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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE ARTUR AND MARGARET ROJSZA, Respondents,
CITY OF FERNDALE, a Washington municipal corporation, Appellant. No. 69259-3-1

UNPUBLISHED OPINION FILED: April 7, 2014 Verellen, J. — This appeal, brought pursuantto the Land Use Petition Act chapter 36.70C RCW, concerns a dispute between the City of Ferndale (City) and Artur Rojsza, a homeownerwho remodeled his house for years without a permit, then repeatedly exceeded the scope of his permit despite the City's ongoing enforcement actions. When the City required Rojsza to apply for a new permit and to provide a $30,000 performance bond, Rojsza appealed to a hearing examiner, who concluded his appeal was untimely. The Whatcom County Superior Court reversed. The City appeals. We conclude that there was no final administrative decision by the City and that Rojsza's appeal is, accordingly, premature. We reverse and remand for dismissal. FACTS In 2005, Rojsza began to remodel his Ferndale home without obtaining a building permit. In2008, he started building an adjoining clock tower, also without a permit. City of Ferndale officials issued Rojsza a notice ofviolation on September 18, 2009. TheNo. 69259-3-1/2 

### Cityinformed Rojsza thatitwould undertake a criminal enforcementaction ifRojsza did not meetwith its development personnel to obtain building permits. Rojsza did not comply. InDecember 2009, the City initiated a criminal enforcement action. In 

### conjunctionwith the enforcement, Ferndale prosecutor David Nelson informed Rojsza's counsel by letterthatthe Cityplanned to require Rojsza to hire a structural engineerand to apply for a building permit. Rojsza agreed to take these steps and thereafter applied for a permit. Rojsza stated in his application that he would bring the earlier remodeling work into compliance and that he planned to complete the clock tower and make other 

### additions to the southern side ofthe home. The Citygranted the permit, but Rojsza's subsequent construction work exceeded the scope ofthe permit. 

### On July 29, 2010, Jori Burnett, the City's community development director, issued a stop-work order requiring Rojsza to immediately cease work and provide engineering drawings to allow a fullstructural inspection. Rojsza agreed to submit updated plans by August 20. The City liftedthe stop-work order. The City later agreed to extend the August 20 deadline untilthe end ofOctober, then subsequently extended the deadline until May 2011. InApril and early May 2011, Burnett asked Rojsza for an update. Rojsza informed Burnettthatthe cited nonconforming portions of his earlier remodel work had been corrected. However, Rojsza claimed thatthe clocktower and southern addition
were "not a part of our specific agreement" and that he did not have a time estimate for 

### completing the tower.1 Rojsza also requested thatthe Cityinspectthe property.
1Clerk's Papers at 587.No. 69259-3-1/3 

### Burnett explained that an inspection was not possible because Rojsza had not submitted engineering drawings as required. In a May 5, 2011 e-mail response, Rojsza reiterated his view that "the structural part ofthe projectthat needs to be incompliance 

### is done" and that he considered the "completion ofthe clock tower addition" a "separate, 

### independent" project.2 Also on May 5, 2011, Rojsza telephoned the City's inspection hotline to repeat his requestfor an inspection. In his May 9, 2011 e-mail, Burnett asserted that Rojsza had not met his 

### obligations underthe February 19, 2010 criminal enforcement "settlement agreement": While you have continued to work on this project, you have done so without periodic inspections by your structural engineeror the City.
... As these inspections have not taken place, and as since the deadline for adherence to the settlement agreement has passed, the Prosecuting Attorney and City staffagree thatthe City has no other legitimate option but to pursue its enforcement action
....

