146 Wash. 2d 904 | Wash. | 2002
Lead Opinion
— Petitioners (Michael K. Nykreim and Laurie A. Nykreim, husband and wife; B. Rick Whitney and Vickie L. Whitney, husband and wife; and William J. Kelly and Jane E. Kelly, husband and wife) seek discretionary review of a decision of the Court of Appeals, Division Three, which affirmed summary judgment by the Chelan County Superior Court in favor of Respondents (Chelan County; Eric Gebelein and Rebecca Waud, husband and wife; Joseph J. Straus and Mary Shima, husband and wife; Gary Kincaid and Julienne Kincaid, husband and wife; and David Bale and Melissa Bale, husband and wife) declaring void a boundary line adjustment previously granted Petitioners by Chelan County and dismissing Petitioners’ counterclaims for damages. The Court of Appeals held that the Respondents’ challenge of the boundary line adjustment decision was a ministerial act which was not time-barred under the Land Use Petition Act (LUPA), chapter 36.70C RCW, because LUPA applies only to quasi-judicial land use decisions. We granted review. We reverse the Court of Appeals.
QUESTIONS PRESENTED
The questions presented in this case are (1) whether LUPA applies only to quasi-judicial land use decisions and not to ministerial decisions and, if not, whether Respondents’ challenge to the boundary line adjustment decision by the Chelan County Planning Director is time-barred because it was made more than one year after the 21 day deadline for filing petitions for judicial review of land use decisions under LUPA; and (2) whether Petitioners are entitled to damages under RCW 64.40.020 because Respondent Chelan County either knew or should have known the boundary line adjustment was in violation of Chelan County ordinances.
On July 1, 1997, Petitioners acquired, as tenants in common, a large parcel of land in Chelan County from James S. Kempton
On August 11, 1997, Petitioners filed an application for a boundary line adjustment (BLA) with the Chelan County Planning Department and signed an acknowledgment with a statement of consent and waiver of claims agreeing to hold Chelan County harmless in any cause of action arising out of the BLA or recordation and consenting to the BLA proposed in the application.
Old Parcel “A” was described as “That portion of the NWV4 of the SEy4 of Section 27, T24N, R17E W.M. Chelan County, Washington, lying Southerly and Southeasterly of the centerline of Icicle Creek.”
Old Parcel “B” was described as “That portion of the NW% of the SEy4 of Section 27, T24N, R17E W.M. Chelan County, Washington, lying Southerly of the centerline of Icicle Creek County Road, also known as Cascade Orchard
Old Parcel “C” was described as “That portion of the NW1/* of the SE1/* of Section 27, T24N, R17E W.M. Chelan County, Washington, lying Northerly of the centerline of Icicle Creek County Road, also shown as Cascade Orchards County Road.”
In their pleading Petitioners answer that they “own property in the northwest quarter of the northeast quarter of Sec. 27 T24N, R17 E.W.M., not the northeast quarter of the southeast quarter.” This is consistent with the legal descriptions they provided with their application and with the legal description in the conveyance from James S. Kempton to Petitioners by statutory warranty deed dated July 1, 1997. This case is concerned only with this parcel.
Aside from the reference in Petitioners’ BLA application, there was no indication of record that the property had been previously divided as they asserted,
New Parcel “A” was described as “That portion of the NW1/* of the SE1/* of Section 27, T24N, R17E W.M. Chelan County, Washington, described as follows: Beginning at the NW corner of the said subdivision, thence along the North line of the said subdivision North 88°53’38” East 609.84 feet, thence leaving the said North Line South 00°13’27” West 1330.66 feet to the South line of the said subdivision, thence South 89°25’05” West 605.93 feet to the SW corner of the said subdivision, thence North 00°03’35” East 1325.03 feet to the NW comer of the said subdivision and the end of this description.”
New Parcel “C” was described as “That portion of the NWy4 of the SEy4 of Section 27, T24N, R17E W.M. Chelan County, Washington, described as follows: Beginning at the NW corner of the said subdivision, thence along the North line of the said Subdivision North 88°53’38” East 959.93 feet to the point of beginning of this description, thence South 00°13’29” West 1333.86 feet to the South line of the said subdivision, thence North 89°25’05” East 350.04 feet to the NE corner of said subdivision, thence South 88°53’38” West 350.09 feet to the point of beginning and the end of this description.”
On October 9, 1997, John W. Harrington, Jr., Administrator of the Chelan County Planning Department, approved the BLA application by signing a certificate of exemption and attaching a copy of the legal descriptions of new Parcels “A,” “B” and “C” indicated by Petitioners in their application.
As a condition for approval of the BLA application, Mr. Harrington required Petitioners to execute and record notices to title for each lot
In May 1998 Petitioners applied for conditional use permits (CUPs) to construct “three (3) single-family dwellings on a 33.5-acre lot outside an existing subdivision and within the Icicle Valley Design Review Overlay District.”
Previously on August 4, 1998 Joseph J. Straus, a neighbor and an attorney who is now an Intervenor in this case, addressed a letter to “Mr. James [sic] Harrington, Senior Staff Planner” asserting that the BLA was illegal and violated applicable Chelan County Code, Subdivision Code Section 302(8), RCW 58.17.040(2), boundary lot line adjustment criteria
On December 11,1998 Chelan County filed, in the Chelan County Superior Court, this complaint “for declaratory judgment on the question of the propriety of Chelan County BLA 97-154 and the associated Notices to Title and Acknowledgments and Agreements and Statements of Consent and Waivers of Claims, given the applicable regulations of Chelan County and Washington State law.”
Under the Uniform Declaratory Judgments Act, chapter 7.24 RCW, “Courts of record . . . shall have power to declare rights, status and other legal relations whether or not further relief is or could be claimed. An action or proceeding shall not be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and
Under RCW 7.24.020, “[a] person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.” A municipal corporation “of any character whatsoever” is included in the definition of “person” under RCW 7.24.130.
