Chelan County v. Nykreim, 18929-5-III.

• Decision Date: 22 March 2001
• Docket Number: No. 18929-5-III.,18929-5-III.
• Citation: 105 Wash.App. 339,20 P.3d 416
• Parties: CHELAN COUNTY, a municipal corporation; Eric Gebelein and Rebecca Waud, husband and wife, and the marital community composed thereof; Joseph J. Straus and Mary Shima, husband and wife, and the marital community composed thereof; Gary Kincaid and Julienne Kincaid, husband and wife, and the marital community composed thereof; and David Bale and Melissa Bale, husband and wife, and the marital community composed thereof, Respondents, Cline Sweet and Kirsten Sweet, husband and wife, and the marital community composed thereof; Mel Simpson and Kim Simpson, husband and wife, and the marital community composed thereof; and John Peterson, a single man, Plaintiffs, v. Michael NYKREIM and Lori Nykreim, husband and wife, and the marital community composed thereof; B. Rick Whitney and Vickie Whitney, husband and wife, and the marital community composed thereof; and William Kelly and Jane Kelly, husband and wife, and the marital community composed thereof, Appellants.
• Court: Washington Court of Appeals

20 P.3d 416

105 Wash.App. 339

CHELAN COUNTY, a municipal corporation; Eric Gebelein and Rebecca Waud, husband and wife, and the marital community composed thereof; Joseph J. Straus and Mary Shima, husband and wife, and the marital community composed thereof; Gary Kincaid and Julienne Kincaid, husband and wife, and the marital community composed thereof; and David Bale and Melissa Bale, husband and wife, and the marital community composed thereof, Respondents, Cline Sweet and Kirsten Sweet, husband and wife, and the marital community composed thereof; Mel Simpson and Kim Simpson, husband and wife, and the marital community composed thereof; and John Peterson, a single man, Plaintiffs, v. Michael NYKREIM and Lori Nykreim, husband and wife, and the marital community composed thereof; B. Rick Whitney and Vickie Whitney, husband and wife, and the marital community composed thereof; and William Kelly and Jane Kelly, husband and wife, and the marital community composed thereof, Appellants.

No. 18929-5-III.

Court of Appeals of Washington, Division 3, Panel Ten.

March 22, 2001.

John M. Groen, Groen, Stephens & Klinge, LLP, Bellevue, for Appellants.

Susan E. Hinkle, Deputy Pros. Atty., Mark R. Johnsen, Karr, Tuttle, Campbell, Joseph J. Straus, Barokas & Martin, for Respondents.

Stephen H.G. Overstreet, General Counsel, Building Industry Ass'n of Wash., Olympia, Eric P. Gillett, Pregg, O'Donnell & Gillett, Washington Land Title Ass'n, Seattle, Larry D. Stout, Asst. Director, Legal & Environmental Affairs, Washington Ass'n of Realtors, Olympia, James M. Johnson, Washington State farm Bureau, Olympia, for amicus curiae.

KURTZ, C.J.

Three married couples—Michael and Lori Nykreim, Rick and Vickie Whitney, and William and Jane Kelly (hereinafter referred to as the Nykreims)—purchased a piece of property in Chelan County as tenants in common and applied for a boundary line adjustment (BLA). In their BLA application, the Nykreims represented that the property consisted of three "parcels" even though the deed referenced an undivided quarter-quarter section. The Director of the Chelan County Planning Department approved the BLA by signing a certificate of exemption. The planning director also required the Nykreims to execute and file notices of title for each of the three parcels. Ten months later, the County withdrew the certificate of exemption after neighbors questioned its validity. The County subsequently filed this action seeking declaratory relief. Several neighbors filed a complaint to intervene. On summary judgment, the court concluded the BLA was void and invalid, and dismissed the Nykreims counterclaims for damages under chapter 64.40 RCW and 42 U.S.C.1983.

On appeal, we must decide: (1) whether the BLA was valid; (2) whether the invalid BLA could be revoked; (3) whether an invalid BLA can be revoked after notices of title have been filed; (4) whether this action is barred because the County failed to comply with the Land-Use Petition Act (LUPA); (5) whether this action is barred because it was not filed within a reasonable time after the BLA was approved; and (6) whether the court erred in dismissing the counterclaims. The Nykreims also request an award of attorney fees under RCW 64.40.020(2). We affirm the judgment of the superior court and we deny fees to the Nykreims because they are not the prevailing party.

FACTS

In July 1997, three married couples purchased property in Chelan County from James S. Kempton as tenants in common. The property is approximately 40 acres in size and is located about four miles outside Leavenworth. The property is traversed at one location by Icicle Road and at another location by Icicle Creek. In the deed conveying the property to the three couples, the property is described as the Northwest Quarter of the Southeast Quarter of Section 27, Township 24 North, Range 17 E.W.M., Chelan County, Washington. Only one deed was issued at the time of the conveyance and there was only one tax parcel number. There is no evidence indicating that Mr. Kempton had previously divided the property or otherwise indicated that the property consisted of "Old Parcels A, B, and C."