As perthe building permit itself, more than 180 days has passed since your last inspection. We understand by your e-mails that you feel that you requested an inspection. However, due to the non-prescriptive method that you have elected to build this structure, the City had notified you that inspections would occurtwo weeks after structural drawings, architectural drawings, and a reportfrom your structural engineerwas submitted to the City. The last inspection that took place was October 18, 2010. The next legitimate request for an inspection was last week, seven months afterthe last inspection, and that request did not include structural 

### engineering or reports.131 Two days later, Burnett sent Rojsza a letter explaining that the building permit had expired. However, he indicated thatthe City would continue working cooperatively with Rojsza ifhe met certain conditions:



### 2Clerk's Papers at 573. 3Clerk's Papers at 564.No. 69259-3-1/4 To bring what we considerto be final closure to this ordeal and to avoid costly and lengthy litigation, the City proposes the following: - A penalty of$500 shall be paid by you
... for failure to comply with the intent ofthe agreement and to compensate the City for ongoing legal and administrative expenses. The City will delay further enforcement action
. . . provided that all ofthe following occur: - At or prior to June 1, 2011, your structural engineer shall conduct a structural observation ofthe entire structure, including all elements proposed by the building permit orbuilt subsequentto that permit's issuance. - Within ten days ofthis structural observation, a report and engineered plans from the structural engineerwill be submitted to the City....

- An inspection will be requested at the time of submittal of the structural observation report.... 

### - The City inspector shall conduct an inspection.141 Rojsza did not satisfy these conditions. In a June 16, 2011 letterto Rojsza, Burnett set out new requirements. These 

### required Rojsza to schedule an inspection by July 1, 2011 and to provide "building 

### permitapplications and accurate structural, engineered, and architectural plans within ten business days of the inspection."5 Following the structural observation, the Citycommunicated to Rojsza that 

### although "elements of the building
. . . have been constructed without a permit," "[t]he Citywill not cite the Rojszas for the existing violations" provided that Rojsza submit architectural drawings by July 8, 2011 and engineering calculations and drawings by
4Clerk's Papers at 546-47. 5Clerk's Papers at 277.No. 69259-3-1/5 

### August5,2011.6 Theletterimposed a21-daytime limitforRojszatocomplete asiding project on the house. Rojsza submitted the architectural plans as required, but did not submit engineering drawings. 

### OnAugust 18,2011, the City cited Rojszaforfailing toapplyfor a building permit for alterations to a structure or deviatingfrom approved plans. On August 19,2011, 

### Burnettreiteratedin an e-mail to Rojsza's counsel that Rojsza needed to applyfor a
newbuilding permit. The e-mail also stated that the Citywould "require that the Rojszas submit a reasonable performance bond to ensure completion [ofthe sidingwork] within the time limit set."7 Burnett explained that we would expectto receive a bond amountequal to 150% ofthe valuation 

### the Citydetermines on the building permit.
... We will expectto callthat bond ifthe work is not completed [and inspected] within sixweeks of permit issuance.
... Ifthe Rojszas are able to complete the work ahead of the deadline, the City would be able to release the bond.[8] 

### In an August 31 e-mail to Rojsza's counsel, Burnett again stated that the City would require a performance bond or assignment ofsavings: One thing that was missing from the application was an estimate of 

### the cost of the work, including an estimate to complete the exterior siding 

### forpurpose of determining an appropriate bond/Assignmentof Savings amount. . . . [In] the eventthatthe Rojszas are unable or unwilling to completethe work inthe six-weektime frame after issuance, the City would be required to pay fair market value for both materials and labor in orderto complete the workJ9] 

### Rojsza submitted application materials. On September7, 2011, the City informed Rojsza's counsel that itwas ready to issue the building permit but would
6Clerk's Papers at 1445. 

