellants.           )       FILED:  October 12, 2009
________________________________)

       Dwyer, A.C.J.  --  Pursuant to the Land Use Petition Act (LUPA), chapter 36.70C 

RCW, a court may review a local government's land use decision only if the decision is 

final.  A land use decision is final when it leaves nothing open to further dispute and 

sets to rest the cause of action between the parties.  In this case, the Thurston County 

Board of County Commissioners (BOCC) remanded an administrative challenge to a 

construction site plan to its hearing examiner for further proceedings. The superior 

court reversed this decision. However, the BOCC's decision was not a final decision 

No. 63865-3-I/2

because it did not conclusively determine the rights of the parties by settling the 

challenging party's entitlement to relief.  Therefore, the superior court lacked authority 

to conduct a LUPA review of the BOCC's decision.  Accordingly, we reverse the

superior court's ruling and remand this matter to the BOCC for reinstatement of its 

earlier decision.    

                                                I

       This LUPA petition stems from a dispute between two neighboring 

couples -- Laressa Via-Fourre and Charles Via (together, "Via-Fourre") and Harlan and 
Mary Jo Stientjes1 (together, "Stientjes") -- concerning the construction of a detached 

carport on Stientjes' property.  The parties' properties abut one another on a marine 

bluff. On July 11, 2007, Stientjes applied for and obtained a building permit for 

construction of the carport from the Thurston County Development Services 

Department (DSD).  DSD issued the permit even though Stientjes' application omitted 

certain requested information about the property, including (1) a construction site plan 

indicating the location of required marine setbacks and buffers and (2) statements as to 

whether the property was within 300 feet of water and contained slopes with grades 

steeper than 50 percent.  

       Pursuant to the Thurston County Code, TCC 20.60.060, a person aggrieved by a 

DSD decision has 14 days to appeal from the decision to the county hearing examiner.  

Although Via-Fourre opposed construction of the carport, she did not formally 

challenge DSD's decision to issue the building permit by filing an administrative appeal 

       1 Although the Harlan Claire Stientjes Family Trust is a designated party, we refer to the 
respondents in their individual capacities, consistent with the parties' briefing. 

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No. 63865-3-I/3

within this time frame.  Instead, at some point in late July and again in August, she

informally raised concerns with DSD about whether the proposed location of the carport 

would satisfy marine bluff setback requirements under the county's Critical Areas 

Ordinance (CAO), TCC 17.15.620.  

       In response to Via-Fourre's concerns, DSD personnel inspected Stientjes'

construction site in late August.  They determined that the site plan did not contain

sufficient setbacks, relative to both Stientjes' property boundary and the height of the 

marine bluff, to meet CAO requirements.  Accordingly, they posted a stop work order at 

the site. 

       However, the stop work order was short-lived.  On the basis of new information,

DSD subsequently determined that the site plan satisfied CAO setback requirements.  

On November 19, it lifted the stop work order, allowing the planned construction to 

proceed subject to additional conditions.  

       On November 30, Via-Fourre appealed from DSD's decision to lift the stop work 

order to the county hearing examiner.  She raised several issues in the appeal, 

including whether DSD's calculations of the setback positions were accurate and 

whether the setbacks complied with the requirements of the CAO.  Although Via-Fourre 

appealed from DSD's decision to remove the stop work order, she specifically referred 

to Stientjes' building permit as the basis for her appeal.  

       The hearing examiner subsequently denied Via-Fourre's request for relief, 

dismissing her administrative appeal as untimely.  After determining that Via-Fourre's 

appeal concerned the building permit issued on July 11, the hearing examiner 

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No. 63865-3-I/4

concluded that her appeal was untimely under LUPA's strict requirement that an appeal 

from a final land use decision be filed in the appropriate superior court within 21 days 
of the decision.2 See RCW 36.70C.040(3).  The hearing examiner did not address

whether Via-Fourre had complied with the county code's 14-day time limit for filing 

administrative appeals or whether DSD's November 19 decision to lift the stop work 

order constituted a land use decision separate from the July 11 permit decision.    
       Via-Fourre then appealed from the hearing examiner's order to the BOCC.3 The 

BOCC reversed the hearing examiner's ruling that Via-Fourre's challenge was time-

barred and remanded Via-Fourre's cause for further review.  In so doing, it emphasized 

that the cause concerned whether DSD had correctly applied the CAO in deciding to lift 

the stop work order.  In remanding the cause for further proceedings, the BOCC 

specifically directed the hearing examiner to determine whether the site plan complied 

with the CAO.  The BOCC did not revoke Stientjes' permit or otherwise encumber his 
right to construct the carport as granted by the building permit.4  

       Stientjes then sought LUPA review of the BOCC's decision in superior court.  

The superior court granted Stientjes' petition, reversing the BOCC's decision and 

reinstating the hearing examiner's order of dismissal.  The superior court concluded 

that Via-Fourre's failure to challenge the building permit within 21 days of its initial

issuance rendered any subsequent challenge concerning the permit an impermissible 

collateral attack.  

