IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JAMES and EVELYN CHUMBLEY,
husband and wife; BNSF RAILWAY        No. 74528-0-1
COMPANY, INC., a Delaware corpora
tion,                                 DIVISION ONE

                  Appellants,

            and


IRENE ARTHERHOLT; THE LESTER
G. AND IRENE ARTHERHOLT
REVOCABLE TRUST; GLENN AND
PATRICIA DALBY, husband and wife;
ROY MAIN; THOMAS and MADELINE
NORMAN, husband and wife;             PUBLISHED OPINION

                  Plaintiffs,         FILED: December 27, 2016




SNOHOMISH COUNTY, a Washington
municipal corporation; SNOHOMISH
HEALTH DISTRICT, a Washington
municipal corporation; BEGIS
BUILDING INC., a Washington
corporation; JAKE BEGIS,

                  Respondents,

            and

KEE BONG KIM and DIANA YONG,
husband and wife,

                  Defendants.
No. 74528-0-1/2


       Becker, J. — Steep bluffs rise above the railroad tracks that run along the

shoreline between Edmonds and Mukilteo. A developer built a residence on an

upland lot and began to install an approved sewage disposal system on two

hillside lots below. While grading the hillside for the drain field, the installer

struck a spring and caused seepage to flow down the slope and into a private

driveway. The railroad and neighboring homeowners sued to stop the use of the

sewage disposal system pending further engineering analysis. They alleged that

grading had occurred on the hillside lots without enforcement of Snohomish

County ordinances regulating the disturbance of land in landslide hazard

areas. The trial court dismissed the action as an untimely land use petition that

should have been brought months earlier when the sewage system was

approved and the building permit was issued.

       The dismissal was a misapplication of Samuel's Furniture, Inc. v. Dep't of

Ecology. 147 Wash. 2d 440, 54 P.3d 1194, 63 P.3d 764 (2002). The county has an

independent and ongoing responsibility to regulate grading on steep

slopes. That responsibility is not discharged or preempted when a health district

approves a sewage system for placement on a slope. Because this action was

timely filed within 21 days of the county's final decision that a permit to grade the

hillside lots was not required, we reverse and remand for reinstatement of the

complaint.
No. 74528-0-1/3


                                 CHRONOLOGY

      In 2014, respondents Jake Begis and his company, Begis Building Inc.

("Begis"), made plans to build a single-family residence at 11706 Marine View

Drive, Edmonds, Washington. The Marine View Drive address for the residence

Begis planned is on an upland lot numbered 36.

      To begin the project, Begis had to get permission from two distinct

governmental entities. He needed to get a building permit from the Snohomish

County Department of Planning and Development Services ("County Planning").

County Planning administers the Snohomish County Unified Development Code,

Title 30 of the Snohomish County Code (SCC). When application is made for

construction on a parcel of land not served by a public sanitary sewer system,

County Planning may not issue a building permit "without prior approval from the

Snohomish Health District of an approved means of waste disposal." SCC

30.50.104(2). Because lot 36 is not served by a public sewer, Begis also needed

an approval from the Snohomish Health District, an independent special purpose

district. The Health District regulates location, design, operation, maintenance,

and monitoring of onsite sewage systems in the county under rules adopted by

the State Board of Health. RCW 43.20.050(3); WAC 246-272A-0001(2); see

Snohomish Health District Sanitary Code chs. 8.1, 8.5, 8.6.

       On August 11, 2014, Begis applied to the Health District for an onsite

sewage disposal permit. Clerk's Papers at 236. Begis applied for a permit for

what is referred to as an "onsite" system even though the drain field was, in a
No. 74528-0-1/4


sense, offsite; that is, it was not going to be on lot 36 with the residence.1 As

would later become clear in the course of the Health District's review, see Clerk's

Papers at 411-13, 426, 453, the application proposed to pipe the septic effluent

down the street, across an easement over a neighbor's property, and downhill to

two vacant lots Begis owns on the blufffacing west. These hillside lots are

numbered 60 and 61. They are located above the north-south line of tracks for

respondent Burlington Northern Santa Fe Railroad and homes on the west side

of Possession Lane.

