Opinion Information Sheet

			

      IN THE SUPREME COURT OF THE STATE OF WASHINGTON

SCOTT E. STAFNE, a single man,                )
                                              )     No. 84894-7
                      Respondent and          )
                      Cross Petitioner,       )
                                              )
       v.                                     )     En Banc
                                              )
SNOHOMISH COUNTY and                          )
SNOHOMISH COUNTY PLANNING )
DEPARTMENT and TROY                           )
HOLBROOK, in his position as a                )
Snohomish County Planner,                     )
                                              )
                      Petitioners and         )
                      Cross Respondents. )
______________________________                )     Filed March 8, 2012

       C. JOHNSON, J. -- This case involves whether a landowner seeking review 

of a county's decision not to adopt a proposed comprehensive plan amendment must 

appeal to the growth management hearings board (growth board) before seeking a 

remedy in superior court. This case also involves whether a party is entitled to a 

constitutional writ of certiorari or declaratory relief under the circumstances of this 

case.  

Cause No. 84894-7

       The superior court granted Snohomish County's motion to dismiss Scott 

Stafne's land use petition and complaint. The Court of Appeals held that based on 

its conclusion that appeal to the growth board would be futile, the complaint was 

properly filed in superior court under the Land Use Petition Act (LUPA), chapter 

36.70C of the Revised Code of Washington (RCW) but affirmed the dismissal on 

other grounds. Both parties were granted review. We affirm, but hold that decisions 

related to amendment of comprehensive plans must be appealed to the growth board 

under the procedures provided for in the Growth Management Act (GMA), chapter 

36.70A RCW, and failure to do so precludes superior court review. We also hold 

that a constitutional writ and declaratory relief are unavailable under the 

circumstances of this case.

                                           FACTS

       Scott Stafne, the petitioner and attorney acting pro se throughout most of 

these proceedings, owns a 20-acre lot in Twin Falls Estates, an area currently 

designated under Snohomish County's comprehensive plan as low density rural 

residential. Stafne bought a section of land adjacent to his property from the 

Department of Natural Resources (DNR) that was designated under the plan as 

commercial forest land (CFL) and forest transition area (FTA), which is at issue in 

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Cause No. 84894-7

this case.

       Stafne sought and had been granted a boundary line adjustment allowing him 

to incorporate the newly acquired land onto his existing lot, though the acquired 

land retained its CFL and FTA status. In October 2007, Stafne submitted a docket 

proposal to the Snohomish County Council (Council) requesting the Council 

legislatively amend the County's comprehensive plan to redesignate the CFL and 

FTA portions of his property to low density rural residential. Stafne has generally 

maintained that his acquired land should be redesignated because the land, which is 

characterized by streams, wetlands, and very steep slopes, could not be considered 
"forest land" under the GMA.1 Snohomish County considers such docket proposals 

annually. Snohomish County Code (SCC) 30.74.015; RCW 36.70A.130(2)(a). 

       Stafne addressed the Council at the June 9, 2008, public hearing, arguing that 

under the statute, his acquired land should not be designated forest land and 

requested that the comprehensive plan be amended. He pointed out that the land had 

been acquired from DNR because DNR had determined the land was not 

appropriate for commercial logging. Stafne also argued the County's planning 

       1 RCW 36.70A.030(8), in relevant part, defines "'[f]orest land'" as "land primarily 
devoted to growing trees for long-term commercial timber production on land that can be
economically and practically managed for such production." 

                                               3 

Cause No. 84894-7

department, which conducts the initial review and evaluation of docket proposals 

pursuant to SCC 30.74.030, erroneously relied on a previous definition of "forest 

land" when evaluating his proposal. On June 16, the Council adopted "Amended 

Motion No. 08-238," approving the final list of proposals it decided to consider. 

The Council decided not to place Stafne's proposal on the final docket. Stafne did 

not appeal the Council's decision not to adopt his proposed amendment to the 

growth board. 