In August 1997, the Nykreims applied for a boundary line adjustment. One of the criteria for approval of a boundary line adjustment is that the lot line adjustment does not create any new lots. RCW 58.17.040(6); Chelan County Subdivision Resolution, Article III, Section 302. In the BLA application, the Nykreims referred to the property as consisting of three "parcels," even though the deed referenced an undivided quarter-quarter section. The BLA application included descriptions of "Old Parcel A," "Old Parcel B," and "Old Parcel C."

The BLA application included a map depicting these "old" parcels.

The BLA application also included descriptions of the proposed "New Parcel A," "New Parcel B," and "New Parcel C." A second map depicted the location of the "new" parcels. On October 9, 1997, the BLA was processed by John Harrington, who was then serving as the Director of the Chelan County Planning Department. Mr. Harrington approved the application by signing a certificate of exemption. Because the application was processed as a boundary line adjustment, there was no public notice or hearing.

The Nykreims contend that Mr. Harrington relied on Section 200 of the Chelan County Subdivision Resolution when approving the Nykreims' BLA application. Mr. Harrington states in his affidavit that he believed that the application of Section 200 of the Chelan County Subdivision Resolution resulted in three existing legal lots in the original parcel because the location of the stream and road created separate legal lots.

Mr. Harrington also apparently wanted to clarify that Section 200 could not be applied to the parcels after the boundary line adjustment to create more lots based on the location of Icicle Creek or the county road. Consequently, Mr. Harrington required the three couples to execute and record notices of title for each of the lots stating that the configuration of the three new lots could not be changed unless a subdivision, short subdivision, or boundary line adjustment was approved by the county planning department. The County prepared the notices of title that were filed the same day as the certificate of exemption, October 9, 1997.

Seven months later, in May 1998, the Nykreims applied for conditional use permits (CUPs) to construct three residential structures on "Original Lot A." Neighbors became aware of the proposed development and appeared at the Icicle Valley Design Review Committee hearing on July 20 to voice their objections. These neighbors raised concerns regarding the validity of the boundary adjustment and the possible use of the proposed structures as transient overnight rentals.

A few weeks later, Joseph Straus, a neighbor and an attorney, wrote a letter to Mr. Harrington asserting that the BLA was illegal. Copies of the letter were sent to various County officials and the Icicle Valley Design Review Committee. The County responded by indefinitely postponing the Design Review hearing. Additionally, on August 25, the County officially withdrew the certificate of exemption issued by Mr. Harrington. Meanwhile, the CUP applications were scheduled for consideration before the zoning adjustor. However, the zoning adjustor refused to take jurisdiction because the matter had not been reviewed by the Icicle Valley Design Review Committee as required under Section 11.39B.040 of the Chelan County Comprehensive Zoning Resolution.

In December 1998, the County filed this action seeking declaratory relief finding the Nykreims' BLA certification and the notices of title null, void, and invalid. In May 1999, Mr. Strauss and several other neighbors sought to intervene by filing a complaint in intervention. The issues were resolved on summary judgment. The court revoked the Nykreims' BLA, finding the BLA to be void and invalid. The court also dismissed the Nykreims' counterclaims for damages under chapter 64.40 RCW and 42 U.S.C. § 1983. The Nykreims appeal.

This court subsequently granted the following organizations leave to file an amicus curiae brief: the Building Industry Association of Washington, the Washington Land Title Association, the Washington Association of Realtors, and the Washington State Farm Bureau.

Standard of Review. Summary judgment is proper only when the pleadings, depositions, and admissions in the record, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). All facts and reasonable inferences are considered most favorably to the nonmoving party. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). An appellate court engages in the same inquiry as the trial court when reviewing an order for summary judgment. Mountain Park Homeowners Ass'n v. Tydings, 125 Wash.2d 337, 341, 883 P.2d 1383 (1994).

ANALYSIS

RCW 58.17.040 Exemptions. Chapter 58.17 RCW regulates the subdivision of land in Washington. Chapter 58.17 RCW was adopted because the Legislature found that "the process by which land is divided is a matter of state concern and should be administered in a uniform manner by cities, towns, and counties throughout the state." RCW 58.17.010.

RCW 58.17.040 sets forth exemptions from subdivision regulations and requirements. Subsection (6) relates to boundary line adjustments. Specifically, subsection (6) provides that the requirements of chapter 58.17 RCW do not apply to:

A division made for the purpose of alteration by adjusting boundary lines, between platted or unplatted lots or both, which does not create any additional lot, tract, parcel, site, or division nor create any lot, tract, parcel, site, or division which contains insufficient area and dimension to meet minimum requirements for width and area for a building site[.]

RCW 58.17.040(6) (Emphasis added)...