       On December 2, 2014, Begis applied to County Planning for a building

permit to build the residence on lot 36. Clerk's Papers at 691. The building

permit application did not mention lots 60 and 61. And it did not mention the plan

for building a septic drain field on the hillside below the residence.

       On the same date, Begis applied to County Planning for a land disturbing

activity permit for the construction of the residence on lot 36. Clerk's Papers at

222. The reason for this application was that County Planning, in addition to

being in charge of issuing building permits under SCC 30.50.104, has additional

responsibilities under two other chapters: Land Disturbing Activity, chapter

30.63B SCC, and Geologically Hazardous Areas, chapter 30.62B SCC. These

are among the ordinances the county enacted to fulfill the mandate of the Growth

Management Act, chapter 36.70A RCW, for the adoption of development

regulations to protect critical areas, which include geologically hazardous areas.

       1An onsite sewage system means "an integrated system of components,
located on or nearby the property it serves, that conveys, stores, treats, and/or
provides subsurface soil treatment and dispersal of sewage." WAC 246-272A-
0010(2) (emphasis added).
No. 74528-0-1/5


RCW 36.70A.060(2); RCW 36.70A.030(5); SCC 30.10.080. Before the

commencement of any nonexempt land disturbing activity as defined in SCC

30.91 L.025, a land disturbing activity permit must be obtained from County

Planning. SCC 30.63B.030. A land disturbing activity permit will not be issued

unless there has been review under the State Environmental Policy Act, chapter

43.21C RCW, if applicable. SCC 30.63B.050(1)(g). In geologically hazardous

areas, including landslide hazard areas, development activity may not occur

without permission from County Planning, conditioned on submission of a site

development plan, a geotechnical report, and approval of a critical area site plan.

SCC30.62B.130, .140, .160.

       The application for a land disturbing activity permit had a number linking it

to the building permit application for lot 36. The application described the project

as a single family residence on lot 36 with an "off site septic system." It did not

mention lots 60 and 61 as the proposed location for the septic system. Clerk's

Papers at 222. Begis did not separately apply for a land disturbing activity permit

for lots 60 and 61, even though he planned to use them as the site of the drain

field for the sewage system.

       Lot 36 was designated as a critical area because of its proximity to steep

slopes. Clerk's Papers at 230. See SCC 30.91 C.340(5)(b). County Planning

reviewed the drainage plan and storm water site plan and required submission of

a critical area site plan. See generally SCC 30.62B.030-.160. Comments by

County Planning were concerned solely with lot 36. Clerk's Papers at 230.

Presumably, the same review would have been conducted for lots 60 and 61 if
No. 74528-0-1/6


an application had been submitted for those lots. With slopes greater than 33

percent, lots 60 and 61 are also in an area designated as a critical area because

of the history and risk of landslide hazard. Clerk's Papers at 293, 296, 453.

       On December 15, 2014, the Health District disapproved the application for

an onsite sewage disposal permit, noting that the area along Possession Lane

had been subject to previous landslides. The Health District required Begis to

submit an engineering report with "technical reasoning explaining how stability of

the land in the proposed primary and reserve sewage disposal areas" would

meet the requirements of State Board of Health regulations for location of onsite

sewage systems, WAC 246-272A-0210. Clerk's Papers at 242.

       On January 7, 2015, Begis submitted a geotechnical report from engineer

Peter Chopelas in response to the Health District's concerns. The summary of

the report stated that the stability of the building site would not be affected by the

addition of a septic system on the bluff. Clerk's Papers at 451.

       On January 29, 2015, the Health District again disapproved the

application, requesting a geotechnical report specific to lots 60 and 61. Clerk's

Papers at 453.

       On February 3, 2015, Chopelas submitted a more detailed engineering

report. Clerk's Papers at 455-56.

       On February 23, 2015, the Health District approved the application for an

onsite sewage disposal permit. Clerk's Papers at 682-88. Under SCC

30.50.104(2), the Health District's approval cleared the way for County Planning

to issue a building permit for the residence on lot 36.
No. 74528-0-1/7


       On February 24, 2015, County Planning issued a building permit for the

residence on lot 36 and a land disturbing activity permit for lot 36 for "Clearing,

grading and Targeted Drainage Plan" for the proposed single family residence.

Clerk's Papers at 690, 233. Neither of these permits mentioned lots 60 and 61.

