James v. Kitsap CountyJames v. Kitsap County
- Reporters:
- , ,
- Before:
- Johnson
Lead Opinion
FACTS AND PROCEDURAL HISTORY
¶2 In 1977, prior to the enactment of the GMA, the County adopted a comprehensive plan under the Planning Enabling Act, chapter 36.70 RCW, which contained a capital facilities plan element providing the capital facility improvements necessary to serve new development in Kitsap County. In 1994, the County began drafting a new comprehensive plan in order to comply with the requirements of the newly enacted GMA. The County was required to adopt GMA-compliant regulations by December 1994. The County first attempted to comply with the GMA in a comprehensive plan adopted by Kitsap County Ordinance 169-1994 in December 1994 and, like the 1977 plan, it contained a capital facilities plan element. Clerk’s Papers (CP) at 404.
¶3 In October 1995, the Central Puget Sound Growth Mаnagement Hearings Board (GMHB) invalidated the County’s 1994 Comprehensive Plan. CP at 57-153. Among other things, the GMHB found the County’s plan incompíete under
¶4 In 1991, the County adopted an impact fee ordinance to aid in funding the capital facility improvements identified in the County’s 1977 Comprehensive Plan pursuant to
¶5 After the GMHB ruling in October 1995, the County no longer required applicants seeking building permits to pay impacts fees; and, rather than imposing a moratorium on development, it required applicants to sign an agreement whereby the applicant promised to pay impact fees in the future whеn the County had a comprehensive plan fully compliant with the GMA. These agreements were converted by the County into liens on the applicants’ property. The County also allowed applicants to pay the impact fees if the applicants requested to do so. However, the County did not spend any of these impact fees and held the funds in separate accounts for the parks department and the public works department. CP at 406-07.
¶6 In March 2000, the GMHB found the 1998 Comprehensive Plan to be fully compliant with the GMA, and the County again began requiring applicants seeking building permits to pay impact fees at the time it issued building permits. The County also began enforcing the impact fee agreements made between it and applicants during the timе of the County’s noncompliance. CP at 407.
f 7 In September 1999, the Developers filed a claim with the County, and, in November 1999, the Developers filed a class action lawsuit against the County in Kitsap County Superior Court. CP at 3-15. The Developers sought a judgment against the County for the amount of the impact fees incurred as an obligation to pay park and road impact fees and for impact fees paid to the County by Developers. In August 2002, the County and the Developers filed cross motions for
¶8 The trial court granted the Developers’ motion for summary judgment, ordering the County to pay the Developers who had paid the impact fees at the time of application and the Developers who had paid the County subsequent to a lien agreement. The trial court also enjoined the County from continuing to maintain recorded, unpaid lien agreements on property owned or formerly owned by the Developers. CP at 1488-89. The Developers were awarded a total judgment of $3,346,506, including prejudgment interest. CP at 1592.
¶9 The County filed an appeal of the judgment directly with this court.
ANALYSIS
¶10 Summary judgment is rendered where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. CR 56(c). When reviewing an order for summary judgment, an appellate court engages in the same inquiry as the trial court. Denaxas v. Sandstone Court of Bellevue, L.L.C.,
¶11 The central issue in this case is whether the imposition of impact fees as a condition on the issuance of a building permit is a “land use decision” subject to the procedural requirements of LUPA. The County argues that the trial court erred in granting the Developers’ motion for summary judgment because the Developers failed to exhaust their administrative remedies and because they are time-barred under LUPA. Additionally, the County claims that the Developers are independently barred from receiving a refund of their impact fees because they failed to pay under protest. In the alternative, the County argues the doctrine of equitable estoppel bars the Developers’ claims. The Developers contend that their request for a refund of their impact fees is subject to a three-year statute of limitations because the imposition of impact fees are revenue decisions, not land use decisions.
¶12 In 1990 and 1991, the legislature enacted the GMA, which provided that counties containing either a high population or a high population growth, meeting specific criteria, were required to conform with its provisions.
¶13 One of the principal goals of the GMA is to “[e]n-sure that those public facilities and services necessary to support development shall be adequate to serve the development at the time the development is available for occupancy and use without decreasing current service levels below locally established minimum standards.”
¶14 In chapter 82.02 RCW, the legislature places several limitations on the calculation and imposition of impact fees, see
Impact fees may be collected and spent only for the public facilities defined inRCW 82.02.090 [5 ] which are addressed by a capital facilities plan element of a comprehensive land use plan adopted pursuant to the provisions ofRCW 36.70A.070 or the provisions for comprehensive plan adoption contained in chapter 36.70, 35.63, or 35A.63 RCW. After the date a county, city, or town is required to adopt its develоpment regulations under chapter 36.70A RCW, continued authorization to collect and expend impact fees shall be contingent on the county, city, or town adopting or revising a comprehensive plan [element] ....
