Ambrose v. City of Montesano

• Decision Date: 25 October 2011
• Docket Number: 40146-1-II
• Court: Washington Court of Appeals
• Parties: PATRICIA L. AMBROSE, Appellant, v. CITY OF MONTESANO, a municipal corporation, and STEVEN HYDE, Respondents.

PATRICIA L. AMBROSE, Appellant, v. CITY OF MONTESANO, a municipal corporation, and STEVEN HYDE, Respondents.

No. 40146-1-II

Court of Appeals of Washington, Division 2

October 25, 2011

UNPUBLISHED OPINION

Hunt J.

Patricia Ambrose appeals the superior court's affirmation of the City of Montesano hearing examiner's revocation of her building permit. Ambrose argues that the hearing examiner (1) erroneously revoked her building permit, based solely on what he deemed to be an improper variance; and (2) lacked authority to consider this issue where the parties had failed to challenge the variance within the requisite 21 days of its issuance in 2006. The City agrees. Agreeing with Ambrose and the City, we reverse the superior court and the hearing examiner's decision to revoke the building permit, order the City to reinstate Ambrose's building permit, and remand to the examiner to consider Hyde's remaining challenges to the building permit.

FACTS

This appeal involves real property located in Montesano Washington (the Property) and zoned "R -1 (Low Density Residential)."^[1] Clerk's Papers (CP) at 8; see also CP at 64-65 (map of property). R-1 zoned lots generally require "[m]inimum side yard[s]" of "ten feet from each side lot line"^[2]; absent a variance, corner lots, however, require minimum side yards of 15 feet. Montesano Municipal Code (MMC) 17.44.027(a). Ambrose's Property is a corner lot.

I. Variance, Boundary Line Adjustment, and Building Permit

In August 2006, Ambrose received a variance reducing the corner Property's required minimum side yards from 15 feet to 6 feet. As part of her variance request, Ambrose submitted a "site map" dated April 6, 2006, showing the property divided horizontally into north and south lots. CP at 12. No one appealed the City's issuance of this variance.

Ambrose then applied for a boundary line adjustment (BLA), apparently seeking to split the Property horizontally, instead of vertically, so that an existing house on the southern portion of the Property would no longer straddle the vertical lot line.^[3] She submitted both an "original" map and a "new" map with her application. CP at 12. Both maps are dated October 10, 2006, but the "original" map shows the Property divided vertically into east and west lots, and the "new" map shows the Property divided horizontally into north and south lots. CP at 12, 64-65. In February 2007, Ambrose received the BLA. No one appealed this BLA.

In August 2007, Ambrose received a building permit to construct a single-family residence on the Property's vacant northern lot.^[4] On September 12, 2008, Ambrose received a renewed building permit. Less than a month later, in October 2008, Steven Hyde^[5] appealed the City's renewal of Ambrose's building permit.

II. Appeal

Hyde argued that Ambrose's building permit renewal "was in violation of zoning, subdivision and related land use codes." CP at 52.

A. Hearing Examiner

On February 11, 2009, a City hearing examiner conducted a public hearing.^[6] CP at 8. Two weeks later, the examiner asked City staff to clarify why the 2006 variance site map depicted the Property as divided into north and south lots while the "original" 2007 BLA site map showed the Property split into east and west lots. CP at 12, 64. The City did not provide an answer to the examiner's inquiry.

Revoking Ambrose's renewed building permit, the hearing examiner noted, "The record is not clear regarding when the lot line between the two parcels was shifted" from a vertical partition (dividing the lots into east and west lots) to a horizontal partition (north and south lots).

CP at 13 (Conclusion of Law (CL) 4). The hearing examiner further stated:

The site plan submitted with [the 2006 variance] indicates that the property line had already been so shifted. However, the map labeled as "original" submitted with the [BLA] shows a north/south orientation for the property line, and the map labeled as "new" shows the east/west orientation. [. . . .] The Examiner can only conclude from the record that the site drawing submitted for [the 2006 variance] was not the legal configuration at the time of the variance application.

CP at 13-14 (CL 4).