On September 30, 1999 Petitioners moved the court for partial summary judgment to dismiss all claims brought by Respondents on June 16, 1999 and for final judgment.
On November 30, 1999 Petitioners filed an appeal to the Court of Appeals, Division Three, of the order granting Respondents’ summary judgment motions.
Petitioners sought review by this court. It was granted on October 2, 2001.
DISCUSSION
The central issue in this appeal is whether the Court of Appeals, Division Three, was correct in holding that the LUPA applies only to quasi-judicial land use decisions and not to ministerial decisions such as a BLA decision by Chelan County.
LUPA pertains to judicial review of all land use decisions with some exceptions noted in the statute.
According to Petitioners, judicial review of the Chelan County BLA decision should have been barred because the County did not timely file a petition for review within 21 days under LUPA.
Respondents, to the contrary, maintain that LUPA does not apply in this case. They assert that LUPA is designed to allow appeals of only quasi-judicial decisions because those decisions provide interested parties with notice of the decisions and an opportunity to conform with LUPA’s 21-day appeal period;
Agreeing with Respondents, the Court of Appeals reasoned that although LUPA does not explicitly limit its application to quasi-judicial decisions, its language implicitly supports a conclusion that ministerial decisions are outside its scope.
Petitioners contend that even if LUPA does not apply to ministerial land use decisions, Mr. Harrington’s approval of the BLA application was not a purely ministerial act because he exercised discretion in interpreting and applying Section 200 and determining that the facts in this case met the substantive criteria for a BLA approval.
In R/L Associates, R/L applied to the City of Seattle for a boundary lot adjustment proposing to shift a lot line running horizontally to bisect its parcel vertically.
The Court of Appeals, Division One, concluded in this case that the BLA decision in R/L was quasi-judicial, as was the decision in Cox.
The Court of Appeals determination in this case that LUPA is the exclusive means of review of only quasi-judicial decisions relies upon Washington case law which predated LUPA (enacted in 1995) and its own post-LUPA decision in Larsen v. Town of Colton decided in 1999.
Before LUPA, a line of Washington cases held that an improperly approved building permit is void and may be rescinded by the agency which erroneously issued it.
In the 1923 case of Nolan v. Blackwell, a building permit for a wood structure was erroneously issued in a zone that allowed only brick buildings.
Although not binding on this court, some Court of Appeals cases have discussed the appropriate remedy an aggrieved property owner should seek.
Petitioners argue that cases decided prior to LUPA are no longer applicable to land use decisions.
In Larsen, the Tiltons owned two adjacent residential lots: on one lot was a single-family home and an attached garage, and on the other lot they proposed to build another garage in which Mr. Tilton could pursue his hobby of
Although acknowledging that “LUPA is the exclusive means of obtaining judicial review of land use decisions,” the Court of Appeals in Larsen also noted that LUPA requires an aggrieved person to file a petition for review within the 21-day limitation period.
After deciding LUPA did not apply, the court in Larsen focused on the timeliness of the Larsens’ declaratory action.
Respondents contend Larsen and the preceding cases stand as an exception to LUPA when a governmental agency erroneously issuing a land use decision has the legal right to revoke the act at any time.
Even though concluding the land use decision in that case was ministerial, the court in Larsen did not negate the appeal limitation rule, as did the Court of Appeals in this case, in concluding that the ministerial distinction gov
Larsen, in any event, does not advance Respondents’ arguments for two reasons. First, the due process concern in Larsen focused on the ability of an aggrieved party, who did not have notice or knowledge of a ministerial land use decision, to challenge within a reasonable time. In this case, Chelan County, because of approval of the BLA on October 9, 1997 by its Planning Director, had knowledge of its own decision for 14 months prior to filing this declaratory judgment action on December 11,1998.
Respondents ask this court to adopt and extend the ministerial/quasi-judicial distinction in Larsen to this case, a distinction this court has not previously made in the LUPA context and does not now make. This case, however, is more analogous to Wenatchee Sportsmen Association v. Chelan County which addressed the issue whether “a party’s failure to timely appeal a county’s approval of a site-specific rezone bar[s] it from challenging the validity of
This court concluded that, although the residential project constituted impermissible urban growth outside of the IUGA, a challenge of the rezone should have been raised in a timely LUPA action within 21 days of the 1996 action and not in the later challenge of the 1998 plat approval.
Under LUPA “[a] land use petition is barred, and the court may not grant review, unless the petition is timely filed . . . .” The petition is timely filed if it is filed within 21 days of the issuance of the land use decision .... Because RCW 36.700.040(2) prevents a court from reviewing a petition that is untimely, approval of the rezone became valid once the opportunity to challenge it passed. It was too late for [Wenatchee Sportsmen Association] to challenge approval of the rezone in a LUPA petition filed in 1998 .... If there is no challenge to the decision, the decision is valid, the statutory bar against untimely petitions must be given effect, and the issue of whether the zoning ordinance is compatible with IUGA is no longer reviewable.t94 )
(Emphasis added.)
Under Wenatchee Sportsmen Association, approval
Applicability of LUPA
“When statutory language is plain and unambiguous, the statute’s meaning must be derived from the wording of the statute itself.”
The Court of Appeals agrees that a BLA “modifies real property” within the definition of a “land use decision,” but
Review of Land Use Decisions
A plain reading of the language of LUPA leads to a conclusion that it applies to both ministerial and quasi-judicial land use decisions. Under LUPA a land use decision is defined as:
(1)... 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 . . . .[102 ]
Prior to amendment of Chelan County’s current Subdivision Resolution,
During Mr. Harrington’s tenure as Planning Director, he interpreted Section 200 of the Chelan County Subdivision Resolution to allow creation of separate parcels within a single parcel when the parcels are separated by a public
Respondents sought review, arguing that the Chelan County Planning Director, Mr. Harrington, misinterpreted Section 200 in approving Petitioners’ BLA application. The Court of Appeals agreed, stating “the language concerning parcels separated by a road or stream relates to the definition of land ‘as a unit for determining subdivision,’ and does not create ‘lots’ based on the location of a road or stream.”
