Allenbach v. City of Tukwila
| Decision Date | 16 February 1984 |
| Docket Number | No. 49405-3,49405-3 |
| Citation | 101 Wn.2d 193,676 P.2d 473 |
| Parties | Herman M. ALLENBACH, Respondent, v. The CITY OF TUKWILA, Mayor Gary Van Dusen, and Planning Director, Bradley Collins, Appellants. |
| Court | Washington Supreme Court |
LeSourd, Patten, Fleming, Hartung & Emory, Lawrence E. Hard, Daniel D. Woo, Jeffrey C. Wishko, Seattle, for appellants.
Haggard, Tousley & Brain, Joel Haggard, William H. Block, Seattle, for respondent.
In 1977, the City of Tukwila began serious discussions regarding changes in its comprehensive code. During this time, it adopted a building permit moratorium imposing a special waiver process on all building permit applications within the geographic area of the environmental basemap of the Tukwila comprehensive land use policy plan. This moratorium was extended three times through December 1, 1980.
During the fall of 1981, respondent Dr. Herman M. Allenbach entered into an earnest money agreement to purchase property known as Slade Way in Tukwila. The property is located at the I-5/I-405 interchange, close to the heavily developed commercial area of Southcenter. At the time, the property was zoned for multi-family development.
Allenbach was aware of the potential downzoning of the property. He believed, however, that once the Tukwila City Council became aware of its undesirability for single-family development, the proposed downzone would be rejected.
During Allenbach's preparation of engineering analyses and construction of a model development, the building permit moratorium previously imposed by Tukwila expired, and it wasn't subsequently extended.
On March 16, 1982, the Tukwila City Council passed ordinance 1247 which, among other actions, downzoned Allenbach's property to single-family residential.
Allenbach, in preparing his permit application, expended in excess of $17,000 on engineering, consulting and legal fees as well as model costs, not including land costs.
Ordinance 1247 became effective on May 4, 1982. One day before, Allenbach filed his building permit application. The parties stipulated that the type of development sought by the permit application was permitted under the zoning code in effect at the time the permit application was filed. They further stipulated that the application was substantially complete and complied with Tukwila's applicable codes and regulations.
Tukwila refused to process Allenbach's building permit application, maintaining that the filing of such application, with knowledge that the intended development would be a legal nonconforming use under ordinance 1247, constituted bad faith which it claimed was an exception to the vested rights rule and justified Tukwila's refusal to process the subject permit application.
The trial court issued a writ of mandamus ordering Tukwila to process Allenbach's permit application under the zoning in effect on the date the application was filed. That processing includes environmental review and the imposition by Tukwila of appropriate conditions.
Does a building permit applicant have a vested right to process his or her permit application under zoning in effect on the date application is filed?
The issue in this case was fully disposed of in State ex rel. Hardy v. Superior Court, 155 Wash. 244, 284 P. 93 (1930) () and State ex rel. Ogden v. Bellevue, 45 Wash.2d 492, 275 P.2d 899 (1954) ().
In Hardy, certain land owned by a Mr. Berlin was zoned residential. By ordinance passed November 12, 1929 and effective December 21, 1929, the City Council reclassified the land for business use. Neighboring landowners challenged the zoning reclassification. On December 23, 1929, the Seattle City Council passed an ordinance revoking the business classification and restoring the residential classification. Under state law, however, the ordinance could not become effective until 30 days after it had been signed by the Mayor. Thus, after December 26, Berlin was faced with a situation in which his land was temporarily classified for business but was also subject to a "pending ordinance," restoring its residential classification to become effective January 25, 1930.
The neighbors successfully secured an injunction against any building permit that might be sought during this interim period, from the superior court.
The Supreme Court reversed, holding that the landowner's rights must be based on the ordinance in effect on the date he seeks his permit, not an ordinance that is merely passed but not yet effective.
A statute speaks from the time it goes into operation and not from the time of passage.
* * *
Prior to January 25, 1930, no rights may be acquired under the last ordinance, which was passed by the council December 23, 1929, nor is that ordinance operative before that date to divest the relators of such rights as they may have under the terms of the November ordinance.
(Italics ours.) Hardy, 155 Wash. at 248-49, 284 P. 93. This court squarely held that a permit applicant was entitled to processing of his application under the ordinance in effect at the time of his application.
In State ex rel. Ogden v. Bellevue, 45 Wash.2d 492, 496, 275 P.2d 899 (1954), we stated:
An owner of property has a vested right to put it to a permissible use as provided for by prevailing zoning ordinances. The right accrues at the time an application for a building permit is made. State ex rel. Hardy v. Superior Court, supra. The moves and countermoves of the parties hereto by way of passing ordinances and bringing actions for injunctions, should and did avail the parties nothing. A zoning ordinance is not retroactive so as to affect rights that have already vested. State ex rel. Hardy v. Superior Court, supra.
(Italics ours.)
Under Ogden, a building permit applicant has a vested right to processing of his application under the zoning in effect at the time his application is filed, and under Hardy the existence of a reclassifying ordinance, passed but not yet effective, does not affect the vesting of the applicant's rights. In every subsequent case since Hardy and Ogden, this court has adopted the zoning concept of these two cases.
In Hull v. Hunt, 53 Wash.2d 125, 331 P.2d 856 (1958), the defendant applied for a building permit on January 16, 1958, just days before the Seattle City Council passed a zoning ordinance imposing building height limitations that would prevent construction of the proposed project. A permit based upon the application was issued the day before the new zoning went into effect. Id., at 128, 331 P.2d 856. Neighboring property owners sought an injunction. In rejecting the challenge, this court noted that the general rule in the United States is that permits for buildings are not per se protected against revocation by subsequent zoning, except where a permittee has changed his position in reliance on the permit before the zoning ordinance is enacted. Thus, under that rule, the courts in each instance must hold a trial on the issue of a "change in position" (or "good faith reliance"). See Hull, at 128-29, 331 P.2d 856.
This court recognized that in Hull, at page 129, 331 P.2d 856, "[t]here is no showing in the present case of any action taken, or use exercised under the permit before the amendment to the zoning ordinance." Under the "change in position" rule, the applicant's rights would not have vested. Nevertheless, the court declined to impose "substantial change of position" or "good faith reliance". Instead, the court adopted a "date of application" test that avoids the morass and uncertainties of trial on "good faith" and "reliance". The court held:
Notwithstanding the weight of authority, we prefer to have a date certain upon which the right vests to construct in accordance with the building permit. We prefer not...
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Table of Cases
...145 Wash. 571, 261 P. 96 (1927): 19.2(12)(d) Allen v. State, 118 Wn.2d 753, 826 P.2d 200 (1992): 19.5(7) Allenbach v. City of Tukwila, 101 Wn.2d 193, 676 P.2d 473 (1984): 10.5(7)(d) Alliance Inv. Grp. of Ellensburg, LLC v. City of Ellensburg, 189 Wn. App. 763, 358 P.3d 1227 (2015): 17.3(1) ......