¶15 Chapter 82.02 RCW also provides mechanisms by which permit applicants may challenge the impact fees imposed or receive a refund of impact fees paid. First,
¶[16 In 1995, the legislature enacted LUPA, with the purpose “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.”
¶17 We first address whether the imposition of an impact fee as a condition on the issuance of a building permit is a “land use decision” under LUPA. The County argues the Developers’ action for a refund is time barred under LUPA because the Developers failed to challenge the impact fees imposed within 21 days of the issuance of the building permit. The Developers claim the imposition of impact fees is a revenue decision, not a land use decision, subject to a three-year statute of limitations. We find that the imposition of impact fees as a condition on the issuance of a building permit is a “land use decision” subject to the time requirements of
¶18 We have previously held that building permits are “land use decisions” subject to the procedural requirements of LUPA. In Chelan County v. Nykreim, we examined whether approval of a boundary line adjustment (BLA) application issued by a county officer was a “land use decision” under LUPA.
¶19 We found Chelan County’s action time barred and held that LUPA applies to both ministerial and quasi-judicial land use decisions. At the time the application was approved by the administrator of the Chelan County Planning Department, no clearly defined procedures existed for consideration and review of BLA decisions. Additionally, the administrator who granted Nykreim’s BLA application was the Chelan County officer with the highest authority to make the final determination on the application. In concluding that ministerial determinations, like the officer’s approval of Nykreim’s BLA, are ‘land use decisions,” we specifically noted that building permits are ministerial decisions which are subject to judicial review under LUPA, relying on Wenatchee Sportsmen Ass’n v. Chelan County,
¶20 In Wenatchee Sportsmen, we determined 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 the rezone in a later [action].”
¶21 We determined that Wenatchee Sportsmen Association’s challenge to the legality of Chelan County’s rezone was barred under LUPA because the decision was not challenged within 21 days. We found that “[b]ecause
¶22 Furthermore, after the enactment of LUPA, we have not reviewed the validity of conditions imposed on the issuance of a permit separate from the review provided in chapter 36.70C RCW. For instance, in Isla Verde International Holdings, Inc. v. City of Camas,
¶23 Consistent with our holdings in Isla Verde, Nykreim, and Wenatchee Sportsmen, we find that the imposition of impact fees as a condition on the issuance of a building permit is a land use decision and is not reviewable unless a party timely challenges that decision within 21 days of its issuance. As stated in Isla Verde, development conditions “must be tied to a specific, identified impact of a development on a community,”
¶24 The Developers’ complaint indicates they are challenging the legality of the County’s action of imposing impact fees in the period of time that the County’s comprehensive plan was noncompliant with the GMA. However, as decided in Wenatchee Sportsmen, the County’s imposition of impact fees as a condition on issuance of building permits became valid once the opportunity passed to challenge those decisions. LUPA bars review of a land use decision if a challenge to that decision is not brought within 21 days of its issuance. The issue of whether the County improperly imposed impact fees as a condition on the issuance of building permits is no longer reviewable.
¶25 At no time have the Developers argued they are not subject to the procedural requirements of LUPA because their claims fall within one of the exceptions enumerated in
¶26 Article IV, section 6 of the Washington State Constitution provides that the “superior court shall have original jurisdiction in all cases at law which involve the title or possession of real property, or the legality of any tax, impost, assessment, toll, or municipal fine.” In Henderson Homes, we held that a three-year statute of limitations applies
¶27 Applying the procedural requirements of LUPA to challenges to the legality of impact fees imposed does not divest the power of the superior court to exercise its original jurisdiction under article IV, section 6.
¶28 Thus, while a superior court may be granted power to hear a case under article IV, section 6, that grant does not obviate procedural requirements established by the legislature. Article TV, section 6 pertains to both original trial jurisdiction and original appellate jurisdiction. Here, a LUPA action may invoke the original appellate jurisdiction of the superior court, but congruent with the explicit objectives of the legislature in enacting LUPA, parties must substantially comply with procedural requirements bеfore a superior court will exercise its original jurisdiction.
¶29 The Developers here were provided, by statute, with several avenues to challenge the legality of the impact fees imposed by the County and comply with the procedural requirements under chapter 82.02 RCW and LUPA. First,
¶30 As we stated in Nykreim, this court has long recognized the strong public policy evidenced in LUPA, supporting administrative finality in land use decisions.
