274 P.3d 1070
Wash. Ct. App.2012Background
- Birnbaum filed a February 23, 2005 application with Pierce County for a conditional use permit to build a campground;
- Hearing examiner in August–September 2006 found the plan deficient and returned it for more information or issued a final denial option;
- Birnbaum submitted a revised plan December 2006 and sought a new public hearing;
- A hearing occurred (actually held) December 16, 2009, with final permit approval issued March 15, 2010;
- Final approval lists multiple later plan revisions (2008–2010) with no clear link to information demands in record; and
- Birnbaum filed suit about 30 days after final decision, alleging time-limit violations and arbitrary information requests; the trial court dismissed under CR 12(b)(6).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Damages for failure to comply with time limits | Birnbaum argues County exceeded 120-day time limits and tolling when info was requested. | County argues the 30-day limit begins after exhaustion of remedies and this action is untimely. | Time-limit damages barred; action untimely. |
| Damages under the final decision prong | Damages may arise from arbitrary/delays pre-final decision that affect the property. | Damages under the final decision prong only accrue after a final decision places burdens on property; pre-decision delays are not recoverable. | Pre-final delays not recoverable under final decision prong; claims dismissed. |
| Adequate relief theory | Brower relief exhausted was not available; relief here inadequate because the claim concerns pre-final processing. | Brower controls only when administrative relief is adequate; here it was not. | Brower does not apply; adequate relief not available; argument rejected. |
| Collateral attack/collateral estoppel | Challenge to 2006 decision not a collateral attack; pre-final information requests should be reviewable. | LUPA/collateral estoppel could bar claims tied to the 2006 decision. | Not a collateral attack or estoppel; claims allowed to proceed. |
Key Cases Cited
- Callfas v. Dep't of Construction & Land Use, 129 Wash.App. 579 (2005) (damages limited by statute; exhaustion rules)
- Hayes v. City of Seattle, 131 Wash.2d 706 (1997) (final decision timing for damages)
- Mission Springs, Inc. v. City of Spokane, 134 Wash.2d 947 (1998) (damages after final decision allowed)
- Brower v. Pierce County, 96 Wash.App. 559 (1999) (adequate relief exhaustion principle)
- Smoke v. City of Seattle, 132 Wash.2d 214 (1997) (administrative remedies; timing)