This court has previously indicated that ministerial land use decisions are reviewed under LUPA. To determine whether a project permit included site-specific rezones, this court in Wenatchee Sportsmen relied on RCW 36-.70B.020(4), which reads:
(4) “Project permit” or “project permit application” means any land use or environmental permit or license required from a local government for a project action, including but not limited to building permits, subdivisions . . . permits or approvals required by critical area ordinances, site-specific rezones . . . .[109 ]
Building permits are subject to judicial review under LUPA. Historically, actions on building permits have been characterized by this court as ministerial determinations,
In addition, LUPA’s scope of review includes both quasi-judicial and ministerial decisions. RCW 36.70C.120 reads in part:
(1) When the land use decision being reviewed was made by a quasi-judicial body or officer . . . judicial review of factual issues . . . shall be confined to the record created by the quasi-judicial body or officer, except as provided in subsection (2) through (4) of this section.
*930 (3) For land use decisions other than those described in subsection (1) of this section, the record for judicial review may be supplemented by evidence of material facts that were not made part of the local jurisdiction’s record.
(Emphasis added.)
Subsection (1) considers that some land use decisions will be determined by a quasi-judicial body or officer. However, subsection (3) indicates that LUPA contemplates that some land use decisions may be made by other bodies or officers.
Exclusive Means of Judicial Review
RCW 36.70C.030(1) states that “This chapter replaces the writ of certiorari for appeal of land use decisions and shall be the exclusive means of judicial review of land use decisions, except that this chapter does not apply to [enumerated exceptions not relevant to this case].” (Emphasis added.)
While LUPA states that it replaces the writ of certiorari, it does not limit judicial review to quasi-judicial land use decisions. In fact it expressly states that LUPA “shall be the exclusive means of judicial review of land use decisions.” (Emphasis added.)
The common law writ of certiorari has been codified in chapter 7.16 RCW as the writ of review, which generally grants review of only quasi-judicial determinations.
Construing the express language of RCW 36.70C.030(1) (“[t]his chapter replaces the writ of certiorari for appeal of land use decisions and shall he the exclusive means of judicial review of land use decisions”) (emphasis added) according to its obvious meaning without regard to previous common law or, in this case, chapter 7.16 RCW, all land use decisions are subject to LUPA unless specifically excluded under RCW 36.70C.030.
Finality
Respondents rely on the ministerial/quasi-judicial distinction in arguing that a county cannot be prevented from revoking an improperly issued land use approval under res judicata or in the interest of administrative finality. They maintain that res judicata applies only in the quasi-judicial context and never applies to purely ministerial approvals.
Applying LUPA and following this court’s decision in Wenatchee Sportsmen in this case is consistent with this court’s stringent adherence to statutory time limits. This court has
also recognized a strong public policy supporting administrative finality in land use decisions. In fact, this court has stated that “[i]f there were not finality [in land use decisions], no owner of land would ever be safe in proceeding with development of his property. ... To make an exception . . . would com*932 pletely defeat the purpose and policy of the law in making a definite time limit.”[117 ]
Following this policy of finality of land use decisions, this court in Wenatchee Sportsmen Association held that an untimely petition under LUPA precluded collateral attack of the land use decision and rendered the improper approval valid.
The express language in LUPA also supports finality in land use decisions. RCW 36.70C.040(2), (3) and (4) read:
(2) A land use petition is barred, and the court may not grant review, unless the petition is timely filed with the court and timely served....
(3) The petition is timely if it is filed and served . . . within twenty-one days of the issuance of the land use decision.
(4) For the purposes of this section, the date on which a land use decision is issued is:
(c) [T]he date the decision is entered into the public record.
(Emphasis added.)
The language in LUPA is clear: A petition for judicial review of a land use decision is barred unless timely filed within 21 days of issuance of the decision. This declaratory judgment action was filed by Chelan County on December 11, 1998, 14 months after Petitioners’ BLA application was approved by the Chelan County Planning Director and recorded on October 9, 1997. Dismissal of this action is consistent with the express purpose of LUPA, which states:
The purpose of this chapter is to reform the process for judicial review of land use decisions made by local jurisdictions, by establishing uniform, expedited appeal procedures and uniform criteria for reviewing such decisions, in order to provide consistent, predictable, and timely judicial review.[119 ]
As amici curiae point out, if this court allows local government to rescind a previous land use approval without concern of finality, innocent property owners relying on a county’s land use decision will be subject to change in policy whenever a new County Planning Director disagrees with a decision of the predecessor director.
Standing
Under LUPA, standing to bring a land use petition is limited to the applicant or property owner to whom the land use decision is directed or a person aggrieved or adversely affected by the land use decision.
Respondents maintain that LUPA does not contemplate an appeal of a land use decision by the same governmental agency that issued it. They contend that LUPA applies when the property owner or an aggrieved person seeks judicial review of a quasi-judicial decision.
The next issue is whether Chelan County is an aggrieved person.
A person is aggrieved or adversely affected ... when all of the following conditions are present:
(a) The land use decision has prejudiced or is likely to prejudice that person;
(b) That person’s asserted interests are among those that the local jurisdiction was required to consider when it made the land use decision;
(c) A judgment in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the land use decision; and
(d) The petitioner has exhausted his or her administrative remedies to the extent required by law.[126 ]
Applying the facts of this case to each condition, we reasonably conclude that Chelan County is an aggrieved or adversely affected person under LUPA.