       Instead, on July 18, 2008, Stafne filed a complaint and a land use petition in 

superior court. He later amended his complaint to include requests for a statutory 

writ of review, writ of mandamus, writ of prohibition, or a constitutional writ of 

certiorari. He also sought a declaratory judgment that the land he acquired from 

DNR did not meet the definition of "forest land" under the GMA, and thus, could 

not be designated CFL as a matter of law. 

       The County moved to dismiss Stafne's lawsuit (1) under Civil Rule (CR) 

12(b)(6), arguing that the decision to amend a comprehensive plan is a legislative 

act and the courts have no power to grant legislative relief, and (2) under CR 

12(b)(1), arguing that petitions alleging GMA noncompliance must be appealed to 

the growth board before the superior court can have subject matter jurisdiction. 

                                               4 

Cause No. 84894-7

Stafne filed a cross motion for partial summary judgment on his declaratory 

judgment action. The superior court granted the County's motion to dismiss and 

denied Stafne's motion. 

       Stafne appealed. The Court of Appeals affirmed but held that Stafne was not 

required to exhaust administrative remedies by seeking review at the growth board 

because such review would be futile, and as a result, LUPA was his exclusive 

means to obtain review in superior court. Nevertheless, the court held that Stafne's

land use petition was untimely and affirmed the trial court. Further, the court held 

that the trial court did not err in denying Stafne's request for writ of mandamus or 

prohibition and that Stafne was not entitled to declaratory judgment on summary 

judgment because LUPA was an adequate alternative remedy. Stafne v. Snohomish 

County, 156 Wn. App. 667, 234 P.3d 225 (2010).

       Both parties sought this court's review. Both petitions were granted under 

limited review. Stafne v. Snohomish County, 171 Wn.2d 1008, 249 P.3d 183 

(2011).

                                           ISSUES

1.     Whether a jurisdiction's decision related to a comprehensive plan amendment 
       must be appealed to the growth board under the GMA or whether relief can 
       be sought in superior court under LUPA.

2.     Whether a superior court has jurisdiction to review such decisions under its 

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Cause No. 84894-7

       constitutional writ authority.

3.     Whether Stafne is entitled to declaratory judgment as to the legal 
       consequences of the County's boundary line adjustment, specifically the CFL 
       and FTA designation of the incorporated land.

                                         ANALYSIS

       As mentioned, we granted both parties' petitions for review. We begin our 

analysis with the issues raised by the County, because if we agree with the County, 

Stafne's arguments will necessarily fail. Though the County agrees with the result 

the Court of Appeals ultimately reached, it generally disagrees with two sections of 

the court's analysis. First, the County disagrees with the court's conclusion that a 

legislative decision not to adopt a proposed comprehensive plan amendment can 

qualify as a "land use decision" appealable under LUPA. The County contends that 

this conclusion disregards the express statutory provisions and conflicts with the 

Court of Appeals, Division Three's decision in Coffey v. City of Walla Walla, 145 

Wn. App. 435, 187 P.3d 272 (2008), which held that a superior court has no 

jurisdiction to review comprehensive plan decisions under LUPA. Second, the 

County disagrees with the court's discussion of the growth board's jurisdiction and 

conclusion that Stafne was excused from appealing to the growth board because 

review there would have been futile.2 The County argues that this conclusion is in 

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Cause No. 84894-7

tension with our decision in Torrance v. King County, 136 Wn.2d 783, 966 P.2d 

891 (1998), where we held that decisions related to comprehensive plans must be 

appealed to the growth board first pursuant to the procedures in the GMA.

       At the outset, it is crucial to recognize that the GMA and LUPA are separate 

and distinct statutory schemes, with each containing expressly different review 

procedures. Generally, under the GMA, counties and cities required or choosing to 

plan under the act must each maintain a comprehensive plan, a generalized 

coordinated land use policy statement. RCW 36.70A.030(4). The comprehensive 

plan must include maps and "descriptive text covering objectives, principles, and 

standards used to develop the comprehensive plan." RCW 36.70A.070. These maps 

can include a future land use map depicting how property is designated in the 

jurisdiction; the designations guide how property may thereafter be zoned by the 

jurisdiction.

