Birnbaum v. Pierce Cnty.

• Decision Date: 16 April 2012
• Docket Number: No. 66322–4–I.,66322–4–I.
• Parties: Wendy BIRNBAUM, Appellant, v. PIERCE COUNTY, a political subdivision of the state of Washington, Respondent.
• Court: Washington Court of Appeals

274 P.3d 1070

Wendy BIRNBAUM, Appellant,

v.PIERCE COUNTY, a political subdivision of the state of Washington, Respondent.

No. 66322–4–I.

Court of Appeals of Washington, Division 1.

April 16, 2012.

Charles A. Klinge, Brian D. Armsbary, Groen Stephens & Klinge LLP, Bellevue, WA, for Appellant.

Jill Guernsey, Daniel R. Hamilton, Pierce County Prosecuter's Office, Tacoma, WA, for Respondent.

Brian T. Hodges, Bellevue, WA, Amicus.APPELWICK, J.

¶ 1 Pierce County approved Birnbaum's permit application five years after she submitted it. Birnbaum sued pursuant to chapter 64.40 RCW, alleging that the County exceeded legally established time limits and made arbitrary and capricious requests for additional information. The trial court dismissed the claim under CR 12(b)(6). We affirm.

FACTS

¶ 2 On February 23, 2005, Wendy Birnbaum filed an application with Pierce County (County) for a conditional use permit to build a recreational vehicle park and campground. The County held a public hearing on August 2, 2006. On September 21, 2006, the hearing examiner issued a report and decision determining that Birnbaum did not provide sufficient information. Specifically, the decision stated that, “[t]he applicant has not presented sufficient evidence to allow the Examiner to make the findings required.... The site plan does not provide sufficient detail of proposed uses, buffering, setback, access, and design.” Further, the hearing examiner found that the application did not “provide sufficient analysis of the impact of traffic” and “should be returned ... for further review.” But, it allowed that, “[i]n the alternative, the applicant may consider this decision a final denial of the conditional use application for purposes of appeal.”

¶ 3 Birnbaum did not appeal. Instead, on December 8, 2006, she submitted a revised plan and requested a new public hearing. A hearing was scheduled for May 31, 2007, but continued to June 6, 2007. For unknown reasons, the public hearing was not actually held until December 16, 2009. On March 15, 2010, the hearing examiner approved the permit.

¶ 4 The final approval indicates that Birnbaum submitted another new site plan on July 13, 2008, and subsequent plan revisions on August 17, 2009, December 14, 2009, and January 19, 2010. There is no information in the record linking these revisions to demands for additional information or detailing what they contained.

¶ 5 Thirty days after the final decision, Birnbaum filed a complaint against the County. She alleged that the County failed to act within time limits established by law and made repeated demands for additional information that were arbitrary, capricious, unlawful, and exceeded its lawful authority.

¶ 6 The County filed a motion to dismiss under CR 12(b)(6). The trial court granted the motion to dismiss solely on the basis that granting the permit was adequate relief.

DISCUSSION

¶ 7 We conduct de novo review of an order granting a CR 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. Cutler v. Phillips Petroleum Co., 124 Wash.2d 749, 755, 881 P.2d 216 (1994). Dismissal is only proper when we can determine, beyond a reasonable doubt, that there are no facts that would justify recovery. Id. Thus, a CR 12(b)(6) motion only warrants dismissal in the unusual case in which the plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief. Id. The plaintiff's allegations are presumed to be true. Id. We may also consider documents whose contents are alleged in the complaint. Rodriguez v. Loudeye Corp., 144 Wash.App. 709, 726, 189 P.3d 168 (2008).

I. Action for Damages under Chapter 64.40 RCW

¶ 8 RCW 64.40.020(1) grants permit applicants a limited cause of action for damages to obtain (1) “relief from acts of an agency which are arbitrary, capricious, unlawful, or exceed lawful authority,” or (2) “relief from a failure to act within time limits established by law.” But, a cause of action arises only when there is an “act” that is either (1) “a final decision by an agency which places requirements, limitations, or conditions upon the use of real property in excess of those allowed by applicable regulations,” or (2) “the failure of an agency to act within time limits established by law.” RCW 64.40.010(6). Any action “shall be commenced only within thirty days after all administrative remedies have been exhausted.” RCW 64.40.030. “Damages” means reasonable expenses and losses, other than speculative losses and profits, incurred between the time a cause of action arises and the time a holder of an interest in real property is granted relief. RCW 64.40.010(4).

¶ 9 Birnbaum makes claims under each statutory prong. She primarily argues that the County exceeded applicable time limits. She also claims that the County's demands for additional information were arbitrary, capricious, unlawful, and exceeded its lawful authority.

