December 7, 2018

How to Sufficiently Argue Your Land Use Appeal: Division III Clarifies Scope of “Exhaustion of Administrative Remedies” Requirement


In Washington, the Land Use Petition Act (RCW 36.70C, “LUPA”) governs judicial review of all “land use decisions.”  LUPA provides a strict, uniform process of procedure to appeal land use decisions on a variety of grounds. 

The most important and often the most litigated issue under LUPA involves standing.  With respect to standing, LUPA requires that the appellant satisfy four criteria:

  1. The appellant is prejudiced by the land use decision (i.e., harmed by it);
  2. The jurisdiction was required to consider the interests of appellant in reaching its land use decision;
  3. The court can order proper relief for the appellant; and
  4. The appellant has “exhausted his or her administrative remedies” prior to seeking judicial review.

RCW 36.70C.060(2).


In a recent decision, Division III of the Washington state court of appeals clarified to what extent an appellant must go to “exhaust[] his or her administrative remedies.”  In Aho Construction I, Inc. v. City of Moxee, the applicant challenged the City of Moxee City Council’s denial of their rezone and subdivision application.  The application proceeded through the Hearing Examiner review, which was an open record public hearing, and then to the City Council on recommendation from the Examiner in a closed record hearing.


Applicant, and its representatives, appeared at the hearing and participated in developing the record, specifically identifying the applicant’s concerns with a proposed condition on the application that involved a road extension.  The Hearing Examiner issued its recommendation, subject to the condition, and the application proceeded to the City Council for a closed record hearing.  Applicant’s attorney appeared and provided further comments, despite it being a closed record hearing.  City Council unanimously approved the Hearing Examiner’s recommendation.  


Applicant appealed through LUPA to superior court, arguing that the condition constituted an unlawful taking and was not reasonably necessary as a result of the development (i.e., RCW 82.02 claims).  The court dismissed the case for the applicant’s failure to exhaust its administrative remedies, as required under LUPA.  On appeal, the case proceeded to Division III.


The court first analyzed some of its prior decisions concerning the “exhaustion” doctrine, one of which held that to properly exhaust administrative remedies, the appellant must do “more than simply a hint or slight reference to the issue in the record.”  In other words, the appellant must do something more than simply notify the administrative agency of the relevant issue or applicable law.   


Given the ambiguity in that “test,” however, Division III recharacterized the “exhaustion of administrative remedies” doctrine.  The court concluded that the exhaustion test in fact should “impose[] a minimal burden on the challenger of the administrative agency action.”  Instead, exhaustion requires an analysis of many factors, including the number of sentences or amount of language devoted to an issue, the amount of language, the clarity of the presentation or argument, citations to statues and other relevant law, whether the challenger presented the issue as related to specific facts, etc.  These are some considerations that are relevant to the “exhaustion” inquiry.


In this case, the applicant (and its representative) repeatedly informed the City that the condition on its application was a taking of property without just compensation and that the City lacked legal justification for the condition.  The applicant raised state and federal law, cited accurately to case law, and focused on the issue, rather than “wandering into other topics.”   Additionally, the applicant prepared written and oral remarks for the City’s review of the application.


The City maintained that the applicant did all the above in front of the Hearing Examiner, but failed to do so at the City Council.  The court rejected this view, finding that exhaustion of remedies before the Examiner extends to exhaustion before the City Council, since the council was reviewing the Examiner’s record and decision.   


The court did prohibit the applicant from raising issues related to its RCW 82.02 claim, since the applicant failed to raise that claim with the Examiner, and the City Council’s record never cited to the provision.  In that instance, applicant did not properly exhaust its remedies.



Exhaustion of administrative remedies is a core tenet of Washington land use law.  It ensures the appellant’s proceed through the proper avenues of appeal, and keeps a clean, accurate, and robust record for later review. 


The court’s decision here does not necessarily “clarify” the “exhaustion” doctrine, especially with respect to LUPA standing.  However, it does provide a looser standard for appellants to demonstrate standing. 


For those considering whether to challenge a land use decision, or in the midst of an appeal, one should be certain to accurately and sufficiently plead your case throughout the appellate process—from comments on the proposed application through testimony at the hearing.  Specify why you believe you are harmed, identify specific issues within the application itself, including conditions, facts, or subsequent impacts, and make sure the jurisdiction knows precisely why you are challenging, or taking issue, with the respective decision or matter at hand. 


For more information on this topic, please contact or call (888) 598-7070.


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