       Comprehensive plans are subject to continuing review and evaluation. Plans

are amended by legislative action according to the schedules provided in RCW 

36.70A.130. As part of this review process, counties and cities are required to 

       2 The Washington Association of Prosecuting Attorneys and Washington State
Association of Municipal Attorneys each filed amicus curiae briefs in support of the County's 
position.

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Cause No. 84894-7

establish procedures for the public to annually suggest updates, proposed 

amendments, and revisions to the jurisdiction's comprehensive plan. RCW 

36.70A.470(2). To comply, Snohomish County adopted the procedure codified in 

chapter 30.74 of the SCC. The participation program is known as "docketing." To 

ensure the cumulative effect of all the docket proposals is ascertained, the Council 

must consider all proposed amendments in a single public hearing. RCW 

36.70A.130(2)(b). Following the hearing, the Council determines which proposals, 

if any, will be added to the final docket for comprehensive plan amendments. 

Amendments are adopted by resolution or ordinance. RCW 36.70A.130(1)(b). This 

case involves the Council's decision not to adopt Stafne's proposed amendment. 

       The legislature established in the GMA an administrative appeal process to 

resolve GMA noncompliance allegations, including that a local government's 

comprehensive plan is noncompliant. Under the GMA, such allegations must be 

filed with the growth board first. RCW 36.70A.250-.345. Unless otherwise 

specified in the GMA, the Washington Administrative Procedure Act (APA) chapter 

34.05 RCW, governs the practice and procedure of the board. RCW 36.70A.270(7). 

Under the GMA, the board considers petitions alleging, among other things, that a 

local government's plans, regulations, or amendments do not comply with the act. 

                                               8 

Cause No. 84894-7

RCW 36.70A.280(1)(a). The board has interpreted its statutory authority, at a 

minimum, as extending to review of comprehensive plans and amendments adopted 

by state or local governments. However, the board has held that it "lacks 

jurisdiction" to review decisions not to adopt proposed amendments. See SR 9/US 2 

LLC v. Snohomish County, No. 08-3-0004, at 4 (Cent. Puget Sound Growth Mgmt. 

Hr'gs Bd. Apr. 9, 2009); Chimacum Heights LLC v. Jefferson County, No. 09-2-

0007, at 3 (W. Wash. Growth Mgmt. Hr'gs Bd. May 20, 2009); Cole v. Pierce 

County, No. 96-3-0009c ,at 9-10 (Cent. Puget Sound Growth Mgmt. Hr'gs Bd. July 

31, 1996).

       On the other hand, under LUPA, the superior court is granted exclusive 

jurisdiction to review government actions meeting the definition of a "land use 
decision" under RCW 36.70C.020(2)(a).3 The definition includes decisions on 

applications for a "project permit." In turn, a project permit is defined by RCW 

36.70B.020(4), which we have recognized applies to LUPA. Woods v. Kittitas 

       3 RCW 36.70C.020(2) defines a "'[l]and use decision'" as "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."

                                               9 

Cause No. 84894-7

County, 162 Wn.2d 597, 610, 174 P.3d 25 (2007). Significant to the argument in 

this case, the definition for a "project permit" expressly excludes the adoption or 

amendment of a comprehensive plan. Further, among the types of applications 

excluded from a "land use decision" under RCW 36.70C.020(2)(a) are applications 

for legislative approvals. Amending a comprehensive plan is a legislative act. RCW 

36.70A.130(1). Thus, when a citizen submits a docket proposal for a comprehensive 

plan amendment, he or she is seeking legislative approval, not a land use decision as 

defined under LUPA. 

       In Coffey, Division Three recognized the distinction between decisions falling 

under the GMA and LUPA. There, Walla Walla's city council passed an ordinance 

adopting a comprehensive plan amendment pertaining to land 50 acres in size. 