       2 The hearing examiner so ruled, even though LUPA governs judicial review of local land use 
decisions as opposed to setting forth procedures applicable to local administrative processes.  
       3 TCC 20.60.060(2) provides that an aggrieved person may appeal from a hearing examiner's 
land use decision to the BOCC.
       4 Indeed, the record indicates that Stientjes eventually completed construction on the carport.  

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No. 63865-3-I/5

                                               II

       Via-Fourre contends that the BOCC's decision was not a final land use decision 

and therefore the superior court lacked authority to review it.  We agree.

       With certain exceptions not pertinent here, LUPA provides the "exclusive means 
of judicial review of land use decisions."  RCW 36.70C.030(1);5 Samuel's Furniture, Inc. 

v. Dep't of Ecology, 147 Wn.2d 440, 449, 54 P.3d 1194, 63 P.3d 764 (2002).  LUPA 

defines a "land use decision" as the "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 administrative actions and interpretation of regulations 
affecting the use of real property.  RCW 36.70C.020(1) (emphasis added);6 see also

       5 RCW 36.70C.030(1) provides, in pertinent part:

       [LUPA] replaces the writ of certiorari for appeal of land use decisions and shall be the 
       exclusive means of judicial review of land use decisions, except that this chapter does 
       not apply to:
              (a) Judicial review of:
              (i) Land use decisions made by bodies that are not part of a local jurisdiction;
              (ii) Land use decisions of a local jurisdiction that are subject to review by a
       quasi-judicial body created by state law, such as the shorelines hearings board, the 
       environmental and land use hearings board, or the growth management hearings board;
              (b) Judicial review of applications for a writ of mandamus or prohibition; or
              (c) Claims provided by any law for monetary damages or compensation.

       6 RCW 36.70C.020(1) provides, in full:

              "Land use decision" means 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) An application for a project permit or other governmental approval required
       by law before real property may be improved, developed, modified, sold, transferred, or 
       used, but excluding applications for permits or approvals to use, vacate, or transfer 
       streets, parks, and similar types of public property; excluding applications for legislative 
       approvals such as area-wide rezones and annexations; and excluding applications for 
       business licenses;
              (b) An interpretive 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.  
       However, when a local jurisdiction is required by law to enforce the ordinances in a court 
       of limited jurisdiction, a petition may not be brought under this chapter.

                                              - 5 - 

No. 63865-3-I/6

Chelan County v. Nykreim, 146 Wn.2d 904, 52 P.3d 1 (2002) (holding that a local 

jurisdiction's decision concerning a building permit application constitutes a land use 

decision).  For a superior court to have the authority to conduct a LUPA review of a 

local government's land use decision, the appeal "must be from a final governmental 

decision."  Nykreim, 146 Wn.2d at 938; see also Grandmaster Sheng-Yen Lu v. King 

County, 110 Wn. App. 92, 100, 38 P.3d 1040 (2002) (concluding that "courts should 

generally defer review of decisions involving the use of land until such decisions are 

final -- that is when the highest body or officer has finally acted").  

       In the context of applying LUPA, our Supreme Court has explained that "'[a] final 

decision' is '[o]ne which leaves nothing open to further dispute and which sets at rest 

[the] cause of action between parties.'"  Samuel's Furniture, 147 Wn.2d at 452 (second

alteration in original) (quoting Black's Law Dictionary 567 (5th ed. 1979)).  In other 

words, "'[a] judgment is considered final on appeal if it concludes the action by 

resolving the plaintiff's entitlement to the requested relief.'"  Samuel's Furniture, 147 

Wn.2d at 452 (quoting Purse Seine Vessel Owners Ass'n v. State, 92 Wn. App. 381, 

387, 966 P.2d 928 (1998)).  Further, "[a] decision must be either final or interlocutory 

for appellate purposes."  Samuel's Furniture, 147 Wn.2d at 452.  An interlocutory 

decision is "one that is 'not final,' but is instead 'intervening between the 

commencement and the end of a suit which decides some point or matter, but is not a 

final decision of the whole controversy.'"  Samuel's Furniture, 147 Wn.2d at 452 

(quoting Black's, supra, at 731).  

       LUPA's requirement of finality comports with the principle that judicial review on 

                                              - 6 - 

No. 63865-3-I/7

a piecemeal basis is generally disfavored.  See Fox v. Sunmaster Prods., Inc., 115 

Wn.2d 498, 503 -- 04, 798 P.2d 808 (1990); State ex rel. Stone v. Superior Court, 

Spokane County, 97 Wash. 172, 176, 166 P. 69 (1917). Indeed, courts have "long 

recognized the strong public policy evidenced in LUPA, supporting administrative 

finality in land use decisions" before courts of law review administrative decisions of 

local jurisdictions.  James v. Kitsap County, 154 Wn.2d 574, 589, 115 P.3d 286 (2005) 

(citing Nykreim, 146 Wn.2d at 931 -- 32); see also Habitat Watch v. Skagit County, 155 