¶31 Our conclusion here is consistent with one of the principal goals of the GMA, which is to “[e]nsure that those public facilities and services necessary to support development shall be adequate to serve the development at the time the development is available for occupancy and use without decreasing current service levels below locally established minimum standards.”
CONCLUSION
¶32 We reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.
Notes
The GMHB specifically concluded that “the Plan’s capital facilities element does not comply with the [GMA], nor can the Plan’s land use element since the two elements are inextricably linked.” CP at 135.
In January 2001, the County moved for summary judgment, claiming that it complied with
Developers initially cross-appealed the trial court’s denial of the Developers’ request for attorney fees, but the Developers have since abandoned that appeal. See Br. of Resp’t’s at 49.
In chapter 82.02 RCW, the legislative explicitly stated:
(1) It is the intent of the legislature:
(a) To ensure that adequate facilities are available to serve new growth and development;
(b) To promote orderly growth and development by establishing standards by which counties, cities, and towns may require, by ordinance, that new growth and development pay a proportionate share of the cost of new facilities needed to serve new growth and development; and
(c) To ensure that impact fees are imposed through established procedures and criteria so that specific developments do not pay arbitrary fees or duplicative fees for the same impact.
“(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, the environmental and land use 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. If one or more claims for damages or compensation are set forth in the same complaint with a land use petition brought under this chapter, the claims are not subject to the procedures and standards, including deadlines, provided in this chapter for review of the petition. The judge who hears the land use petition may, if appropriate, preside at a trial for damages or compensation.”
The Developers discussion of this issue is limited, and they provide no support for their argument that the statute of limitations, to challenge the legality of impact fees imposed as a condition the issuance of a building permit, should be governed by
Dissenting Opinion
¶33 (dissenting) — The majority claims Kitsap County need not disgorge $3,346,506 unlawfully exacted from developers because the developers’ suit for refund was filed more than 21 days after the land use decisions in question.
¶34 From the outset the majority posits the question as:
[W]hether the imposition of impact fees as a condition on the issuance of a building permit is a “land use decision” subject to procedural requirements of the Land Use Protection Act (LUPA), chapter 36.70C RCW.
Majority at 577. The majority answers yes, but gives the right answer to the wrong question.
¶35 The proper question is whether the developers’ suit for a refund of these impact fees is barred by the 21-day rule applicable to land use petitions through RCW 36-.70C.040(3).
¶36 That is the correct answer because the statute at issue, the Land Use Petition Act, specifically provides:
Chapter exclusive means of judicial review of land use decisions-Exceptions. (1) 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:
(c) Claims provided by any law for monetary damages or compensation. If one or more claims for damages or compensation are set forth in the same complaint with a land use petition brought under this chapter, the claims are not subject to the procedures and standards, including deadlines, provided in this chapter for review of the petition. The judge who hears the land use petition may, if appropriate, preside at a trial for damages or compensation.
¶37 Although this statute is a complete refutation to the majority’s claim that all actions arising from a “land use decision” as defined in
¶38 Prior to the enactment of the LUPA statute, it was possible to either attack a land use decision through a statutory or constitutional writ of certiorari or maintain an action for monetary relief, or both. These actions could be pursued separately or consolidated.
¶39 However, an action challenging a land use decision through a writ of certiorari was problematic for a number of reasons, including uncertainty of when the petition for writ had to be served and filed, the necessary parties, etc. Therefore the legislature attempted to bring clarity, uniformity, and timely certainty to the resolution of permitting disputes through the enactment of LUPA, which expressly, and only, replaces the writ of certiorari.
¶40 Under thе prior regime there was never a legal requirement or necessity to initiate and prevail in a certiorari proceeding as a condition precedent to recovery of monetary relief, nor did the plaintiffs do so in Henderson Homes, Inc. v. City of Bothell,
¶41 There the plaintiffs were three companies which developed residential subdivisions within the city of Bothell. The city required the plaintiffs to pay it $400 per lot as a park-impact mitigation fee to satisfy a city-imposed preliminary plat approval condition. The suit was commenced slightly less than three years from the first impact fee payment. Bothell, however, argued that “the suit was time barred by a 30-day limitation in the platting statute.” Id. at 241. The trial court rejected the city’s argument, ordering a refund of the fees. The Court оf Appeals, however, reversed, holding that the 30-day statute of limitations in former
This court has consistently held that the 3-year statute of limitations,RCW 4.16.080(3) , applies to actions to recover invalid taxes. The same principle applies to fees or charges, direct or indirect, on the subdivision of land when they do not comply withRCW 82.02.020. The underlying rationale for applying the 3-year statute is solidly grounded and long established. Such suits “are actions arising out of implied liabilities to repay money unlawfully received”. Adams Cy. v. Ritzville State Bank,154 Wash. 140 , 144,281 P. 332 (1929). We applied the 3-year statute to a refund claim for an invalid tax as recently as Robinson v. Seattle,119 Wn.2d 34 , 83,830 P.2d 318 , cert. denied,121 L. Ed. 2d 598 (1992).