       On March 17, 2015, Randolph Sleight, chief engineering officer for County

Planning, sent Begis a stop work order noting "ongoing issues" relating to the

clearing and grading of lot 36 beyond the limits of the land disturbing activity

permit. The letter required Begis to stabilize the site and stop work pending drier

weather and closer inspection. "If the applicant does not comply, the County will

initiate revocation of your permits per SCC 30.85.310." Clerk's Papers at 245-46.

At the request of County Planning, a peer review of Chopelas' geotechnical

report was conducted, but only with respect to lot 36. Clerk's Papers at 170.

       On April 23, 2015, County Planning lifted the stop work order. Clerk's

Papers at 248.

       On June 11, 2015, the Health District gave Begis an installation permit for

the previously approved sewage disposal system. Clerk's Papers at 463. To

proceed with the installation, Begis hired a contractor to grade lots 60 and 61 for

use as the drain field.

       On June 29, 2015, William Hultman of the consulting firm of Shannon &

Wilson Inc. wrote to County Planning and the Health District with concerns about

the construction of the drain field on lots 60 and 61. Shannon & Wilson had been

hired by the railroad to do a geotechnical review and to critique the engineering

reports submitted by Chopelas. Hultman asserted that the Chopelas reports
No. 74528-0-1/8


mischaracterized the geology of the site, failed to account for the presence of

groundwater, recommended an alignment for piping the effluent downhill that

risked introducing additional water into a known landslide hazard area, and used

unsound engineering methods. Hultman stated the firm's opinion that the

proposed construction of the drain field on the hillside above the tracks would

possibly expose the railroad and the travelling public to added slope stability

hazards "during construction and over the service life of the installation." Clerk's

Papers at 164-71.

       On July 6, 2015, attorneys for the railroad wrote to County Planning and

the Health District to inform them that within the past week, groundwater had

been seen flowing down the slope from where the contractor was drilling the path

for the pipeline to the drain field. The letter enclosed a field report by Shannon &

Wilson documenting the groundwater seepage. The report stated, "It is likelythat

the drillhole intercepted a groundwater-bearing layer in the slope." Clerk's

Papers at 177-78.2

       On July 14, 2015, County Planning posted a stop work order on lots 60

and 61 "for altering drainage." The complaint investigation report notes,

"Seepage coming from site and a ditch was dug across road and onto BNSF

property." Clerk's Papers at 220.

       On July 20, 2015, County Planning issued a notice of violation directed to

Begis. The notice stated that land disturbing activity on lots 60 and 61 had


      2 The grading contractor later admitted to County Planning that he struck
an underground spring and dug a ditch to divert the flow onto a private road.
Clerk's Papers at 262.

                                          8
No. 74528-0-1/9


occurred without a permit. See SCC 30.63B.030. "The land disturbing activity

involved the alteration of a natural drainage course and grading within a critical

area." The suggested corrective actions included obtaining a land disturbing

activity permit. Clerk's Papers at 251.

       On July 22, 2015, Sleight informed Begis that the diversion of the flow into

the ditch was unacceptable. A land disturbing activity permit for the work being

done on lots 60 and 61 was necessary, and it would have to be supported by an

alternative drainage plan. Sleight's letter stated, "No additional work is allowed

or authorized on this site until a land disturbing activity permit has been approved

by the County." Clerk's Papers at 254-55.

      Also on July 22, 2015, an attorney for the county sent a letter to appellants

acknowledging receipt of the June 29 and July 6 correspondence. The letter

advised that concerns regarding the approved sewage system should be

specifically directed to the Health District because it was the issuing agency. The

letter stated, "On July 14, 2015, the County issued a stop work order for

additional work in the area separate and distinct from the OSS [onsite sewage

system] concerning Land Disturbing Activity without the necessary permits and

approvals. The County is following its standard procedures to address that

matter." Clerk's Papers at 189.

       On August 5, 2015, Begis applied for a land disturbing activity permit for

lots 60 and 61. The application was separate from the earlier application

pertaining to lot 36. The project was to "add a drainage culvert for run-off control
No. 74528-0-1/10


on Possession Lane to catch seepage and convey it to existing catch basin."

Clerk's Papers at 265-66.

