Berst v. Snohomish County, No. 49545-3-I.

CourtCourt of Appeals of Washington
Writing for the CourtCOX, A.C.J.
Citation114 Wash.App. 245,57 P.3d 273
PartiesWilliam BERST and Dianne Berst, husband and wife and their marital community, Appellants, v. SNOHOMISH COUNTY, a Washington municipal corporation, Respondent.
Docket NumberNo. 49545-3-I.
Decision Date04 November 2002

57 P.3d 273
114 Wash.App.
245

William BERST and Dianne Berst, husband and wife and their marital community, Appellants,
v.
SNOHOMISH COUNTY, a Washington municipal corporation, Respondent

No. 49545-3-I.

Court of Appeals of Washington, Division 1.

November 4, 2002.


57 P.3d 275
Jane Koler, Kirkland, WA, for Appellant

Shawn Aronow, Everett, WA, for Respondent.

57 P.3d 274
COX, A.C.J

Challenges to land use decisions are generally governed by the Land Use Petition Act (LUPA), chapter 36.70C RCW, not the Declaratory Judgment Act.1 But LUPA does not apply to decisions that are not land use decisions. Because the imposition of a moratorium under the Forest Practices Act (FPA) is not a land use decision, we reverse and remand.2

The Bersts own a 10 acre piece of property in Snohomish County. In September 1998, they requested a pre-application conference with the Snohomish County Department of Planning and Development Services (PDS) to discuss their intended application to short plat their lot into two lots. To prepare for this conference, a County technician visited the site on September 28, 1998. The technician also reviewed aerial photographs of the site from 1991 and 1995, and concluded that clearing and logging had taken place on the site. A "Pre-Application Meeting Submittal Package" was prepared and distributed to the PDS staff before the meeting. This document stated that:

The applicant is required to submit a copy of the FPA [Forest Practices Application] associated with the recent logging activity. If no copy of the FPA can be provided then the county is required by state law (RCW 76.09.060) to deny any and all permits on the site for a period of six years from the date of discovery of the unpermitted logging. Reference POL 6300 for criteria for listing [sic] the mandatory development moratorium. Based on the submittal provided and the recent site visit, it does not appear that the criteria for lifting the mandatory six year moratorium can easily be met.

It appears that the substance of this information was discussed at a meeting in October 1998 between PDS and Mr. Berst. Evidence in the record indicates that Mr. Berst reacted negatively to the information revealed during this discussion.

In mid-December 1998, the Bersts' attorney wrote to the project manager, stating that they did not wish to spend the money to apply for a short plat if the County was certain to deny that application because of logging. This letter acknowledged that the building moratorium had been or would certainly be imposed. The PDS project manager responded, explaining the law requiring the moratorium and the County policy regarding lifting of the moratorium. She explained that such a lifting would have to take place in the context of a permit application, according to the County policy, and that it appeared from the information they had gathered that the Bersts were unlikely to qualify. The Bersts did not apply for the short plat. And there is nothing in the record to indicate that the moratorium described in the Pre-Application Meeting Submittal Package was imposed at any time during 1998.

On March 13, 2000, the Bersts applied for a permit for a larger mobile home to replace the single home they had on the site. PDS employees again visited the site. They spoke to Berst at the site, and he confirmed that he knew that the County was acknowledging the imposition of the moratorium required by state law.

On May 1, 2000, a Building Division Manager approved a "Request to Recognize State Forest Practices Moratorium on Subject Property." This document recommended a moratorium with a retroactive start date of September 28, 1998. The reason for the commencement date was, because "[l]ogging was discovered in 1998 during a pre-application review by the Land Use Division of PDS." Apparently, the County then imposed the moratorium, with the recommended retroactive start date.

On June 13, 2000, PDS employees met with the Bersts and administratively waived

57 P.3d 276
the moratorium for the limited purpose of replacing the single-wide mobile home with another mobile home of the same size and in the same location. The Bersts were informed that the moratorium would be effective until September 28, 2004, and they were further informed that they could try to lift the moratorium pursuant to County policy. The Bersts did not appeal the decision that denied, in part, their permit application

On August 28, 2000, the Bersts commenced this declaratory judgment action. The substance of their complaint is that they challenge the imposition, without prior notice or a hearing, of the moratorium. The prayer of the complaint includes a request to declare that the FPA does not support a moratorium for this property. They also request damages and attorney fees. There is no request to set aside the permit issued in June 2000 or otherwise challenge that permit.

The Bersts moved for summary judgment, arguing that their due process rights were violated and that the Forest Practices Act did not apply to their property. The County moved to dismiss the complaint for failure to state a claim upon which relief can be granted, for failure to sue under the Land Use Petition Act, and for failure to comply with the statute of limitations under LUPA. At the hearing on these motions, the Bersts orally moved to amend their complaint to add an inverse condemnation claim. The court allowed the Bersts to amend the complaint, subject to submitting a written motion, and requested additional briefing on the question of whether the moratorium was an unconstitutional taking. After reviewing the briefing, and without either an additional hearing or evidence, the trial court entered three orders on the same date. One order granted the Bersts' motion to amend the complaint to include a claim for inverse condemnation. The second order denied the Bersts' motion for summary judgment. The third order granted the County's motion to dismiss.

The Bersts appeal the latter two orders.

LUPA

The Bersts argue that the trial court erred in dismissing their claims for failure to bring timely claims under LUPA. They argue that their claims concern only the moratorium procedure, not the permit denial, and that the decision by the County to impose the moratorium under the FPA was not a land use decision that could be challenged in a LUPA appeal. We agree.