### 7Clerk's Papers at 1448. 8Clerk's Papers at 1448. 9Clerk's Papers at 387.No. 69259-3-1/6 

### require an assignment offunds or bond inthe amount of$30,000. Rojsza opted not to pick up the new permit. In follow-up e-mail correspondence with Rojsza's counsel, Burnett stated that "from the City's perspective, there needs to be a new permit regardless ofwhetherthe previous permit.
.. expired or not" and that Rojsza could 

### avoid the bond requirement by simply completing the siding work.10 On September 16, 2011, Rojsza filed an administrative appeal. The hearing examiner concluded that Rojsza's appeal was untimely as to every issue exceptthe specific amount ofthe performance bond required. The hearing examiner upheld the 

### requirements that Rojsza obtain a new building permit and post a $30,000 performance bond or assignment of savings. 

### Rojsza appealed to the Whatcom County Superior Court pursuantto chapter 37.70C, the Land Use Petition Act (LUPA). The superiorcourt reversed, concluding 

### that Rojsza's administrative appeal was timely,thatthe earlier permit did not expire, that Rojsza's permit application was for an amendment to the original permit, and that the Citytherefore lacked statutory authorityto require a performance bond. The City appeals. ANALYSIS The threshold issue is whetherthere was any final administrative decision by the 

### City from which Rojsza could appeal. We conclude there was not. Rojsza's appeal is therefore premature.

10 Clerk's Papers at 352.

6No. 69259-3-1/7 

### When reviewing a superiorcourt's decision under LUPA, this court stands in the 

### shoes of the superiorcourt, reviewing the ruling belowon the administrative record.11 On appeal, the party whofiled the petitionbears the burden of establishing one of the following: 

### "(a) The body or officer that made the land use decision engaged in unlawfulprocedure 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 forsuch deference as is due the construction of a law by a local jurisdiction with expertise; 

### "(c)The land use decision is not supported by evidence that is substantial when viewed in light ofthe whole record before the court; 

### "(d) The land use decision is a clearlyerroneous application of the law to the facts; 

### "(f) The land use decision violates the constitutional rights of the 

### party seeking relief."[12] A "land use decision" is defined under LUPA as "a finaldetermination by a local 

### jurisdiction's body orofficerwith the highestlevel ofauthorityto make the determination."13 A land use decision is "final" for purposes of LUPAwhen it"'leaves 

### nothing open tofurtherdispute'" and'"sets at rest[the] cause ofaction between the parties.'"14
11 King County Dep't. ofDev. and Envtl. Servs. v. King County, 177 Wn.2d 636, 643, 305 P.3d 240 (2013). 12 City ofFederal Way v. Town &Country Real Estate, LLC, 161 Wn. App. 17, 

### 36-37, 252 P.3d 382 (2011) (quoting RCW 36.70C. 130(1)). 13 RCW 36.70C.020(2) (emphasis added). 

### 14 Durland v. San Juan County. 174 Wn. App. 1, 13, 298 P.3d 757 (2012) 

### (alteration in original) (quoting Samuel's Furniture. Inc. v. Dep'tofEcology, 147Wn.2d 440, 452, 54 P.3d 1194 (2002)).No. 69259-3-1/8 The City's communication with Rojsza does not supportthe conclusion that any individual letter or e-mail from Burnett was a final determination or decision requiring an appeal. Rather, the correspondence reflected an ongoing collaborative effort to arrive at mutually acceptable compliance. Such efforts are laudable, but only a genuine final decision is appealable. Land use decisions become final and appealable only ifthe decision finally and unequivocally settles the pending dispute. For example, in Durland v. San Juan County, this court recognized a distinction between "an interlocutory decision" made by
an administrative official and a "final"decision, which "'leaves nothing open to further 

### dispute'" and "'sets at rest [the] cause of action between parties.'"15 "Meredecisions about the process to be followed in making a land use decision are not final land use 

### decisions."16 This court has also held that "[a]nagency's letter does not constitute a final order unless the letter clearly fixes a legal relationship as a consummation ofthe 

### administrative process" and that "[t]he letter must be clearly understandable as a final determination of rights, and doubts as to the finality ofsuch communications must be resolved in favor ofthe citizen."17 Most ofthe City's correspondence with Rojsza and his representatives was 

### cooperative intone. Even though Rojsza repeatedly failed to meetthe requirements 

### placed on him,the Cityrepeatedly responded by changing the requirements and moving backthe deadlines. For instance, although the May 11, 2011 letterfrom Burnett
15174 Wn. App. 1, 13-14, 298 P.3d 757 (2012) (alteration in original) (quoting Samuel's Furniture, 147 Wn.2d at452). 