Property owners of neighboring land challenged the amendment by filing a land use 

petition in superior court. The superior court dismissed the petition because the 

petitioners had not established that the city council acted in an arbitrary or 

capricious manner in adopting the ordinance. On appeal, Division Three affirmed 

the dismissal, but on different grounds. The court explained that comprehensive plan 

amendments were excluded from decisions reviewable under LUPA and that under 

RCW 36.70A.280 and .290, anyone seeking to challenge an amendment to a 

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Cause No. 84894-7

comprehensive plan was required to appeal that decision to the growth board, the 

agency with jurisdiction over such legislative decisions. Thus, the court concluded 

that the petitioners should have appealed to the growth board and held because of 

this the superior court lacked jurisdiction to consider a comprehensive plan 

amendment under LUPA. Coffey, 145 Wn. App. at 442.

       Yet contrary to the GMA, LUPA, and Coffey, the Court of Appeals in this 

case permitted Stafne to bypass the growth board and held that Stafne's avenue for 

relief was in superior court under LUPA. By reaching this conclusion, the court 

confused the concept of a legislative amendment changing the designation of land in 
a comprehensive plan with a quasi-judicial decision rezoning specific property.4

Though some rezone decisions fall under LUPA, Stafne did not seek a rezone of his 

property. He sought a legislative amendment to the County's comprehensive plan, 

including to the plan's future land use map. Because comprehensive plan 

amendments are not considered "land use decisions," LUPA cannot provide a direct 

means for judicial review of such amendments. In other words, even if the chances 

for successful review before the growth board are slim, that cannot change a 

nonland use decision into a land use decision under LUPA. The proper procedure 

       4 In its decision, the Court of Appeals refers to Stafne's request as a rezone. Stafne, 156 
Wn. App. at 685, 686.

                                              11 

Cause No. 84894-7

for challenging a local government's decision not to adopt a proposed 

comprehensive plan amendment is to appeal first to the growth board and next to the 

superior court under the APA. Therefore, we agree with the County and hold that a 

party challenging a decision related to a comprehensive plan must seek review 

before the growth board first and cannot seek relief in superior court under LUPA. 

       We also agree with the County that the Court of Appeals misunderstood the 

growth board's jurisdiction and incorrectly applied the futility exception, allowing 

Stafne to bypass administrative review before the growth board. Generally, parties 

are required to exhaust their administrative remedies before seeking judicial review. 

We have recognized limited exceptions to the exhaustion doctrine in circumstances 

of fairness or practicality, for example, where appeal would be futile. This futility 

exception is based on the principle that courts will not require vain and useless acts. 

Still, a strong bias exists toward requiring parties to follow the statutorily prescribed 

administrative path before resorting to the courts and the futility exception is 

narrowly applied. Orion Corp. v. State, 103 Wn.2d 441, 456-57, 693 P.2d 1369 

(1985).

       In this case, the Court of Appeals erred in its procedural and substantive 

application of the futility exception. Procedurally, at best, the futility exception 

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Cause No. 84894-7

permits a party to skip the "vain" or "useless" step in the review process. In no 

circumstance would the exception permit appeal under some other distinct, 

inapplicable statutory review scheme. According to the Court of Appeals, the futile 

step in this case was appealing to the growth board. But, if the futility exception 

applied, skipping review before the board simply would have allowed Stafne to 

appeal directly to the superior court under the procedures provided for in the GMA 

and APA, and not LUPA as the Court of Appeals concluded. 

       More important is the Court of Appeals' substantive error. Because the 

futility exception is narrowly applied and parties are rarely excused from 

administrative review, it is helpful to illustrate when we have found exhaustion 

futile. For example, we found it appropriate to apply the futility exception in Orion, 

the case the Court of Appeals relied upon. In that case, Orion owned the majority of 

land in Padilla Bay, an area designated as a shoreline of statewide significance, and 

its land included an estuarine sanctuary dedicated to long term maintenance of the 

ecosystem. Orion's development plans were incompatible with the area's 

designation, and the State and Skagit County had a clear policy that prevented 

development of the area. Although Orion could have, as a step in the "administrative 

process," applied for a development permit, we noted that it was evident from the 

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Cause No. 84894-7

existing policy that the permit would not have been granted. Moreover, as Orion 

maintained, it would have taken at least two years and cost over $200,000 to pursue 

that administrative remedy. Given these circumstances, we held that exhausting 

administrative remedies would have been futile and that Orion was permitted to 

seek review directly in superior court. Orion Corp., 103 Wn.2d at 443, 459-61.

