People waiting to know whether the King County shoreline master program (“SMP”) properly applies with the Burien city limits shouldn’t hold their breath. That is because the Court of Appeals recently held that the petitioners in Patterson v. Segale lacked standing under the APA to challenge Burien’s decision that the King County SMP continues to apply to areas within the city limits following Burien’s incorporation in 1993. After the petitioners settled their underlying dispute with a neighbor about the terms of a development permit issued in accordance with the King County SMP, they no longer could establish any concrete injury resulting from Burien’s decision that could be redressed by a favorable court ruling.
Diane Patterson and David Engdahl owned beachfront property and believed that a construction project to replace the bulkhead on a neighbor’s property would “impair their aesthetic enjoyment of the shoreline near their residence.” Burien determined that King County’s SMP applied within its city limits and issued a development permit for the bulkhead. Patterson and Engdahl appealed from that decision, first to the Shoreline Hearings Board and then to the King County Superior Court. Burien and the neighbor prevailed in each appeal.
While Patterson and Engdahl’s appeal was pending before the Court of Appeals, they settled with their neighbor but not with Burien. Patterson and Engdahl subsequently moved to limit the scope of appellate review to a declaratory judgment on whether the King County SMP applies within the Burien city limits. The court’s commissioner granted that motion. Burien, in turn, filed a motion for dismissal on the ground that the case was now moot or, in the alternative, that declaratory relief was unavailable. In a procedural decision that Patterson and Engdahl likely would come to regret – as explained below – the Court reserved the question of whether declaratory relief was available and denied Burien’s motion regarding mootness because Burien had requested attorney fees as a prevailing party.
The Court of Appeals then affirmed.
Before considering the merits of Patterson and Engdahl’s appeal, the Court raised the threshold question whether Patterson and Engdahl even had standing under the APA, RCW 34.05, to challenge Burien’s decision concerning the King County SMP. As the Court explained, a party’s standing to participate in an administrative proceeding “is not necessarily coextensive with standing to challenge an administrative decision in a court.” Under the APA, only a person who “is aggrieved or adversely affected” by agency action has standing to seek judicial review of such action. Further, a person is “aggrieved or adversely affected” only when such person falls within the zone of interest of the particular agency decision and when the person has suffered an injury-in-fact, i.e., “[t]he agency action has prejudiced or is likely to prejudice that person . . . [and] [a] judgment in favor of that person would substantially eliminate or redress the prejudice to that person.” RCW 34.05.530.
Applying those principles, the Court concluded that Patterson and Engdahl had no standing to challenge the general decision that the King County SMP applies within the Burien city limits because that decision, by itself, neither prejudiced or likely would prejudice Patterson and Engdahl. At best, Patterson and Engdahl could assert that they might be harmed by a future permitting decision based on the King County SMP. A vague or conjectural assertion of potential future harm is in sufficient to establish injury necessary for standing.
After rejecting Patterson and Engdahl’s challenge to the application of the King County SMP rejected for lack of standing, the Court then ruled that Burien is entitled to an award of attorney fees as the prevailing on party on appeal under RCW 4.84.370(2), which provides that a city may recover fees when a permitting decision is upheld by the superior court and then on appeal.
Two aspects of this opinion bear comment. First, if there is an arguable basis to recover fees, request such fees and state the basis for such an award. Second, the Court of Appeals in recent years has paid special attention, even sua sponte, to standing, jurisdiction, and justiciability. See, e.g., http://www.noticeofappeallawblog.com/2012/10/25/appellate-update-ralph-v-dept-of-natural-resources-wash-app-nos-67515-0-i-67704-7-i/, 286 P.3d 992 (2012) (subject matter jurisdiction); Bloome v. Haverly, 154 Wn. App. 129, 225 P.3d 330 (2010). Although standing and jurisdictional issues are more commonly raised in federal court, counsel and parties should take care to review these threshold questions at each stage of litigation – especially in declaratory judgment actions.