Callfas v. Dclu

• Decision Date: 16 September 2005
• Docket Number: No. 53890-0-I.,53890-0-I.
• Citation: 120 P.3d 110,129 Wn. App. 579
• Parties: Frank and Victoria CALLFAS, husband and wife, Appellants, v. The DEPARTMENT OF CONSTRUCTION AND LAND USE, an agency of the City of Seattle; and The City of Seattle, a municipal corporation, Respondents.
• Court: Washington Supreme Court

Page 110

120 P.3d 110

129 Wn. App. 579

Frank and Victoria CALLFAS, husband and wife, Appellants, v. The DEPARTMENT OF CONSTRUCTION AND LAND USE, an agency of the City of Seattle; and The City of Seattle, a municipal corporation, Respondents.

No. 53890-0-I.

Court of Appeals of Washington, Division 1.

September 16, 2005.

Philip A. Talmadge, Emmelyn H. Biberfeld, Tukwila, WA, for Appellants.

Roger D. Wynne, Seattle City Attorneys Office, Seattle, WA, for Respondents.

Russell C. Brooks, Pacific Legal Foundation, Bellevue, WA, Samuel A. Rodabough, Groen Stephens & Klinge LLC, Bellevue, WA, for Amicus Pac. Legal Foundation.

KENNEDY, J.

¶ 1 The Callfases submitted an application for a Master Use Permit (MUP) to the City of Seattle's Department of Construction and Land Use (DCLU) on June 24, 1999. There were several changes in the DCLU planners assigned to the application, and these planners issued multiple correction notices to which the Callfases responded. By late 2002, the MUP had still not been issued. The Callfases filed a claim for damages with the City on November 26, 2002. The City denied their claim on February 27, 2003, and the Callfases filed suit in King County Superior Court on March 6, 2003. They alleged that the City's decision to refuse to act on their MUP application was arbitrary and capricious and caused them significant damages. They claimed damages under 42 U.S.C. § 1983 and RCW 64.40.

¶ 2 Seattle finally issued the Callfases' MUP on May 29, 2003. Meanwhile, the City had removed the case to Federal District Court, and the parties pursued discovery. On July 29, 2003, the federal court remanded the case to Superior Court on joint motion of the parties after the Callfases non-suited their section 1983 claim. The City then filed a motion for summary judgment claiming that the Callfases' original suit was barred by the limitations period in RCW 64.40.030. The trial court agreed and dismissed the action. The Callfases appeal.

¶ 3 We conclude that the definition of "act" in RCW 64.40 precludes a party aggrieved by municipal administrative delay from filing suit under the statute unless the municipality has either refused to accept or made a final decision on the application or has exceeded the legal time limits for processing the application. The term "failure to act" in the statute does permit recovery of delay damages. But it is inextricably tied to some action by the City which causes the clock to begin to run on the statute's 30-day limitation period. Because the Callfases filed suit before the City issued the MUP and do not allege a violation of the processing time limits, the trial court properly dismissed their claim under RCW 64.40.¹

FACTS

¶ 4 The Callfases' June 1999 MUP application was for a multi-use building including residential and retail uses and related parking. The application languished until June 13, 2000, when Kathi Williams, the new project architect from PKJB Architectural Group, wrote a letter to Paul Janos, a DCLU planner who had taken over the Callfases' application from Colin Vasquez. The letter said PKJP was preparing revisions to the project, including a 4-foot commercial height bonus to obtain 9' ceiling heights and included diagrams of plans at the increased height. Williams sent another letter to Janos on July 11, 2000, which addressed the 4-foot commercial height bonus and contained a sketch showing the proposed building with the height bonus in relation to an existing building. The letter also stated that Williams believed PKJP and the Callfases did not need to file an exemption from the steep slope and landslide prone area requirements (ECA exemption) because there was previous construction on the site.

¶ 5 On August 14, 2000, Janos sent Williams and PKJP the first DCLU correction notice for the project stating that the proposed plan "substantially exceeds the height limit." The letter also stated there were "numerous other substantial code and critical areas issues to address" and provided a long list of required corrections, including: the height of the planned building; identification of a "40-foot height limit envelope on all elevations ... showing the 5-foot slope bonus and discretionary 4-foot additional height"; provision of required parking spaces; revision to show open space calculations; identification of environmentally critical area (ECA) slopes of 30-40 percent on the site; and identification on the plan of all trees that had been cut.