       On the other hand, we have previously explained the importance of following 

the GMA administrative appeal process in situations like Stafne's. In Torrance, as 

occurred here, the property owner sought redesignation of his property by 

submitting a docket proposal during the county council's annual consideration of 

comprehensive plan amendments. The council decided not to change the property's 

designation. The owner appealed to the growth board, which found that the 

council's decision not to change the property's designation was a legal exercise of 

legislative discretion. Instead of appealing the growth board's decision under the 

APA, the owner sought a constitutional writ of certiorari in superior court. The 

superior court granted the writ, which we reversed, stressing the importance of 

following the statutorily prescribed review procedures and holding that the decision 

to forgo an available appeal was fatal to the owner's case. Torrance 136 Wn.2d at 

785-87, 792. This exhaustion principle applies equally here.

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Cause No. 84894-7

       In this case, the Court of Appeals read the growth board's decisions as 

consistently holding it "lacks jurisdiction" over actions like Stafne's, that is, where 

the party alleges that the failure to adopt a proposed comprehensive plan 

amendment means the plan is noncompliant with the GMA. This, as the court 

determined, meant that appeal to the board was futile. But while the board has 

consistently rejected claims such as Stafne's, as the circumstances in Orion

demonstrate, more is needed before a party can be excused from exhausting 

administrative remedies. Futility does not exist merely because the agency's 

decision would be unfavorable or, as in this case, may have resulted in a final order 

denying relief. 

       Under the GMA, the only statutory requirement for a party to appeal the 

growth board's decision to the superior court is that the board's decision be final. 

RCW 36.70A.300(5). A final decision by the growth board provides helpful analysis 

and reasoning to the superior court, as a court of review. Such a decision is also 

important given the deferential standard of review under the GMA and expertise of 

the board. As we now explain, this is precisely what the board's decisions in cases 

like Stafne's offer, which the Court of Appeals overlooked.

       A closer reading of the board's decisions shows it has not simply held it lacks 

                                              15 

Cause No. 84894-7

jurisdiction over claims like Stafne's.5 Significantly, the board's decisions cannot be 

read as establishing that the petitioner should have sought review elsewhere. Rather, 

in each decision, the board reviews the facts and issues specific to the case and 

makes a threshold determination on the petitioner's claims. In those decisions, the 

board has generally explained its reason for denying relief as follows:

       While RCW 36.70A.130 authorizes a local government to amend 
       comprehensive plans annually, it does not require amendments. 
       Moreover, it does not dictate that a specific proposed amendment be 
       adopted. . . .[When] the County takes an action pursuant to the 
       authority of RCW 36.70A.130 or fails to meet a duty imposed by some 
       other provision of the GMA, [the petitioner] may have an action that 
       could properly be brought before the Board. 

Cole, No. 96-3-0009c, at10 (footnote omitted). The board subsequently evaluates 

the petitioner's claims, explains that the petitioner failed to identify a statutory 

provision mandating that the county or city council amend the plan as the petitioners 

claim, and enters a final order. Cole, No. 96-3-0009c, at10; see, e.g., SR 9/US 2 

LLC, No. 08-3-0004, at 5 ("[a]bsent a duty to amend its Plan . . . such decisions are 

within the jurisdiction's discretion. . . . and there is no evidence that the County 

       5 That the growth board lacks "jurisdiction" over decisions not to adopt proposed 
amendments is not entirely accurate. Under the GMA, the board's jurisdiction is over petitions 
alleging GMA noncompliance stemming from either action or inaction of a local government. 
Thus, the question is not whether the board has jurisdiction to review claims such as Stafne's -- it 
does; the question instead is whether the growth board has authority to grant relief to parties, like 
Stafne, where there has been no showing that the amendment is required by the GMA or other 
law.

                                              16 

Cause No. 84894-7

ha[d] a duty to amend its plan to address the Petitioner's proposal" (emphasis 

added)).