A. Damages under the “Failure to Comply with Time Limits” Prong

¶ 10 Birnbaum's primary claim is that the County failed to comply with established time limits. RCW 36.70B.080 requires local governments to maintain regulations that require a permit decision within 120 days, and Pierce County Code (PCC) requires a final decision on a complete permit application within 120 days. PCC 18.100.010. When the County requests that an applicant correct plans, perform required studies, or provide additional information, then the time spent preparing the additional information is not included in the 120 days. PCC 18.100.020.

¶ 11 The County argues the 30 day limitations period began to run when the 120–day period expired, and thus expired long before Birnbaum filed her complaint. In contrast, Birnbaum argues that her complaint was timely because she could not file her lawsuit until the County issued its final decision. Birnbaum's reading is simply untenable.

¶ 12 The statutory language is unambiguous. An act occurs when there is either a final decision or a failure to act within established time limits. RCW 64.40.010(6). Every claim under chapter 64.40 RCW is subject to the 30 day statute of limitations in RCW 64.40.030. Callfas v. Dep't of Constr. & Land Use, 129 Wash.App. 579, 593, 120 P.3d 110 (2005). The 30 day limitations period begins when all available administrative remedies are exhausted. RCW 64.40.030. But, no exhaustion is required if there is no adequate administrative remedy. Smoke v. City of Seattle, 132 Wash.2d 214, 224–25, 937 P.2d 186 (1997).

¶ 13 Here, Birnbaum herself argues that there is no adequate administrative remedy for failure to timely process a permit. Thus, the limitations period began when the 120 day time limit was exceeded. Birnbaum filed her application on February 23, 2005. The hearing examiner approved the permit on March 15, 2010. It is beyond dispute that she knew the 120 day time limit had been exceeded far longer than 30 days when she filed her complaint against the County on April 14, 2010. Her claim was time barred.¹

¶ 14 Birnbaum argues that Callfas and Hayes v. City of Seattle, 131 Wash.2d 706, 934 P.2d 1179, 943 P.2d 265 (1997) support her conclusion. However, neither Hayes nor Callfas involved a violation of time limits as the basis of the cause of action. In Hayes, the city council issued a conditional approval and Hayes appealed to the superior court. 131 Wash.2d at 709, 934 P.2d 1179, 943 P.2d 265. On remand, the city council reversed course and approved the permit without the condition. Id. at 710, 934 P.2d 1179, 943 P.2d 265. Within 30 days of the approval Hayes filed suit for damages incurred during the appeal to the superior court. Id. The city argued that the suit was untimely since it was not brought within 30 days of the original decision conditioning the permit. Id. at 714, 934 P.2d 1179, 943 P.2d 265. The Supreme Court was not persuaded that Hayes had to file a complaint within 30 days of the conditional approval. Id. at 716, 934 P.2d 1179, 943 P.2d 265. Rather, the Hayes court determined that there was no action triggering the statute of limitations until the city's final decision. Id. But, that conclusion does not help Birnbaum. Hayes challenged a permit decision, not a violation of a time limit. The Hayes court did not hold that an applicant cannot challenge a failure to comply with a time limit until there is a final decision, and it is not a fair inference from that decision.

¶ 15 In Callfas, we concluded that an action for damages is not ripe until the city has, in fact, acted. 129 Wash.App. at 598, 120 P.3d 110. As in Hayes, Callfas made no claim for failure to act within an established time limit. Id. at 597, 120 P.3d 110.

¶ 16 Insofar as Birnbaum sued the County for damages based on failure to comply with established time limits, the County's CR 12(b)(6) motion to dismiss was properly granted.

B. Damages under the “Final Decision” Prong

¶ 17 The question remaining is whether Birnbaum has stated a claim for damages based on arbitrary and capricious actions or delays under the final decision prong of the statute. An “act” for this purpose is “a final decision by an agency which places requirements, limitations, or conditions upon the use of real property in excess of those allowed by applicable regulations in effect on the date an application for a permit is filed.” RCW 64.40.010(6). The statute focuses on the content of the final decision, the permit, and nothing else. To the extent these requirements, limitations, or conditions are found to be arbitrary and capricious or otherwise unlawful, chapter 64.40 RCW provides for damages while obtaining relief from those terms. “Damages” are reasonable expenses and losses incurred between the time a cause of action accrues and the time relief is granted. RCW 64.40.010(4).

¶ 18 Birnbaum's complaint does not allege that the final 2010 permit approval places requirements, limitations or conditions upon her real property which gave rise to her...