The hearing examiner then concluded that (1) under "the MCC and in state law, "^[7] a variance is "'necessary because of special circumstances relating to the size, shape, topography, location, or surroundings of the subject property'"; (2) Ambrose's 2007 BLA "change[d]" these factors; (3) thus, the "special circumstances" that had served as "the basis for the [2006] variance no longer exist[ed]"; (4) consequently the 2007 BLA had "extinguished" the 2006 variance; and (5) because there was no longer "variance legally in effect, " Ambrose's "new construction" under the renewed building permit must conform to the MMC's 15-foot minimum side yard provision. CP at 14 (CL 5). Concluding that Ambrose's house's footprint, as drawn, did not include the requisite 15-foot minimum side yards on the lot, the hearing examiner revoked Ambrose's renewed building permit.

B. Superior Court

Ambrose appealed the hearing examiner's decision to the Grays Harbor County Superior Court under the Land Use Petition Act (LUPA), RCW 36.70C.060. She argued that (1) there is "no ordinance for termination of a variance based on change in circumstances"; (2) thus, the hearing examiner's conclusion that the 2007 BLA "extinguish[ed]" the 2006 variance was erroneous, CP at 3; and (3) the hearing examiner lacked jurisdiction to consider whether the 2006 variance was in effect because Hyde had appealed only the September 12, 2008 renewal of Ambrose's building permit, not the 2006 variance.

Hyde also appealed the hearing examiner's decision, seeking only to have the decision "broaden[ed]" to "conclude that the Property is 'unbuildable, '" CP at 26-27; the superior court consolidated Hyde's appeal with Ambrose's appeal. Before the administrative record was prepared and filed, the superior court filed a letter decision in which it "upheld" the hearing examiner's decision revoking Ambrose's building permit, based on his finding the necessary variance improperly issued; the superior court also dismissed Hyde's appeal. CP at 73.

C. Court of Appeals

Ambrose appealed. Both Hyde and the City moved to dismiss Ambrose's appeal on grounds that the superior court's decision did not contain specific findings of fact and conclusions that the superior court had rendered its decision in the absence of the administrative record.^[8]

Denying the motions to dismiss, our court commissioner ruled:

It appears from a review of appellant's brief and the subsequent motion and responses that (1) the relevant facts are undisputed; (2) those facts can be found in the hearing examiner's findings and in the portions of the administrative record provided for the motion for summary judgment in the superior court; and (3) the issues presented are issues of law that can be decided upon the record provided to the superior court.

Spindle (Commissioner's Ruling, August 16, 2010). We now address Ambrose's appeal.

ANALYSIS

Finding the threshold jurisdictional issue dispositive, we address only Ambrose's argument that the hearing examiner lacked jurisdiction to revoke her building permit based on the 2006 variance, which the examiner ruled was no longer in effect, because Hyde had appealed only the September 12, 2008 renewal of Ambrose's building permit, not the 2006 variance. Ambrose is correct.

I. Standard of Review

When reviewing a LUPA decision, we stand in the shoes of the superior court, reviewing the ruling below on the administrative record. HJS Dev., Inc. v. Pierce County ex. rel. Dep't of Planning & Land Servs., 148 Wn.2d 451, 468, 61 P.3d 1141 (2003). We review conclusions of law de novo. Habitat Watch v. Skagit County, 155 Wn.2d 397, 406, 120 P.3d 56 (2005).

The party that filed the LUPA petition in the superior court, here, Ambrose, has the burden of meeting one of six standards: ^[9]

(a) The body or officer that made the land use decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless;

(b) The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise;

(c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court;

(d) The land use decision is a clearly erroneous application of the law to the facts;

(e) The land use decision is outside the authority or jurisdiction of the body or officer making the decision; or

(f) The land use decision violates the constitutional rights of the party seeking relief.

RCW 36.70C.130(1). Ambrose contends that the hearing examiner's decision violated all six standards.

II. Hearing Examiner's Decision

According to Ambrose, (1) Hyde did not appeal the 2006 variance within LUPA's 21-day time limit; (2) therefore, the legality of the 2006 variance was not before the hearing examiner; and (3) the hearing examiner lacked jurisdiction to revoke her building permit based on the 2006 variance, which he improperly concluded was invalid. The City agrees with Ambrose on this point.^[10] And so do we.

"LUPA's stated purpose is 'timely judicial review.'" Habitat Watch, 155 Wn.2d at 406 (quoting RCW 36.70C.010). LUPA "establishes a uniform 21-day deadline for appealing the final decisions of local land use authorities." Habitat Watch, 155 Wn.2d at 406. As our Supreme Court has explained,

[O]nce a party has had a chance to challenge a land use decision and exhaust all appropriate administrative remedies a land use decision becomes unreviewable . . . if not appealed to superior court within LUPA's

...