352 P.3d 807
Wash. Ct. App.2015Background
- WVII (Woods View II LLC) and its sole owner/manager Piper planned a residential development on 19.76 acres of preexisting "legacy" lots in Kitsap County; project was controversial and drew community and elected-official opposition.
- WVII applied for a Site Development Activity Permit (SDAP), SEPA review, and a Large On-Site Sewer System (LOSS); all four challenged administrative decisions were ultimately granted to WVII, but after substantial delay.
- DOH (state Dept. of Health) approved an initial LOSS conditioned on single ownership (which impeded private financing); WVII later sought a modification to allow individual lot sales; modified LOSS approval took until August 2010.
- WVII alleges the County deliberately delayed permitting and communicated with DOH and third parties (KCSD, a potential lender Legacy) to impede the project; County contends it was asserting legal positions about Growth Management Act compliance.
- Procedural posture: federal court dismissed WVII’s federal constitutional claims; WVII refiled in state court asserting negligence, tortious interference, and takings; superior court granted summary judgment for the County; WVII appealed and the state appellate court affirmed in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statute of limitations for negligence/tortious interference | Delays accrued later (Dec 2006) because County requests for information tolled the 78‑day ordinance deadline, so claims filed Oct 2009 were timely | County: accrual began July 22, 2006, so claims after July 2009 are barred | Timely — accrual tolled by information requests; claims not time‑barred |
| Piper's standing to sue individually | Piper suffered distinct personal losses (personal guaranties, creditor suits) separate from WVII | County: Piper is a shareholder/guarantor and cannot sue for corporate injury | Piper lacks standing; dismissal of her individual claims affirmed |
| LUPA preclusion (whether damages claims must be brought under LUPA) | WVII seeks only monetary damages for delay, not reversal of land‑use decisions, so LUPA does not bar suit | County: land‑use permitting disputes are LUPA matters and LUPA is exclusive | LUPA does not bar WVII’s damages claim (monetary relief falls outside LUPA) |
| Negligence (public duty doctrine) | County breached duty by failing to timely process permits and by its communications/interference | County: duty was public not particular; public‑duty doctrine bars liability; exceptions (failure‑to‑enforce, special relationship) do not apply | Summary judgment for County affirmed; public duty doctrine bars negligence claim |
| Tortious interference with expectancies/contracts | County intentionally and improperly interfered (communications to DOH, KCSD, Legacy; suspension of processing) causing relationships/financing to fail | County: communications were lawful advocacy/interpretation of law; WVII cannot show interference caused terminations or that means/purpose were improper | Summary judgment for County affirmed; WVII failed to show improper means or purpose and causation for interference claim |
| Takings (regulatory or by delay) | Delays and County‑induced covenant/conditions (single‑ownership requirement via DOH) destroyed property value/attributes and amounted to a taking | County: did not physically invade or effect a regulatory taking; DOH—not County—imposed conditions; delay alone is not a compensable taking | Summary judgment for County affirmed; no legal taking shown (delay and County communications insufficient) |
Key Cases Cited
- Mohr v. Grantham, 172 Wn.2d 844 (2011) (standard of review for summary judgment)
- Qwest Corp. v. City of Bellevue, 161 Wn.2d 353 (2007) (summary judgment standards and evidence inferences)
- Birnbaum v. Pierce County, 167 Wn. App. 728 (2012) (accrual tied to statutory time‑limit breach in permit processing)
- Munich v. Skagit Emergency Commc’ns Ctr., 175 Wn.2d 871 (2013) (public duty doctrine and its exceptions)
- Pleas v. City of Seattle, 112 Wn.2d 794 (1989) (tortious interference: improper purpose/means by government to favor constituents)
- Westmark Dev. Corp. v. City of Burien, 140 Wn. App. 540 (2007) (governmental extraordinary delay and singling out as improper means)
- Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909 (2013) (LUPA does not bar claims seeking only monetary damages)
- Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) (regulatory takings where all economically viable use is eliminated)