       On August 12, 2015, appellants wrote to the county and the Health

District, noting the absence of any documented review of lots 60 and 61 for land

disturbing activity and development in critical areas. They asserted that County

Planning—not the Health District—was responsible for conducting that review.

Their letter claimed that despite the stop work order posted on July 14, Begis

was still clearing brush and drilling perk test holes on the hillside lots as recently

as August 11 and there was a continuing discharge of turbid water and sediment

water from the previously drilled hole. Clerk's Papers at 159.

       On the same date, Sleight wrote to Begis that the grading and seepage on

lots 60 and 61 was a violation that had to be resolved by restoration before a

certificate of occupancy could be issued for the residence, and he reiterated that

a land disturbing activity permit was required. Sleight informed Begis that the

Shannon & Wilson report had raised "concerns regarding the location of the

proposed drainfield on Lots 60 and 61." His letter stated that the county did not

issue or approve permits for this work and deferred to the Health District for

review and next steps in addressing the concerns raised by Shannon &Wilson.

Clerk's Papers at 274.

       On August 18, 2015, Chopelas reported to County Planning that adding a

culvert would solve the problem of surface drainage and "no drainage

modification approval should be necessary." Clerk's Papers at 277.




                                          10
No. 74528-0-1/11


        On September 4, 2015, County Planning wrote to Begis stating that

approval of the drainage modification could not be recommended due to

insufficient information. Clerk's Papers at 283.

        On September 8, 2015, Begis responded to County Planning by e-mail

concerning his application for a land disturbing activity permit for work on lots 60

and 61. His message stated, "The seepage is permanently stopped. So, we will

not be needing this permit, and, I am withdrawing the application." Clerk's

Papers at 283.

        On September 9, County Planning made the following entry into its case

activity log:

       • Begis is taking out the pipe and filling in the ditch with dirt
       • No permit will be required
       • No water is discharging through the area
        •   The leak has been located and corrected

Clerk's Papers at 260.

        That same day, County Planning closed its case file on the enforcement

action.3

        On September 17, 2015, the Health District asked County Planning to

confirm that the stop work order and notice of violation had been remedied. A

County Planning manager responded that the grading code violation and stop

work order "are being addressed and are not viewed as related to the final

inspection of the building permit." The Health District pressed for assurance that


       3 The date of case closure is listed as September 9, 2015, in a summary of
the enforcement action initiated by the stop work order on July 14, 2015. Clerk's
Papers at 291. The case activity log lists the date of case closure as September
11, 2015. Clerk's Papers at 260. For purposes of this appeal, we assume the
closure occurred on September 9.
                                          11
No. 74528-0-1/12


the notice of violation had been resolved because the outcome might affect the

Health District's final review of the sewage system as built. The County Planning

manager replied, "It doesn't matter, the drainfield is a separate issue. However,

it's my understanding that the stop work has been resolved through restoration."

Clerk's Papers at 286-87 (e-mail correspondence). The Health District inspected

the site and gave final approval of the installation of the sewage disposal system

on September 18, 2015. Clerk's Papers at 400, 402, 463.

       On September 22, 2015, County Planning made a final inspection of the

work done under the building permit for lot 36. The final inspection approval

constituted a certificate of occupancy for the residential structure. Clerk's Papers

at 469-70.

       On September 25, 2015, Begis sold the completed home to respondents

Kee Bong Kim and Diana Yong. Clerk's Papers at 389.

       On September 30, 2015, the present action was filed against the county,

the Health District, Begis, and new homeowners Kim and Yong. The plaintiffs

are the railroad and neighboring homeowners. Some own property on

Possession Lane below lots 60 and 61, and some own property on Marine View

Drive that rely on lots 60 and 61 for lateral and subjacent support. Among other

things, their amended complaint alleges that County Planning failed to assure

that the construction of the sewage system drain field on lots 60 and 61 complied

with the county's land disturbing activity code and critical areas ordinances.

According to the complaint, the county improperly deferred enforcement to the

Health District.




                                         12
No. 74528-0-1/13


       The complaint seeks various forms of relief, including review under the

Land Use Petition Act (LUPA), chapter 36.70C RCW. The complaint asks the

court to enjoin the homeowners from using the sewage system and to prohibit

County Planning and the Health District from issuing further approvals in the

absence of proper review.