       We agree with the board's determinations in cases like Cole and SR 9/US 2 

LLC. County and city councils have legislative discretion in deciding to amend or 
not amend their comprehensive plans.6 Absent a duty to adopt a comprehensive plan 

amendment pursuant to the GMA or other law, neither the board nor a court can 

grant relief (that is, order a legislative discretionary act). In other words, any remedy 

is not through the judicial branch. Instead, the remedy is to file a proposal at the 

County's next annual docketing cycle or mandatory review or through the political 

or election process.

       Importantly, the board's consistent determinations explaining why it cannot 

grant relief to parties like Stafne provide the superior court with a GMA-framework 

for review. This makes it imperative that courts require parties to exhaust 

administrative remedies before exercising judicial review. Moreover, a growth 

board's order denying relief to a party, based on the party's failure to identify a 

provision in the GMA requiring a local government to amend its plan, is final and 

appealable to the superior court thereafter. A final order is all that the GMA requires 

       6 Though amendments are considered annually, RCW 36.70A.130(2)(a) does not require 
jurisdictions to actually amend their plans annually.

                                              17 

Cause No. 84894-7

for appealing a board's decision to the superior court. Given these reasons, we hold 

that the Court of Appeals erroneously concluded that Stafne was permitted to 

bypass GMA review before the growth board.

       We turn now to Stafne's claims. Stafne first contends that the superior court 

has jurisdiction through its constitutional writ authority. The superior court has 

inherent power under article IV, section 6 of the Washington State Constitution to 

review administrative decisions for illegal or manifestly arbitrary acts. A 

constitutional writ of certiorari is discretionary with the court. This discretion can be 

exercised when no other adequate remedy at law is available and when the decision 

below is arbitrary, capricious, or contrary to law. Saldin Sec., Inc. v. Snohomish 

County, 134 Wn.2d 288, 292, 949 P.2d 370 (1998). As we mentioned, in Torrance

we squarely addressed this issue of when a superior court has constitutional writ 

authority to review a county's decision not to adopt an amendment redesignating

land in a comprehensive plan. There, we held that a constitutional writ was 

unavailable where a right to appeal exists and the failure to appeal is not excused. 

Torrance, 136 Wn.2d at 788, 793. That same reasoning applies here.    

       Stafne did not appeal the Council's decision to the growth board, failing to 

utilize an available statutory right of appeal and leaving no administrative decision 

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Cause No. 84894-7

to review. As in Torrance, Stafne's failure to exhaust administrative remedies 

means the superior court cannot grant a constitutional writ. 

       Finally, Stafne asserts the Court of Appeals erred by holding that the trial 

court properly denied his summary judgment motion seeking declaratory relief. 

Declaratory relief will not be ordered where the petitioner has an adequate legal 

remedy. Reeder v. King County, 57 Wn.2d 563, 564, 358 P.2d 810 (1961). Stafne

sought a judgment declaring the legal consequences of his boundary line adjustment, 

which incorporated the land he acquired from DNR into the parcel he already 

owned. A boundary line adjustment is a final land use decision that Stafne could 

have timely sought relief under LUPA. RCW 36.70C.020(2)(a). He did not. 

Moreover, the legal effect of a boundary line adjustment is to establish new 

boundary lines for parcels of real property; the adjustment does not legally effect 

how that land will be designated in a comprehensive plan or zoned. We agree with 

the Court of Appeals' holding that declaratory relief is unavailable to Stafne. 

                                       CONCLUSION

       We affirm the Court of Appeals and hold that parties seeking to appeal a 

jurisdiction's decision not to adopt a proposed comprehensive plan amendment must 

seek review before the growth board pursuant to the GMA, which prescribes the 

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Cause No. 84894-7

review process. We also hold that review under LUPA does not apply and that 

failure to appeal to the growth board bars Stafne's claims. 

                                              20 

Cause No. 84894-7

AUTHOR:
        Justice Charles W. Johnson

WE CONCUR:
        Chief Justice Barbara A. Madsen                  Justice James M. Johnson

                                                         Justice Debra L. Stephens

        Justice Tom Chambers                             Justice Charles K. Wiggins

        Justice Susan Owens                              Gerry L. Alexander, Justice Pro Tem.

        Justice Mary E. Fairhurst

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