### 16id, at 14. 17WCHS, Inc. v. City of Lvnnwood, 120 Wn. App. 668, 679, 86 P.3d 1169 (2004).No. 69259-3-1/9 

### declares "your building permit has expired" and later refers to "expiration ofthe building permit," the letter is entitled "RE: Potential SettlementAgreement" and proposes a new 

### settlementthat could culminate indismissal of the pending citation.18 The bulk of the letter recites history and itemizes detailed conditions of a proposed settlement. The May 11, 2011 letter provides no indication that the matter at issue has been "set at rest."19AJune 16, 2011 letterfrom Burnett details two violations and directs that "you 

### must nowcomply."20 The letter directs Rojsza to schedule an inspection and provide all necessary information, including building permit applications and accurate plans. Upon completion ofthese steps, ifthe City deems the application materials "to be complete 

### and accurate," the City"will make the building permit available to you for issuance."21 The letter also quotes the municipal code section governing "[ajmended construction 

### documents" and the section on "[suspension or revocation."22 Burnett recites "that it
now appears that the permit was issued on the basis of incorrect, inaccurate and incomplete information" and that penalties willbe imposed ifRojsza does not correctthe 

### violations.23 This letter falls short of an express and direct communication of a decision setting the dispute to rest.


### 18 Clerk's Papers at 544-45. 19 See Durland, 174 Wn. App. at 13 (guoting Samuel's Furniture, 147 Wn.2d at 452). 

### 20 Clerk's Papers at 277. 21 Clerk's Papers at 277. 22 Clerk's Papers at 278-79. 23 Clerk's Papers at 279. Contrary to the City's argument, the letter makes no express reference to a "new" permit. The multiple references to "permit application" and making the "building permit available" couldjust as easily be read as referring toNo. 69259-3-1/10 The September7, 2011 e-mail from Burnettto Rojsza's attorney merely itemized fees for the permit and advised that the permit was ready to pick up and must be picked up by September 21, 2011, that the bond amount was $30,000, and thatthe owner had six weeks to complete exterior siding. It is understandable that a cautious owner might not want to take the risk of missing the appeal period. But consistentwith the prior correspondence, the September7, 2011 e-mail is not a decision allowing an appeal as itdoes not purportto resolve the dispute between the parties. The City has not yet setforth a clear and express final decision. The communications back and forth were almost all informal, casual, and ongoing negotiations ofattempts to resolve the evolving dispute. None ofthe communications expressly and clearly setforth a decision by the City purporting to set the dispute to
rest. Rojsza argues thatthis issue was not raised by the City before the hearing examiner. But we review the decision ofthe hearing examiner de novo. The question 

### ofwhetherthe appeal was premature is squarely before us.24 We decline to further address the status ofthe permit and ofthe enforcement efforts ofthe City. The administrative appeal before the hearing examinerwas
materials for an amended permit consistentwith the code section on amended permits quoted inthe letter. Burnett recites that the existing permitwas issued on incorrect, inaccurate, and incomplete information but does not expressly state thatthe City has revoked the existing permit. 24 As counsel for Rojsza acknowledged at oral argument, this court is not bound 

### by any manifestation bythe parties that a particularcommunication was an appealable decision. See Perkins Coie vWilliams, 84 Wn. App 733, 741, 929 P.2d 1215(1997) (party could not "reduce the scope of issues" before reviewing court by stipulation); Schneiderv. Setzer, 74 Wn. App. 373, 375, 872 P.2d 1158 (1994) (parties' stipulation regarding appealability and scope ofappellate review did not bind appellate court as to nature and scope of review of an arbitrator's decision).

10No. 69259-3-1/11 

### premature, the hearing examiner's decision has no binding effect, and the LUPA appeal is appropriately dismissed. We reverse and remand for dismissal.

WE CONCUR:



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