       On October 7, 2015, the plaintiffs moved for an order to show cause why

writs of review, mandamus, and prohibition should not be issued.

       On October 28, 2015, the county filed an answer admitting that it did not

perform any "permitting review" relating to the location of the sewage system on

lots 60 and 61. The county's answer asserted that it did not have to perform

such review because the Health District had exclusive authority to approve

applications for the design and installation of onsite sewage systems. Clerk's

Papers at 663-65. The Health District filed an answer stating that the county had

the exclusive responsibility for reviews required by the critical areas ordinances.

Clerk's Papers at 638.

       In November 2015, the defendants moved to dismiss the complaint as an

untimely land use petition. The parties filed briefs.

       On December 2, 2015, after a hearing, the court entered a written order

granting the motion to dismiss. The court concluded that LUPA provided an

adequate remedy at law for all stated causes of action and the complaint was

untimely because it was filed months after the 21-day deadline expired for

challenging the building permit under LUPA.




                                         13
No. 74528-0-1/14


       This appeal followed. Denial of a motion to dismiss a LUPA action is

reviewed de novo. Durland v. San Juan County. 175 Wash. App. 316, 320, 305
P.3d 246 (2013), affd, 182 Wash. 2d 55, 340 P.3d 191 (2014).

                                   DISCUSSION

      A land use petition is timely if it is filed within 21 days "of the issuance of

the land use decision." RCW 36.70C.040(3)(2). This deadline is "stringent."

Asche v. Bloomguist. 132 Wash. App. 784, 795, 133 P.3d 475 (2006), review

denied, 159 Wash. 2d 1005 (2007). It reflects a strong public policy of finality in

land use decisions. Samuel's Furniture. 147 Wash. 2d at 458-59. Even illegal land

use decisions will be allowed to stand if not timely challenged under LUPA.

Habitat Watch v. Skagit County. 155 Wash. 2d 397, 407, 120 P.3d 56 (2005).

      "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 on

three different types of decisions. RCW 36.70C.020(2).4 A land use decision



      4 (2) "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 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,
                                         14
No. 74528-0-1/15


should memorialize the terms of the decision, not simply refer to them, in "some

tangible, accessible way" so that a diligent citizen may "know whether the

decision is objectionable or, if it is, whether there is a viable basis for a

challenge." Vogel v. City of Richland. 161 Wash. App. 770, 780, 255 P.3d 805

(2011); see ajso Durland v. San Juan County. 174 Wash. App. 1, 13, 298 P.3d 757

(2012).

          The building permit did not memorialize in a tangible, accessible way any

terms controlling development on lots 60 and 61. A diligent citizen who

examined the building permit and the land disturbing activity permit issued on

February 24, 2015, would have learned only about the construction proposed for

lot 36.


          Respondents nevertheless contend the complaint is a belated challenge to

the issuance of the building permit. The building permit was issued for lot 36 on

February 24, 2015, after the Health District approved the design and location of

the onsite sewage system. Respondents contend the issuance of the building

permit was a "determination by inference" that Begis could build the residence

without further reviews and permits. They argue that if the railroad and

homeowners believed review under the code provisions for land disturbing

activity and critical areas was legally required, they had to bring a LUPA petition

within 21 days of the building permit issuance. They say under Samuel's

Furniture, another case involving government entities with overlapping regulatory


          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.

                                            15
No. 74528-0-1/16


responsibilities, the building permit implied that Begis had been cleared to grade

lots 60 and 61.

       In Samuel's Furniture, the city of Ferndale determined that a furniture

business did not require a shoreline permit to expand for expansion of its store

because the project was outside the designated shoreline area. Samuel's

Furniture, 147 Wash. 2d at 444. Ferndale issued a building permit and a fill and

grade permit. Samuel's Furniture, 147 Wash. 2d at 445. A year later, when the

project was already under construction, the Department of Ecology used a

different map and concluded the project was inside the designated shoreline

area. The Department of Ecology threatened enforcement action unless the

business obtained a permit for substantial development on a shoreline. Samuel's

Furniture, 147 Wash. 2d at 445. The Supreme Court held that the Department of

Ecology, having failed to challenge Ferndale's permitting decision by means of a

timely LUPA petition, was barred from collaterally attacking the decision by

means of an independent enforcement action. Samuel's Furniture, 147 Wash. 2d at

463.