Observing that there is no case law interpreting the “prejudice or is likely to prejudice” requirement in LUPA,
Contrary case law directly discussing standing under LUPA, however, suggests that Intervenors do not have standing. An interest sufficient to support standing to sue, however, must be more than simply the abstract interest of the general public in having others comply with the law.
Generally, cases discussing “injured parties” in the context of land use decisions refer to parties other than government entities. However, recently this court decided Skamania County v. Columbia River Gorge Commission, in which one government entity challenged the land use decision of another government entity.
In Skamania, under the Columbia River Gorge National Scenic Area Act, the Columbia River Gorge Commission
The more definitive issue in this case is whether a governmental entity, Chelan County, can be prejudiced or injured by the erroneous interpretation and application of law of its own agent, its Director of Planning. Similar to the dispute in Skamania, the dispute in this case is over the interpretation of the Chelan County Code by the Chelan County Planning Director and his approval of the BLA and subsequent revocation by Chelan County. Chelan County disagreed with Mr. Harrington’s interpretation and contingent BLA approval and challenged it by filing a declaratory action 14 months later, arguing that the improper BLA created three building sites instead of two building sites and was thus in violation of County Codes and zoning
Comparing the standing provisions of the APA, RCW 34.05.530, with the standing provisions of LUPA, RCW 36.70C.060, the conditions for establishing standing are quite similar in language. They both involve the injury-in-fact requirement. A judgment in favor of Chelan County permitting it to rescind the BLA approval would set aside the action of its agent, Mr. Harrington, who authorized the BLA contrary to County Codes and zoning ordinances, thus satisfying the third condition.
The second condition involves the “zone of interest test.”
As did the county in Skamania, Chelan County in this case has an interest in enforcing and protecting the integrity of its County Codes and zoning ordinances. In acting upon Petitioners’ BLA application, the Chelan County Planning Department required that the Chelan
To have standing to bring a petition under LUPA, a party must exhaust administrative remedies.
Damages
We do not address Petitioners’ claim for damages because our decision is in their favor.
SUMMARY AND CONCLUSIONS
The decision of the Chelan County Planning Director in approving the boundary line adjustment application of Petitioners on October 9, 1997, with recordation on that
Under LUPA a land use petition is barred, and the court may not grant review, unless the petition is timely filed with the court “within twenty-one days of the issuance of the land use decision.”
Chelan County, after determining that its own planning director on October 9, 1997 had erroneously approved the boundary line adjustment requested by Petitioners, based upon the County’s later conclusion that the planning director had misinterpreted the County’s ordinances, on August 25,1998, withdrew the certificate of exemption (authorizing the boundary line adjustment) and denied the conditional use permits after Petitioners applied for conditional use permits in May 1998.
Chelan County then on December 11, 1998 filed in the Chelan County Superior Court this declaratory judgment action challenging the propriety of the boundary line adjustment granted by its own planning director on October 9, 1997. A ruling in favor of the County was appealed to the Court of Appeals, Division Three, which affirmed the decision.
The Court of Appeals concluded that LUPA applies only to quasi-judicial decisions and not to ministerial decisions; that the decision by the planning director was ministerial and LUPA therefore does not apply to this action. The court thus concluded that this action by Chelan County, not being subject to LUPA, did not require appeal “within twenty-one days.” The court approved the action for declaratory judgment which was not brought by Chelan County until 14 months after the October 9, 1997 decision of its planning director.
Chelan County, not having met the 21-day time limit for appeals, cannot under LUPA bring this action before the Superior Court 14 months after the decision of its own planning director. Despite the boundary line adjustment decision of its planning director, the County still has the authority to act upon future applications by Petitioners for necessary permits under Chelan County ordinances.
The Court of Appeals, Division Three, was in error in concluding that the boundary line adjustment decision by the Chelan County Planning Director on October 9, 1997 was a ministerial act not covered by LUPA and thus not subject to the 21-day limit for appeals because LUPA applies only to quasi-judicial land use decisions.
We reverse the Court of Appeals.
Sanders, Ireland, Bridge, and Chambers, JJ., concur.
Clerk’s Papers at 219.
Contrary to the recorded deed, Respondents contend that James S. Kempton granted the northeast quarter to Petitioners.
Clerk’s Papers at 219-21.
See id. at 343-44.
See id. at 342-49. Boundary line adjustment number 97-154.
Id. at 346.
See Chelan County v. Nykreim, 105 Wn. App. 339, 20 P.3d 416 (2001).
Clerk’s Papers at 342-47.
Id.
Clerk’s Papers at 244-46. Certificate of Exemption, CE 1997-7. Mr. Harrington is otherwise referred to throughout this opinion as Director of the Chelan Comity Planning Department.
See id.
John W. Harrington, Jr., stated in his declaration that “[t]here was no question whatsoever that the application of Chelan County Subdivision Resolution, Article II, Section 200, resulted in three existing legal lots or three existing building sites within the original 40 acre parcel. This was the interpretation of that ordinance during my entire tenure at Chelan County.” Clerk’s Papers at 188-89.
See RCW 58.17.040(6); Chelan County Subdivision Resolution, Article III, Section 302.
14 Clerk’s Papers at 189.
Id. at 188-89.
Id.
Id. at 230-35.
Clerk’s Papers at 44-48. Applications for CUPs: 98-13, 98-14, 98-15.
Id. at 42.
Intervenor Respondents are four married couples who own property upstream from Petitioners’ property: Eric Gebelein and Rebecca Waud; Joseph J. Straus and Mary Shima; Gary Kincaid and Julienne Kincaid; and David Bale and Melissa Bale.
Clerk’s Papers at 412-13.
Id. at 427. The criteria read:
The adjustment must meet all of the following criteria:
• The adjustment does not create an additional lot, tract, parcel, site or division of land.
