James Chumbley v. Snohomish County
197 Wash. App. 346
| Wash. Ct. App. | 2016Background
- Begis planned a house on upland lot 36 and submitted an application to the Snohomish Health District for an onsite sewage system whose drainfield would be placed on his adjacent hillside lots 60 and 61 above railroad tracks and neighbors.
- The Health District initially disapproved, requested geotechnical reports, then approved the onsite sewage permit in February 2015; County Planning issued a building permit for lot 36 the next day but did not issue permits or review for grading on lots 60–61.
- Contractor grading for the drainfield struck a spring, producing seepage down the bluff; Shannon & Wilson (hired by BNSF) raised slope-stability concerns and reported groundwater flow into railroad/neighborhood areas.
- County Planning posted stop-work orders and a notice of violation for unpermitted land-disturbing activity on lots 60–61, then later recorded the enforcement file as closed and entered that “no permit will be required”; Health District gave final approval of the installed system and a certificate of occupancy was issued for the house.
- Railroad and neighboring homeowners sued within 21 days of County Planning’s final enforcement closure (alleging County failed to enforce its landslide/land-disturbing rules and improperly deferred to the Health District) seeking LUPA review and injunctive relief; the trial court dismissed as an untimely LUPA petition filed after the building permit issuance.
- The Court of Appeals reversed, holding the complaint challenged a separate, later “land use decision” (final enforcement decision that no permit was required for lots 60–61) and thus was timely when filed within 21 days of that final enforcement closure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs’ suit was an untimely LUPA challenge to the building permit | The suit challenges County Planning’s failure to require permits/enforce critical-areas rules for lots 60–61 and was filed within 21 days of County’s final enforcement decision | Defendants say the building permit (issued Feb 24) implied approval of all related work and plaintiffs’ challenge is a belated attack on that permit | Held: Not untimely — building permit did not memorialize approval of grading on lots 60–61; the final enforcement closure ("no permit required") was a separate land use decision and suit was filed within 21 days |
| Whether Health District’s approval preempted County’s enforcement of critical-area/land-disturbing rules | Plaintiffs: County retained independent duty to enforce its critical-areas and grading codes despite Health District’s OSS approval | County: Health District’s regulatory role over onsite sewage systems precludes County review/enforcement of same activity | Held: No preemption — Health District regulates public health aspects of OSS, but County retains independent responsibility to enforce its landslide/land-disturbing ordinances |
| Whether Samuel’s Furniture bars collateral attack after permitting by another agency | Plaintiffs: Samuel’s Furniture does not apply because the agencies had different, non-overlapping decisions | Defendants: Samuel’s Furniture prevents collateral attack when overlapping regulatory approvals exist | Held: Samuel’s Furniture distinguishable — unlike that case, County and Health District had different roles and did not make the same final determination |
| Whether applicants (Begis/Begis Building) remained necessary parties despite sale of property | Plaintiffs: seek relief against permitting/enforcement decisions; applicants were involved in the challenged approvals/actions | Begis: asserts no continuing interest and no relief sought from them, so dismissal as to them is appropriate | Held: Applicants remain necessary parties under LUPA and should not be dismissed solely because they sold the property |
Key Cases Cited
- Samuel's Furniture, Inc. v. Dep't of Ecology, 147 Wn.2d 440 (Wash. 2002) (agency must timely seek LUPA review of local permitting decisions that it wishes to challenge)
- Twin Bridge Marine Park, LLC v. Dep't of Ecology, 162 Wn.2d 825 (Wash. 2008) (related principle on challenging permitting/enforcement decisions)
- Habitat Watch v. Skagit County, 155 Wn.2d 397 (Wash. 2005) (untimeliness under LUPA allows illegal land use decisions to stand)
- Vogel v. City of Richland, 161 Wn. App. 770 (Wash. Ct. App. 2011) (a land use decision must be memorialized in a tangible, accessible way to trigger LUPA deadlines)
- Durland v. San Juan County, 175 Wn. App. 316 (Wash. Ct. App. 2013) (standard of review for denial of motion to dismiss in LUPA context)