       The City's issuance of the fill and grade and building permits
       necessarily required a determination that the project was outside
       the shoreline jurisdiction. . .. Ecology could have challenged the
       issuance of those permits on the basis that they are inconsistent
       with the SMA [Shoreline Management Act of 1974] because no
       substantial development permit was issued.

Samuel's Furniture, 147 Wash. 2d at 451; see also Twin Bridge Marine Park, LLC v.

Dep't of Ecology, 162 Wash. 2d 825, 829, 175 P.3d 1050 (2008).

       County Planning could not have issued the building permit without the

Health District's prior approval of the sewage system. The respondents thus


                                        16
No. 74528-0-1/17


argue that the building permit necessarily required a preliminary determination

that the plan to grade lots 60 and 61 had been fully reviewed for compliance with

regulations having any relationship to the sewage system, in the same way that

the Ferndale permits in Samuel's Furniture necessarily required Ferndale to

make a preliminary determination that the project was not on the shoreline. They

contend the appellants' request for revocation of the building permit pending

further environmental review is an untimely collateral attack on the building

permit.

          The analogy to Samuel's Furniture is unsound. The issuance of a building

permit did not necessarily require County Planning to make a preliminary

decision approving grading for the drain field on lots 60 and 61. No ordinance or

statute requires such preliminary approval. Begis did not file an application for a

land disturbing activity permit to grade lots 60 and 61 or otherwise seek approval

from County Planning before beginning the grading.

      The Health District's approval of the onsite sewage system is not a

substitute for County Planning's ongoing duty to enforce the critical areas

ordinances when a sewage system is installed in a landslide hazard area. Unlike

in Samuel's Furniture, the two regulatory agencies—County Planning and the

Health District—did not have the same decision to make and did not have

regulatory authority over the same activities. They operate under different

governing statutes with different purposes. As the Health District describes its

mission, the focus "is directed to effective treatment of sewage effluent from a

public health perspective." The Health District's review of the design and location



                                         17
No. 74528-0-1/18


of an onsite sewage system is concerned to some degree with the potential for

erosion, WAC 246-272A-0220. But the Health District is not charged with

deciding whether grading a hillside for a drain field is permitted under the

Snohomish County Code. The Health District does not enforce the county code

provisions designed to prevent landslides.

       The record reflects the two agencies' understanding that they have

different responsibilities. The county's letter of July 22, 2015, characterized the

stop work order as related to "additional work in the area separate and distinct"

from the onsite sewage system. The county's final correspondence with the

Health District took pains to characterize the stop work order and notice of

violation as unrelated to the Health District's approval of the sewage system.

The Health District's answer to the complaint states that the responsibility for

enforcing the county code in critical areas is exclusively the county's.

       The county argues in part that regulations for onsite sewage systems

preempt the county from enforcing its own ordinances. The Health District

disagrees with the county on this point, Clerk's Papers at 645, and rightly so.

The statute authorizing the Board of Health regulations, RCW 43.20.050, is

concerned with the appropriate design and construction of onsite sewage

systems. It contains no preemptive language negating a county's ability to

concurrently enforce ordinances protecting slope stability.

       The building permit stated on its face that "all activity authorized by this

permit shall comply with chapters 30.63A and 30.63B SCC," the county code

provisions governing drainage and land disturbing activity. Clerk's Papers at


                                          18
No. 74528-0-1/19


690. This language speaks to future activity, after the building permit is issued.

Thus, County Planning's issuance of the building permit for lot 36 did not imply a

final decision not to review grading activity on lots 60 and 61 under the county

critical areas ordinances. Begis was not entitled to assume that the building

permit cleared him to grade lots 60 and 61 without a land disturbing activity

permit.

          County Planning's issuance of the building permit for lot 36 also did not

imply the completion of the enforcement actions the county would later

undertake. In March 2015, County Planning issued a stop work order when

Begis exceeded the limits of the land disturbing activity permit for clearing on lot

36 and threatened to revoke the building permit. In July 2015, County Planning

posted a stop work order in response to the seepage coming from lots 60 and 61.