• The adjustment does not result in creation of any lot, tract, parcel, site or division which contains insufficient area and dimensions to meet the minimum requirements of the zone in which the lots affected are situated.
• The adjustment does not involve the relocation of building sites, existing or anticipated easements, utilities, septic tanks and drainfields or other features.
See Clerk’s Papers at 419-25.
Id.
Id. at 236.
Id. at 428 (finding that the proposed project’s dwelling units of 11 acres exceeded the maximum allowable density in the forest resource zoning district, one dwelling unit per 20 acres).
Id. at 242.
Id. at 376
Clerk’s Papers at 360.
Id. at 372-75.
Id. at 358-59, 127-28.
See Clerk’s Papers at 10-13.
The court’s order stated, in pertinent part, that “the proposed Boundary line Adjustment was not a minor boundary adjustment but rather a substantial change in the configuration of the property lines, and that none of the resulting parcels would comply with the 20 acre zoning density, and the Court having further determined that the Notices to Title were invalid and incapable of rectifying the improper Boundary Line Adjustment, and the Court having further found that the County’s authority to revoke the Boundary Line Adjustment is not precluded based on theories of vested rights, equitable estoppel, contract or Land Use Petition Act....”
Id. at 7-8.
Briefs amicus curiae were filed by the Building Industry Association of Washington, the Washington Land Title Association, the Washington Association of Realtors, and the Washington State Farm Bureau.
Nykreim, 105 Wn. App. at 360.
Id. at 361.
Id. at 361-62.
144 Wn.2d 1016, 32 P.3d 283 (2001).
RCW 36.70C.010-.030.
See Harris v. Hornbaker, 98 Wn.2d 650, 658 P.2d 1219 (1983); Responsible Urban Growth Group v. City of Kent, 123 Wn.2d 376, 868 P.2d 861 (1994); Chaussee v. Snohomish County Council, 38 Wn. App. 630, 689 P.2d 1084 (1984); R/L Assocs., Inc., v. Klockars, 52 Wn. App. 726, 763 P.2d 1244 (1988).
RCW 36.700.030(1) reads:
[T]his chapter does not apply to:
(a) Judicial review of:
(i) Land use decisions made by bodies that are not part of a local jurisdiction;
(ii) Land use decisions of a local jurisdiction that are subject to review by a quasi-judicial body created by state law, such as the shorelines hearings board or the growth management hearings board;
(b) Judicial review of applications for a writ of mandamus or prohibition; or
(c) Claims provided by any law for monetary damages or compensation. .. .
RCW 36.70C.030(1) (emphasis added).
RCW 36.70C.010.
RCW 36.700.040(2), (3).
Br. of Pet’r at 19-22.
Id.
Id.
Chelan County required compliance with a two step process. First, the requesting party must send a completed application to the Chelan County Planning Department with a recording fee. Second, the BLA application states, “[u]pon determination that the proposed adjustment meets the criteria in Step 1, and contains the information called for in Step 2, the form will be forwarded to the Chelan County Auditor for recordation.” See Clerk’s Papers at 221.
Nykreim, 105 Wn. App. at 360-61.
Id. at 361 (quoting RCW 7.16.040 which reads, “A writ of review [certiorari] shall be granted by any court, except a municipal or district court, when an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, or one acting illegally, or to correct any erroneous or void proceeding, or a proceeding not according to the course of the common law, and there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy at law.”).
id.
Suppl. Br. of Pet’r Nykreim at 11.
Br. of Pet’r at 9 (citing R/L Assocs, Inc. v. Klockars., 52 Wn. App. 726, 729, 763 P.2d 1244 (1988); Cox v. City of Lynnwood, 72 Wn. App. 1, 11, 863 P.2d 578 (1993).
Nykreim, 105 Wn. App. at 354-55.
R/L Assocs., 52 Wn. App. at 728.
Id.
The trial court, upon a writ of certiorari, affirmed and dismissed the writ. The Court of Appeals, Division One, affirmed.
Nykreim, 105 Wn. App. at 354-55.
Cox, 72 Wn. App. at 11.
See Nolan v. Blackwell, 123 Wash. 504, 506, 212 P. 1048 (1923); Eastlake Cmty. Council v. Roanoke Assocs., Inc., 82 Wn.2d 475, 481, 513 P.2d 36 (1973); Larsen v. Town of Colton, 94 Wn. App. 383, 973 P.2d 1066 (1999).
See Nolan, 123 Wash. at 506; Roanoke Assocs., 82 Wn.2d at 481.
See Nolan v. Blackwell, 123 Wash. 504, 506, 212 P. 1048 (1923); Hull v. Hunt, 53 Wn.2d 125, 331 P.2d 856 (1958); Steele v. Queen City Broad. Co., 54 Wn.2d 402, 341 P.2d 499 (1959); Radach v. Gunderson, 39 Wn. App. 392, 695 P.2d 128 (1985).
See Nolan, 123 Wash. at 504-05.
Id.
Id.
Eastlake Cmty. Council v. Roanoke Assocs., Inc., 82 Wn.2d 475, 481-82, 513 P.2d 36 (1973).
Id.
See Radach v. Gunderson, 39 Wn. App. 392, 400, 695 P.2d 128 (1985); City of Mercer Island v. Steinmann, 9 Wn. App. 479, 513 P.2d 80 (1973).
Id.
Id.
Nykreim, 105 Wn. App. at 362.
Br. of Pet’r at 26-28.
Nykreim, 105 Wn. App. at 362.
Larsen, 94 Wn. App. at 385.
Id. at 387.
Id. at 388.
Id. at 389-90 (citing RCW 36.700.030(1), .040(3)).
Id. at 390-91.
Id. at 392.