A trial court's ruling on a motion to dismiss for failure to state a claim upon which relief can be granted under CR 12(b)(6) is a question of law that we review de novo.3 Courts should dismiss under this rule only when it appears beyond a reasonable doubt that no facts justifying recovery exist.4 Courts presume the allegations of the complaint to be true for the purpose of such a motion.5

If materials outside the pleadings are considered, the CR 12(b)(6) motion is treated as a summary judgment motion under CR 56.6 The court in this case did consider materials outside the pleadings. Thus, we review the decision on the basis of CR 56.

We may affirm an order granting summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.7 All facts and reasonable inferences must be considered in the light most favorable to the nonmoving party.8 We review questions of law de novo.9

Neither party argues that genuine issues of material fact exist. We agree. Thus, we are faced only with the legal question whether LUPA bars the Bersts' claims.

57 P.3d 277
LUPA is the "exclusive means of judicial review of land use decisions."10 LUPA's stated purpose "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."11 The term "land use decision" means "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" of certain types of decisions, including 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[.]."12 A petition must be filed and served within 21 days of a land use decision.13

The Bersts do not dispute that the denial of their application for a permit to replace their mobile home was a land use decision that they could have appealed under LUPA. Moreover, they do not argue that they would have been unable to present their constitutional claims relating to the moratorium during a LUPA appeal of the permit denial.14

Instead, they appear to take the position that they do not challenge the denial of the permit at all. Rather, they challenge the moratorium against their property. It appears to be somewhat of an anomaly that the Bersts challenge the moratorium but not the partial denial in June 2000 of their permit application, where the denial of the application was based on the moratorium they now challenge. But we shall take as true the representations the Bersts make to this court that they only challenge the imposition of the moratorium. And our reading of the record before us supports our conclusion that these representations are not inconsistent with that record. We acknowledge that the Bersts' approach arguably allows them to circumvent LUPA by asserting in this case that their attack is solely against the moratorium, while they may later attempt to overturn the County's permitting decision to the...

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16 practice notes
  • Wolverton v. Young, No. 24117-3-III (WA 1/24/2006), No. 24117-3-III
    • United States
    • United States State Supreme Court of Washington
    • January 24, 2006
    ...a trial court's ruling on a motion to dismiss for failure to state a claim de novo. Berst v. Snohomish County, 114 Wn. App. 245, 251, 57 P.3d 273 (2002). Courts should dismiss under this rule only when it appears beyond doubt that no facts justifying recovery exist. Gorman v. Garlock, Inc.,......
  • Kinney v. Cook, No. 27251-6-III.
    • United States
    • Court of Appeals of Washington
    • May 21, 2009
    ...motion shall be treated as one for summary judgment and disposed of as provided in rule 56." CR 12(b); Berst v. Snohomish County, 114 Wash.App. 245, 251, 57 P.3d 273 ¶ 9 Here, when considering Mr. Cook's motion to dismiss under CR 12(b)(6), the trial court considered materials outside ......
  • Verjee-Van v. Pierce Cnty., No. 49329-2-II
    • United States
    • Court of Appeals of Washington
    • February 27, 2018
    ...yet still affect and limit its use to such an extent that a taking occurs.'" Berst v. Snohomish County, 114 Wn. App. 245, 255-56, 57 P.3d 273 (2002) (quoting Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S. Ct. 2448, 150 L. Ed. 2d 592 (2001)). Therefore, by arguing that the County ......
  • Verjee-Van v. Pierce County, 49329-2-II
    • United States
    • Court of Appeals of Washington
    • February 27, 2018
    ...yet still affect and limit its use to such an extent that a taking occurs.'" Berst v. Snohomish County, 114 Wn.App. 245, 255-56, 57 P.3d 273 (2002) (quoting Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001)). Therefore, by arguing that the County has ......
  • Request a trial to view additional results
16 cases
  • Wolverton v. Young, No. 24117-3-III (WA 1/24/2006), No. 24117-3-III
    • United States
    • United States State Supreme Court of Washington
    • January 24, 2006
    ...a trial court's ruling on a motion to dismiss for failure to state a claim de novo. Berst v. Snohomish County, 114 Wn. App. 245, 251, 57 P.3d 273 (2002). Courts should dismiss under this rule only when it appears beyond doubt that no facts justifying recovery exist. Gorman v. Garlock, Inc.,......
  • Kinney v. Cook, No. 27251-6-III.
    • United States
    • Court of Appeals of Washington
    • May 21, 2009
    ...motion shall be treated as one for summary judgment and disposed of as provided in rule 56." CR 12(b); Berst v. Snohomish County, 114 Wash.App. 245, 251, 57 P.3d 273 ¶ 9 Here, when considering Mr. Cook's motion to dismiss under CR 12(b)(6), the trial court considered materials outside ......
  • Verjee-Van v. Pierce Cnty., No. 49329-2-II
    • United States
    • Court of Appeals of Washington
    • February 27, 2018
    ...yet still affect and limit its use to such an extent that a taking occurs.'" Berst v. Snohomish County, 114 Wn. App. 245, 255-56, 57 P.3d 273 (2002) (quoting Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S. Ct. 2448, 150 L. Ed. 2d 592 (2001)). Therefore, by arguing that the County ......
  • Verjee-Van v. Pierce County, 49329-2-II
    • United States
    • Court of Appeals of Washington
    • February 27, 2018
    ...yet still affect and limit its use to such an extent that a taking occurs.'" Berst v. Snohomish County, 114 Wn.App. 245, 255-56, 57 P.3d 273 (2002) (quoting Palazzolo v. Rhode Island, 533 U.S. 606, 617, 121 S.Ct. 2448, 150 L.Ed.2d 592 (2001)). Therefore, by arguing that the County has ......
  • Request a trial to view additional results

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