In August 2015, County Planning threatened to withhold the occupancy permit

unless Begis obtained a land disturbing activity permit for the grading on these

lots. The building permit issued on February 24, 2015, could not have been a

final land use decision as to these later enforcement actions.

          When the seepage was observed in July 2015, County Planning readily

recognized its independent responsibility to protect the hillside. Sleight directed

Begis to apply to County Planning—not to the Health District—for a land

disturbing activity permit for the restoration work being done on lots 60 and 61.5



       5 On August 6, 2015, Sleight documented a phone call from the grading
contractor:
       He acknowledged that he had done the temporary diversion of
       drainage that was coming from his drilling excavation work ....


                                           19
No. 74528-0-1/20


Sleight recognized that the installation of the sewage system, though permitted

by the Health District, also needed a permit from County Planning because it was

being done in a critical area and it threatened the stability of the hillside. It is

unclear why County Planning decided in September 2015 that a permit was not

required.

       We reject the respondents' argument that the complaint is an implied

challenge to or a belated collateral attack on the building permit. The building

permit was for lot 36. It did not memorialize or imply a decision that permits and

review under the land disturbing activity and critical areas ordinances was

unnecessary for work done on lots 60 and 61. Insofar as the building permit had

any relationship to lots 60 and 61, the most it may have implied is that the design

and location of the onsite sewage system satisfied State Board of Health rules

that are primarily concerned with the effective treatment of effluent.



               . . . clearly he must have tapped a shallow perched aquifer
       or water table at the top of the bluff and redirected it down over the
       bank via his drilling operation.. . .
               I asked him how he would feel if someone piped water
       directly onto his property and he agreed that this was not right....
               I asked why he diverted the flows onto the neighbor and he
       said that was a better place than going down the driveway. . . .
               I then told him that this violation is a potentially very serious
       problem which he may have made worse and that being the overall
       stability of the hillside and that he and Mr. Begis were responsible
       to correct the violations that had occurred.. . .
               He closed the conversation by indicating he would be trying
       to find and stop the migration of water at its source and thus
       relieve the flow going into the temporary pipe and restore the
       ground and remove the pipe. I told him even this work would
       require a permit... since all the work that he was describing was
       in a critical area.
Clerk's Papers at 262.

                                           20
No. 74528-0-1/21


       A building permit is one type of land use decision. RCW

36.70C.020(2)(a). It is not the only type. A land use decision may also be a final

determination on "the enforcement by a local jurisdiction of ordinances regulating

the improvement, development, modification, maintenance, or use of real

property." RCW 36.70C.020(2)(c). A final determination is one which leaves

nothing open to further dispute and which sets at rest the cause of action

between parties. Samuel's Furniture, 147 Wash. 2d at 452.

       The complaint seeks review of the county's decision that Begis did not

have to obtain a permit to grade lots 60 and 61. This was a "land use decision"

concerning enforcement. RCW 36.70C.020(2)(c). It did not become final with

the issuance of the building permit because the potential for enforcement of the

county code on lots 60 and 61 continued to exist after the issuance of the

building permit.

       County Planning closed its enforcement file on September 9, 2015, with

the decision that "no permit will be required." County Planning certified the

building for occupancy on September 22, 2015. These were County Planning's

final determinations that the county was finished with enforcement of land

disturbing activity and critical area ordinances on lots 60 and 61. Until these

decisions were made, it was open to further dispute whether County Planning

would require Begis to apply for a permit and submit to a rigorous geotechnical

review such as County Planning conducted for lot 36.

       Because the present action was filed on September 30, 2015, it was within

the 21-day deadline. It was timely and should not have been dismissed.



                                        21
No. 74528-0-1/22


       Whether the county code requires further review and permitting for lots 60

and 61 is an issue yet to be resolved on the merits. Our only holding is that the

complaint should not have been dismissed as untimely. On remand, all causes

of action in the complaint will be subject to resolution by the trial court.

       Begis contends that even if the order of dismissal is reversed as to the

other respondents, it should be affirmed as to him and his company because

they retained no interest in the property and the complaint seeks no relief from

them. We reject this argument. Applicants as well as owners are necessary

parties to an action under LUPA. RCW 36.70C.040(2).

       The order of dismissal is reversed and remanded for reinstatement of the

complaint and further proceedings not inconsistent with this opinion.



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WE CONCUR:




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