78 Wn. App. 370, 380, 898 P.2d 319, review denied, 128 Wn.2d 1003 (1995).
Larsen, 94 Wn. App. at 392 (finding the action in Brutsche commenced 73 days after enactment of the zoning ordinances was untimely under the reasonable-time-by-analogy analysis) (quoting Brutsche, 78 Wn. App. at 376).
Id., (citing Concerned Organized Women & People Opposed to Offensive Proposals, Inc. v. City of Arlington, 69 Wn. App. 209, 217-18, 847 P.2d 963, review denied, 122 Wn.2d 1014, 863 P.2d 73 (1993); City of Federal Way v. King County, 62 Wn. App. 530, 538, 815 P.2d 790 (1991); and Deschenes v. King County, 83 Wn.2d 714, 717, 521 P.2d 1181 (1974)).
Id. at 393 (“As the superior court recognized, applying Brutsche’s bright-line rule to this situation would allow a landowner to avoid any judicial review by obtaining a building permit and waiting 30 days before beginning construction.”).
Id. at 393.
Id.
Br. of Resp’t at 16-18.
Larsen, 94 Wn. App. at 393.
Id., at 392-93.
See Clerk’s Papers at 244, 376.
Wenatchee Sportsmen Ass’n v. Chelan County, 141 Wn.2d 169, 175, 4 P.3d 123 (2000).
Id. at 174.
Id.
Id. at 181-82. The 1998 plat application conformed to the zoning requirements notwithstanding the rezone approval later characterized as improper.
Id. at 180-82 (citations omitted).
Id. at 181.
Id.
State v. Johnson, 104 Wn.2d 179, 181, 703 P.2d 1052 (1985).
State v. Chapman, 140 Wn.2d 436, 450, 998 P.2d 282 (2000) (citing State v. Chester, 133 Wn.2d 15, 21, 940 P.2d 1374 (1997)).
State ex rel. Madden v. Pub. Util. Dist. No. 1 of Douglas County, 83 Wn.2d 219, 222, 517 P.2d 585 (1973) (citation omitted).
Geschwind v. Flanagan, 121 Wn.2d 833, 841, 854 P.2d 1061 (1993) (citing State v. Pike, 118 Wn.2d 585, 591, 826 P.2d 152 (1992)).
Nykreim, 105 Wn. App. at 361.
RCW 36.70C.020(1) (emphasis added).
In 2000 Chelan County amended the Subdivision Resolution to establish clear procedures for application, review, consideration, and appeals of BLA. Now appeals under Section 980 provides for quasi-judicial review of an administrator’s decision to the Chelan County Hearing Examiner within 21 days from the date of the written decision. It limits standing to the applicant, the owner of the property on which the subdivision is proposed, any owner entitled to special notice under RCW 58.17.090, or any aggrieved property owner who will suffer direct or substantial impacts from the proposed short division. See Chelan County Resolution Number 2000-128 amended by Resolution Number 2000-200 (Dec. 26, 2000).
Section 200 reads: “Land, as a unit for determining subdivision, means all contiguous real property in one ownership, but not including parcels of record prior to the adoption of this ordinance and not including parcels separated by a public road or stream in excess of 20 cubic feet per second mean annual flow. A parcel shall be considered of record if recorded in the office of the Chelan County Auditor and if the disposition of said parcel is in conformance to the subdivision regulation in force at the time of the filing.”
Chelan County Code required property owners to proceed under Subdivision Resolution, Article I, Section 100, when dividing land into two or more parcels or tracts in the unincorporated areas of Chelan County. RCW 58.17.040(6) provides: “A division made for the purpose of alteration by adjusting boundary lines, between platted or unplatted lots or both, which does not create any addition lot, tract, parcel, site, or division nor create any lot, tract, parcel, site, or division which contains insufficient area and dimension to meet minimum requirements for width and area for a building site[.]” (Emphasis added.)
Similar to RCW 58.17.040, Section 302 exempted BLA between lots from subdivision laws. Section 302 adopted the definition of “lot” contained in RCW 58.17.020(9): “[A] fractional part of divided lands having fixed boundaries, being of sufficient area and dimension to meet minimum zoning requirements for width and area. The term shall include tracts or parcels.” Article II, Section 200 of the Chelan County Subdivision Resolution used the same definition.
Nykreim, 105 Wn. App. at 350.
Id.
RCW 36.70C.130(1)(d).
RCW 36.70B.020(4) (emphasis added).
See State ex rel. Craven v. City of Tacoma, 63 Wn.2d 23, 385 P.2d 372 (1963); Mission Springs, Inc. v. City of Spokane, 134 Wn.2d 947, 960-61, 954 P.2d 250 (1998).
Ch. 7.16 RCW.
Madden, 83 Wn.2d at 222.
Id. (citations omitted).
Black’s Law Dictionary 673 (4th ed. 1968) (defining exclusive as “[alppertaining to the subject alone, not including, admitting, or pertaining to any others”).
Br. of Resp’t at 14-15.
Skamania County v. Columbia River Gorge Comm’n, 144 Wn.2d 30, 49, 26 P.3d 241 (2001); Wenatchee Sportsmen Ass’n v. Chelan County, 141 Wn.2d 169, 175, 4 P.3d 123 (2000); Deschenes v. King County, 83 Wn.2d 714, 716, 521 P.2d 1181 (1974).
Skamania County, 144 Wn.2d at 49, (alterations in original) (quoting Deschenes, 83 Wn.2d at 717).
Wenatchee Sportsmen Ass’n, 141 Wn.2d at 181-82.
RCW 36.70C.010 (emphasis added).
See id.
Br. of Amici Curiae of Building Industry Association of Washington, Washington Land Title Association, Washington Association of Realtors, and Washington State Farm Bureau at 11-12.
W. Main Assocs. v. City of Bellevue. 106 Wn.2d 47, 51, 720 P.2d 782 (1986).
RCW 36.70C.060.