Wn.2d 397, 421, 120 P.3d 56 (2005) (Chambers, J., concurring) (observing that "the 

overwhelming purpose of LUPA was to unburden land use decisions from protracted 

litigation").  In tandem with LUPA's exhaustion of administrative remedies requirement, 

RCW 36.70C.060(2)(d), the finality requirement prevents a party from needlessly 

turning to a court for judicial relief when a local authority may still provide the requested 

relief.  See South Hollywood Hills Citizens Ass'n for Preservation of Neighborhood 

Safety & Env't v. King County, 101 Wn.2d 68, 73 -- 74, 677 P.2d 114 (1984) (discussing 

exhaustion of remedies requirement in context of challenge to plat approval for 

subdivision construction) (citing McKart v. United States, 395 U.S. 185, 89 S. Ct. 1657, 

23 L. Ed. 2d 194 (1969)). In short, the finality requirement of LUPA eliminates

"premature judicial intrusion into land use decisions."  Sheng-Yen Lu, 110 Wn. App. at 

101. 

       The finality requirement was not satisfied herein.  Although the BOCC is the 

highest level of authority in the county to make land use decisions and had the 

authority to hear Via-Fourre's appeal from the hearing examiner's decision, its decision 

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No. 63865-3-I/8

was not final for purposes of review under LUPA.  In reversing the hearing examiner's 

ruling and remanding the cause for consideration of whether DSD had properly applied 

the CAO to Stientjes' site plan, the BOCC did not reinstate the stop work order, much 

less reverse DSD's decision to issue the building permit in the first instance. Nor did it 

affirm the hearing examiner's order of dismissal.  As it did not settle the controversy 

between the parties, the BOCC's decision was akin to a court order denying a

dispositive pretrial motion from which an appeal may not be taken.  The decision was, 
by definition, interlocutory, rather than final.7  

       Stientjes incorrectly asserts that judicial review of the BOCC's decision was 

nonetheless appropriate because Via-Fourre's administrative challenge should be 

viewed as nothing other than an impermissible collateral attack on DSD's initial 
decision to issue the building permit.8  Even if Stientjes is ultimately correct that Via-

Fourre's challenge to DSD's decision is time-barred, the BOCC's interlocutory decision

reversing the hearing examiner's ruling on this point was not a final decision for LUPA 

purposes.  Whereas a decision affirming the hearing examiner's ruling would have 

       7 Analytically, the BOCC's decision is no different from the actions of other local governmental 
authorities that have been held to be interlocutory because they did not settle the controversy between 
the parties.  See, e.g., Heller Bldg., LLC v. City of Bellevue, 147 Wn. App. 46, 56, 194 P.3d 264 (2008) 
(holding that a city's stop work order that did not indicate specific code violations as required by local law 
was not a final land use decision); Harrington v. Spokane County, 128 Wn. App. 202, 212, 114 P.3d 
1233 (2005) (holding that initial rejections of permit applications were not final appealable orders where 
county ultimately granted modified application for permit); WCHS, Inc. v. City of Lynnwood, 120 Wn. 
App. 668, 679, 86 P.3d 1169 (2004) (holding that a city letter denying a building permit, absent express 
language that the decision was final, constituted an interlocutory decision not subject to LUPA review);
Pacific Rock Envtl. Enhancement Group v. Clark County, 92 Wn. App. 777, 781 -- 82, 964 P.2d 1211 
(1998) (holding that a prehearing discovery order was not subject to appeal under LUPA).  
       8 Our Supreme Court has held that "even illegal decisions must be challenged in a timely, 
appropriate manner."  Habitat Watch, 155 Wn.2d at 407 (citing Pierce v. King County, 62 Wn.2d 324, 
334, 382 P.2d 628 (1963)).  Thus, challenges brought after the expiration of deadlines for filing local 
administrative appeals or after LUPA's 21-day time period for filing an appeal constitute impermissible 
collateral attacks.  Habitat Watch, 155 Wn.2d at 410 -- 11.  See also, Nykreim, 146 Wn.2d at 933; 
Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 181, 4 P.3d 123 (2000).

                                              - 8 - 

No. 63865-3-I/9

conclusively settled the issue of Via-Fourre's entitlement to relief, the BOCC's decision 

to reverse and remand did not affect Stientjes' rights to develop his property.  Indeed, 

Stienjtes may very well prevail on remand.  Whether a land use decision is final turns 

on whether the governmental action at issue "reaches the merits," not on whether the 

wisdom of such action is "potentially debatable."  Samuel's Furniture, 147 Wn.2d at 

452.  A local jurisdiction's decision concerning a building permit application is final for 

purposes of LUPA if a party "receive[s] the relief it had requested" and "[n]o additional 

issues remain[ ]." Samuel's Furniture, 147 Wn.2d 453 (citing Reif v. LaFollette, 19 

Wn.2d 366, 370, 142 P.2d 1015 (1943)).  Because additional issues in the controversy 

herein remain to be decided and Stientjes may yet prevail, the BOCC's decision was 

not final.   Accordingly, the superior court lacked authority to consider Stientjes' LUPA 

petition.

       Reversed and remanded.

We concur:

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