Id. at 248. Therefore the three-year statute of limitations clearly applies to the nearly identical claim for a refund asserted in this action absent an intervening statute changing the rule. LUPA, however, does not change the rule because, “land use decision” or not, this chapter “does not apply to . . . [c]laims provided by any law for monetary damages or compensation.”
142 The majority cites no case seeking monetary relief from any court of this state which has been barred under the LUPA statute. There is none. The majority makes it up as it goes along.
|43 The majority also claims
At no time have the Developers argued that they are not subject to the procedural requirements of LUPA because their claims fall within one of the exceptions enumerated inRCW 36.70C.030(1) . Rather, the Developers argue they are not subject to the 21-day time limitation of LUPA because the superior court has original jurisdiction here under article IV, section 6 of the Washington State Constitution.
Majority at 586-87. If they did not make a claim of exception, it is probably because it is not their claim to make. A claim that an aсtion is barred by the statute of limitations is an affirmative defense which must be pleaded and proved by the party who asserts it. CR 8(c). These developers never purported to proceed under the LUPA statute; the LUPA statute expressly excepts claims for monetary damage; the developers always proceeded under the general jurisdiction of the courts of this state. Moreover, we will affirm a trial court summary judgment even if the trial court came to the right result for the wrong legal reason (although I believe this trial court was correct). Carey v. Reeve,
¶44 The majority acknowledges that the impaсt fee statutes permit such fees to be paid under protest,
¶45 Further, the majority appears to require that a challenge to an impact fee imposed as a condition of the permit can be brought only by challenging the underlying permit. But this expressly contradicts the administrative рrocedures contained in
¶46
(4) Impact fees may be paid under protest in order to obtain a permit or other approval of development activity.
(5) Each county, city, or town that imposes impact fees shall provide for an administrative appeals process for the appeal of an impact fee; the process may follow the appeal process for the underlying development approval or the county, city, or town may establish a separate appeals process.
¶47
¶48 This is an absurd result which will squander administrative and judicial resources. “We do not interpret statutes to reach absurd and fundamentally unjust results.” Flanigan v. Dep’t of Labor & Indus.,
¶49 Ultimately the majority’s position finds its final repose in its asserted “public policy” to “ensure that local jurisdictions have timely notice of potential impact fee challenges. Without notice of these challenges, local jurisdictions would be less able to plan and fund construction of necessary public facilities.” Majority at 589. This is the real basis for the majority decision — not the law as it exists. I can find no support for this alleged public policy in LUPA nor in our case law. If the majority thinks it is good “public policy” to allow local governments to keep millions of dollars of ill-gotten gains every time a private citizen fails to file suit within 21 days of the event, then the argument should be made to the legislature, not this court. When persons, governments, or other entities unlawfully obtain money from others, I see no reason why they should be able to immunize themselves from liability for their wrongful conduct. Return the money! Certainly the legislature has not spoken to the contrary.
¶50 I therefore dissent.
“The petition is timely if it is filed and served on all parties listed in subsection (2) of this section within twenty-one days of the issuance of the land use decision.”
Shortly after LUPA’s passage, one learned practitioner in a continuing legal education seminar stated “For various reasons, including the fact that little or no discovery is allowed, [LUPA] is not the means to decide claims for monetary damages or compensation.” Patrick J. Schneider, 1995 Regulatory Reform Legislation, in Wash. State Bar Ass’n, Regulatory Reform, and Initiative 164, at 2-23 (Continuing Legal Education, Aug. 1995) (on file with the Wash. State Law Library).
Further, we have generally stated: “A party faced with an exaction of money ... is not required to pay under protest or bring mandamus or other action as a prerequisite to the right of recovery of money so paid.” Puget Sound Alumni of Kappa Sigma, Inc. v. City of Seattle,
In addition, the majority claims that “[t]he Developers have not complied with the procedures provided under .. .
Concurrence Opinion
¶51 (concurring in dissent) — I concur with the dissent in result, but only as to those developers who paid under protest.
Reconsideration denied November 2, 2005.