Br. of Resp’t at 20-21.
RCW 36.700.020(3).
RCW 36.70C.060(2).
Suquamish Indian Tribe v. Kitsap County, 92 Wn. App. 816, 828, 965 P.2d 636 (1998).
Id. at 829 (RCW 34.05.530).
Id.
Id. at 829-30.
Id. at 832.
Biermann v. City of Spokane, 90 Wn. App. 816, 820, 960 P.2d 434 (1998), review denied, 137 Wn.2d 1004 (1999) (citing Vovos v. Grant, 87 Wn.2d 697, 699, 555 P.2d 1343 (1976)).
Intervenor Pis.’ Reply in Supp. of PL’s Mot. for Partial Summ. J. at 3.
Biermann, 90 Wn. App. at 820 (finding a sufficient interest to merit standing where Appellant’s health, safety and comfort were directly affected by proposed construction of garage).
Skamania County v. Columbia River Gorge Comm’n, 144 Wn.2d 30, 26 P.3d 241 (2001).
Id. at 43-45. See 16 U.S.C. § 544.
Clerk’s Papers, at 48-50.
The director’s decision was entered on May 19, 1997. On July 27, 1998 the Gorge Commission ordered the County to resolve the violation.
Id. at 47.
Petitioners’ property lies in the Forest Resource Zoning District. The resulting lots created by the proposed BLA were less than the minimum lot size, 20 acres, as required by the Forest Resource district.
See Seattle Bldg. & Constr. Trades Council v. State Apprenticeship & Training Council, 129 Wn.2d 787, 797, 920 P.2d 581 (1996).
Id. at 797 (quoting Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399, 107 S. Ct. 750, 93 L. Ed. 2d 757 (1987)).
Id. (quoting St. Joseph Hosp. v. Dep’t of Health. 125 Wn.2d 733, 739-40, 887 P.2d 891 (1995)).
A BLA application was approved after the Planning Director was satisfied that all BLA criteria were met, including compliance with all requirements and regulations of the Zoning Code of Chelan County. Clerk’s Papers at 243-44, 427.
RCW 36.70C.060(2)(d); Ward v. Bd. of County Comm’rs, 86 Wn. App. 266, 270-71, 936 P.2d 42 (1997).
RCW 36.70C.020(1); Estate of Friedman v. Pierce County, 112 Wn.2d 68, 79, 768 P.2d 462 (1989).
Ward, 86 Wn. App. at 271 (citing S. Hollywood Hills Citizens Ass’n v. King County, 101 Wn.2d 68, 73, 677 P.2d 114 (1984)).
Dissenting Opinion
(dissenting) — The majority concludes that the challenge of Chelan County (County) and the intervening parties (Neighbors) to Michael and Laurie Nykreim, Rick and Vickie Whitney, and William and Jane Kelly’s (Nykreim) boundary line adjustment (BLA) is time-barred because it was not filed within the prescribed 21 days for filing petitions for judicial review of land use decisions under the Land Use Petition Act (LUPA), chapter 36.70C RCW. In reaching that conclusion, the majority holds that, under LUPA, County had standing to challenge the validity of its own BLA decision. I disagree with that
I
The essential facts are undisputed. In July 1997, Nykreim purchased as tenants in common approximately 40 acres of land near Leavenworth. The northwest corner of this property is traversed at one location by Icicle Road and at another location by Icicle Creek. Although the deed to the property described the property as a single parcel, Nykreim applied to County to adjust the boundaries of three purported “parcels” within the property. A map accompanying Nykreim’s application showed three existing, irregular parcels denominated: “Old Parcel C” located at the northwest comer of the property and covering land north of Icicle Road; “Old Parcel B” spanning the portion of land between Icicle Road and Icicle Creek; and “Old Parcel A” describing the remainder of the property.
In October 1997, the director of County’s Planning Department, John Harrington, approved Nykreim’s BLA application by signing a “certificate of exemption,” which exempted the BLA from Chelan County Subdivision Resolution requirements.
Seven months later, in May 1998, Neighbors first learned of the BLA when Nykreim applied for a conditional use permit to construct three new homes—one on each “new” parcel of land. Neighbors appeared at a Design Review Committee hearing in July 1998 to voice their objections to the new boundary lines and raise concerns about the validity of the BLA. Shortly thereafter, one of the neighbors, an attorney, wrote a letter to Harrington in which he claimed that the BLA was illegal. The County Planning Department responded to the letter by indefinitely postponing the design review hearing. On August 25, 1998, the Planning Department officially withdrew Nykreim’s certificate of exemption.
Approximately three months after revoking Nykreim’s BLA, County filed an action for declaratory judgment asserting that Nykreim’s BLA and the notices of title were invalid. Neighbors sought to intervene in support of County
II
In reaching its conclusion that County’s challenge to Nykreim’s BLA is time-barred, the majority holds that LUPA applies to ministerial land use decisions of government planning agencies. Although I question the correctness of that holding for the reason that a person aggrieved by a ministerial decision will likely not have notice or actual knowledge of the decision within the time for appeal, I do not believe that it is necessary for us to decide here whether LUPA applies to ministerial land use decisions. I reach that conclusion because County cannot be viewed as a party “aggrieved or adversely affected” by its own land use decision. See RCW 36.70C.060.
Although the majority observes that an “aggrieved or adversely affected” person “in the context of land use decisions [generally] refer [s] to parties other than government entities” (majority at 935), it concludes that County was sufficiently prejudiced by its own BLA decision so that the “aggrieved or adversely affected” person element necessary for standing was satisfied. In support of that conclusion the majority relies on our decision in Skamania County v. Columbia River Gorge Commission, 144 Wn.2d 30, 26 P.3d 241 (2001), where we concluded that the Columbia River Gorge Commission, a government entity, was “undeniably an ‘entity’ that [was] ‘adversely affected’ by a final county land use decision in conflict with the [Columbia River Gorge National Scenic Area] Act, [16 U.S.C. § 544].” Id. at 47. The majority posits that like the Gorge Commission in Skamania County, “Chelan CountyO can be prejudiced or injured by the erroneous interpretation and application of law of its own agent, its Director of Planning.” Majority at 936.