¶ 6 Williams responded to this first correction notice on August 29, 2000. Her letter said building elevations were reduced, there was a zoning envelope for each elevation, parking was included at a rate of one space per unit, open spaces were now highlighted and a summary of space provided on each floor plan, no trees had been removed, and that they had requested an ECA exemption.

¶ 7 Janos sent Williams a second correction notice in October of 2000. This one included a longer list of corrections than the first one. Among other things, the City wanted a diagram for calculating the slope bonus; sufficient parking spaces based on the University Overlay Parking enhanced parking requirements; proper percentage of the street-level facedil;ade reserved for non-residential uses; diagrams and calculations for the lot coverage above 13 feet in height; landscaping plans; lighting details; location of HVAC equipment; information on solid waste and recyclable material storage space; a building grade sheet; and a "design matrix" document describing all requested "departures" along with the standard requirements. The notice also took issue with the ECA exemption, referring to a prior e-mail between Janos and Williams. Finally, it said the proposed design still did not comply with applicable height limits. Janos made specific suggestions about measuring the elevations and marking them with contour lines on the plan. He said "[p]erhaps it is a good idea to sit down and talk about some of the things needed to get the building to move toward compliance in this regard." Clerk's Papers at 617.

¶ 8 Williams initially responded to this notice by e-mail on October 27, 2000. She asked if Janos and she could meet to discuss the height issue because she thought she was very close to resolving it. Williams asked for more time to formally respond to this second DCLU correction notice and then replied in full to the notice on January 9, 2001. This response contained a "design matrix" of the project requirements and the requested departures and indicated that PKJB believed two of the requested departures were previously approved.² This response also included further height revisions, garage enlargement and increased commercial frontage, a landscape plan, information on lighting, HVAC, and solid waste/recycling space. Williams stated that the ECA exemption request was approved and included a letter from a geotechnical engineer.

¶ 9 The record contains numerous communications between Williams and Janos from October 2000 and February 2001, where the two attempted to reach an agreement on project requirements, including the ECA exemption, parking, and the building height and grade sheet.

¶ 10 In March 2001, there was an earthquake in Seattle. Janos e-mailed Williams on March 6, 2001, indicating that the project's zoning review was "next on my agenda," but that project plans had been inaccessible for two days after the earthquake. Janos said he had asked that the plans be moved to another building, but they had disappeared. He said he was sure the plans would turn up soon, but that he could not make any progress until they did.

¶ 11 Between March 6, 2001, and October 2001, Janos continued to bill for his time on the Callfas MUP application. Although there are references to three additional correction notices DCLU sent during this time—March 22, 2001, June 27, 2001, and July 19, 2001—they are not included in the record on appeal. An internal DCLU e-mail from Janos on August 15, 2001, says that the Department told PKJB the project would be cancelled if they did not respond to the June 27, 2001 correction notice by July 27, 2001. DCLU sent another correction notice on July 19, 2001 even though it had not yet received revised plans in response to the earlier notices.

¶ 12 An early September 2001 e-mail interchange between Lisa Winterhalter, the new project manager/architect at PKJP, and Janos shows that DCLU officials were still discussing the project. Winterhalter asked to meet with Janos. Soon afterward, Janos recommended that DCLU cancel the project because all the correction notices had expired. In an e-mail exchanged in early October 2001, Winterhalter told Janos that PKJB had submitted responses to the fifth correction notice on September 11, 2001. Copies of this correction notice and response are also not in the record.

¶ 13 In the e-mails, Winterhalter said that she was concerned that DCLU would cancel the project and that she was available to meet. Janos responded that he had not yet looked at the PKJP responses, but that DCLU was unlikely to cancel the project unless the submitted revisions continued to have height limitation problems. Winterhalter again requested a meeting, but Janos would not agree because he was still looking for suggestions from other DCLU employees. In internal DCLU e-mails during this time about canceling the project, Janos strongly suggested canceling the application because the project remained substantially incomplete after five correction notices. Specifically, Janos said the building continued to be over height limits and the parking was insufficient under the University Overlay Parking standards.

¶ 14 On October 8, 2001, Vicki Callfas e-mailed Janos to ask about the application and request a meeting with him. Janos said he had had numerous contacts with the Callfases' project representatives since March 2001, DCLU had made four requests that the project comply with height requirements, and he had...