In my view, the majority’s analysis is incorrect because it fails to recognize that in Skamania County the Gorge Commission was not challenging its own decision. Rather, it sought to invoke its statutory authority to either “modif[y], terminate 0, or set aside” or to “enforce” a Skamania County land use decision. Skamania County, 144 Wn.2d at 37, 46. That distinction is, in my judgment, very significant to this case for two reasons. First, 16 U.S.C. § 544(m)(a) specifically vests the Gorge Commission with the authority to “modify, terminate, or set aside” and to “enforce” a county’s final land use decision, whereas LUPA contains no similar provision with respect to County. What is more significant is that, contrary to the majority’s suggestion, Skamania County was not seeking to challenge its own decision. Indeed, Skamania County was a defendant in the enforcement action brought by the Gorge Commission. Although I agree with the majority that one government entity may be
The view that I espouse, that County lacked standing to seek judicial review of its own decision, is consistent with the reasoning employed by the United States Supreme Court in Director, Office of Workers’ Compensation Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 115 S. Ct. 1278, 131 L. Ed. 2d 160 (1995). There the Court said that the “status of the Government as a statutory beneficiary .. . must be sharply distinguished from the status of the Government as regulator or administrator.” Id. at 128. It then indicated that a government agency acting within its regulatory or administrative capacity should not be conferred standing “under an ‘adversely affected or aggrieved’ statute [because to confer such standing] would put the . . . courts into the regular business of deciding intrabranch and intraagency policy disputes—a role that would be most inappropriate.” Id. at 129.
The reasoning of the Supreme Court in Newport News Shipbuilding makes sense to me. In my opinion, we should be reluctant to place the courts in a position of reviewing agency policy decisions. After all, deference is due to a government agency’s decision in areas of its expertise. Unfortunately, the majority confers standing to any government entity wishing to appeal its own land use decision under LUPA. It also subjects that entity to LUPA’s 21-day time bar. This result flies in the face of the government’s inherent power to enforce its zoning laws. Furthermore, it is fatal to any future modification or withdrawal of a planning decision in cases where the government planning agency, like County, has failed to appeal its own land use decision. Although certainly not intended, the majority’s decision may force an absurd result, i.e., agencies appealing decisions they make in good faith simply in order to avoid being foreclosed from changing the decision after 21 days if
Ill
While the merits of this case can be resolved with respect to Chelan County alone, I believe that brief mention of the position of Neighbors, as intervenors, is warranted.
IV
In sum, I agree with the Court of Appeals that LUPA does not apply here because County was not aggrieved or adversely affected by its own decision. I would hold, therefore, that the 21-day limit for appeals does not apply to County’s
Johnson, Madsen, and Owens, JJ., concur with Alexander, C.J.
The approximate sizes of “old” parcels A, B, and C were 33.5 acres, 4 acres, and 2.5 acres, respectively. Clerk’s Papers (CP) at 393.
The approximate sizes of Nykreim’s “new” parcels A, B, and C are 18.5 acres, 10.7 acres and 10.7 acres, respectively. CP at 394.
RCW 58.17.010 states in relevant part that “the process by which land is divided is a matter of state concern and should be administered in a uniform manner by cities, towns, and counties throughout the state.” Pursuant to RCW 58.17.040(6), the Chelan County Code specifically exempts BLAs from the
RCW 58.17.040(6) sets forth exemptions for BLAs from subdivision regulations and requirements. It states that requirements of chapter 58.17 RCW do not apply to “[a] division made for the purpose of alteration by adjusting boundary lines, between platted or unplatted lots or both, which does not create any additional lot, tract, parcel, site, or division nor create any lot, tract, parcel, site, or division which contains insufficient area and dimension to meet minimum requirements for width and area for a building site.”
Chapter 58.17 RCW vests local authorities with the power to establish their own procedures for review of boundary line adjustments. During the relevant period, County adopted no defined review procedures, e.g., notice or hearing requirements, with regard to its BLA decisions.
LUPA contains a 21-day limitation period from the date of issuance in which to appeal land use decisions. RCW 36.70C.040(3).
Under LUPA, standing to bring a land use petition is limited to the applicant or property owner to whom the land use decision is directed or to a person aggrieved or adversely affected by the land use decision. Pursuant to that statute, “[a] person is aggrieved or adversely affected ... when all of the following conditions are present:
“(a) The land use decision has prejudiced or is likely to prejudice that person;
“(b) That person’s asserted interests are among those that the local jurisdiction was required to consider when it made the land use decision;
“(c) A judgment in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the land use decision; and
“(d) The petitioner has exhausted his or her administrative remedies to the extent required by law.” RCW 36.70C.060(2).
An intervenor is “as much a party to the action as the original parties, and renders himself vulnerable to complete adjudication of the issues in litigation between himself and the adverse party.” 59 Am. Jur. 2d Parties § 170 (1987) (footnotes omitted). However, final adjudication of an intervenor’s legal rights may depart from those of the original parties. 59 Am. Jur. 2d Parties § 174 (1987).
Applying LUPA to this case raises due process concerns by denying Neighbors, as adversely affected property owners, an opportunity to assert their interests. See, e.g., Larsen v. Town of Colton, 94 Wn. App. 383, 973 P.2d 1066 (1999).
See Larsen, 94 Wn. App. at 391 (interests of adjacent property owners are not intended or required to be considered by the City in issuing building .permits); see also RCW 36.70C.060.
