Concerned Coupeville Citizens v. Town of Coupeville
| Decision Date | 19 August 1991 |
| Docket Number | No. 26659-4-I,26659-4-I |
| Court | Washington Court of Appeals |
| Parties | CONCERNED COUPEVILLE CITIZENS, a Washington non-profit corporation, Respondent, v. TOWN OF COUPEVILLE, Respondent, and Landmark Plaza, Inc., a Washington corporation, Appellant. |
Landmark Plaza, Inc., appeals the trial court's entry of partial summary judgment in favor of respondent Concerned Coupeville Citizens, in which the court vacated the Coupeville Town Council's grant of a conditional use permit to Landmark. 1 We reverse.
Appellant Landmark Plaza, Inc., ("Landmark") sought to construct a commercial mini-storage on property it owned in Coupeville, Washington. Because the intended use was classified as a "conditional use" by Coupeville Town Ordinance 381E, a conditional use permit was required. On April 3, 1989, Landmark filed an application for a conditional use permit with the Town of Coupeville.
On April 12, 1989, the Town posted a "Notice of Public Hearing," stating that the Coupeville Planning Commission would hold a public hearing regarding the application on April 27, 1989. Following the hearing, the Planning Commission voted to deny Landmark's conditional use application. The next day, April 28, Landmark filed a written request with the Town requesting that it hold a public hearing on the conditional use application. The request included a statement that "Landmark Plaza desires to appeal the Planning Commission[']s decision of April 27, 1989 concerning this application."
Under Coupeville Town Ordinance (CTO) § 10.20.035, Planning Commission decisions may be appealed to the Town Board of Adjustment; the ordinance provides that for matters pertaining to properties within the town limits, the Town Council serves as the Board of Adjustment. 2 A regular meeting of the Coupeville Town Council was held on May 22, 1989, following which the Council voted to approve Landmark's conditional use permit.
The Concerned Coupeville Citizens ("CCC") thereafter petitioned the Island County Superior Court for a writ of certiorari to review the Town Council's grant of Landmark's conditional use permit. Named as defendants in the suit were Landmark and the Town of Coupeville. CCC argued that, under the provisions of CTO § 10.30.100(B), the Planning Commission and Town Council must make certain findings in writing as a condition precedent to the grant of a conditional use permit. Because the Planning Commission had denied Landmark's permit and, further, did not make the required findings pursuant to § 10.30.100(B), CCC argued that the Council's grant of the permit was void.
Although CTO § 10.20.035 provides for the appeal of Planning Commission decisions to the Town Board of The trial court issued a memorandum decision on February 26, 1990. The court agreed with CCC's interpretation of § 10.30.100(B), and stated that both Planning Commission and Town Council must make certain findings in writing in order for a conditional use permit to be granted. The court further believed that the Town Council had delegated fact-finding authority to the Planning Commission by ordinance and that the Council could not, simply by disagreeing with the Planning Commission, amend the ordinance. While the court determined that the appeal provisions of § 10.20.035 were generally applicable to all sections of the ordinance, it stated:
Adjustment, CCC argued that the appeal procedures were not applicable, as such procedures were confined to regulations established by that chapter. The provisions relating to the issuance or denial of conditional use permits, CCC argued, were in a different chapter of the ordinance, § 10.30
[I]n view of the wording of the town ordinance, fact finding authority for granting a conditional use permit has been delegated to the Planning Commission and the only appeal from the findings or lack thereof of the Planning Commission would be by writ to the Superior Court alleging arbitrary or capricious action on the Commission's part.
From an order of summary judgment in favor of CCC, Landmark appeals.
REVIEW OF SUMMARY JUDGMENT
In reviewing an order of summary judgment, an appellate court engages in the same inquiry as the trial court. Hansen v. Friend, 59 Wash.App. 236, 240, 797 P.2d 521 (1990), review granted, 116 Wash.2d 1007, 805 P.2d 813 (1991). Summary judgment is to be granted only if the record demonstrates that there is no genuine issue as to any fact that is material to the cause of action and that the moving party is entitled to judgment as a matter of law. Hansen, 59 Wash.App.
at 240, 797 P.2d 521. The court must consider the facts and all reasonable inferences therefrom in a light most favorable to the nonmoving party. Hansen, at 240, 797 P.2d 521. The motion should be denied if reasonable persons could reach differing conclusions. Hansen, at 240, 797 P.2d 521
Under CTO § 10.20.035, decisions of the Planning Commission may be appealed to the Town Council, which serves as the Board of Adjustment. Landmark made arguments regarding this right of appeal in the writ of certiorari proceeding before the trial court and seeks to raise these same arguments here. 3 CCC argues, however, that Landmark did not follow the procedures outlined in the ordinance in bringing its "appeal" from the Planning Commission to the Town Council. Although the Council voted to approve Landmark's conditional use permit, CCC argues that the Council was not acting as a Board of Adjustment, and thus no "appeal" occurred for purposes of CTO § 10.20.035. 4 Therefore, CCC contends that the trial court should not have considered Landmark's arguments regarding the right of appeal under § 10.20.035, and neither should this court. CCC further notes that the trial court found the relevant appeal procedures applicable and that Landmark did not assign error to this finding.
Nothing in the record indicates that CCC made these arguments before the trial court. Instead, CCC contended that the appeal provisions of CTO § 10.20.035 were not applicable. As an alternative to this argument, CCC did briefly argue that Landmark had failed to allege error in its "appeal" from the Planning Commission's decision. 5 CCC's other arguments relating to improper appeal procedures were not raised at trial. Contentions not made to the trial court in its consideration of a summary judgment motion need not be considered on appeal. Re v. Tenney, 56 Wash.App. 394, 399, 783 P.2d 632 (1989).
Furthermore, it is of no consequence that Landmark failed to assign error to the trial court's "finding" that the appeal provisions of § 10.20.035 were applicable. Findings of fact and conclusions of law are not necessary on summary judgment and, if made, are superfluous and will not be considered on appeal. Donald v. Vancouver, 43 Wash.App. 880, 883, 719 P.2d 966 (1986). A litigant need not assign error to superfluous findings.
Our review of the record indicates that Landmark properly raised, at trial, the issues it seeks to raise before this court.
CTO § 10.30.100 pertains to conditional uses and the granting of conditional use permits. Relevant portions of the code provide as follows:
B) Standards
As specific conditions precedent to the granting of any conditional use permit, the Planning Commission and Town Council, after a public hearing, must find in writing that:
1) The requested conditional use is reasonably necessary for the public health, safety and general welfare;
2) The requested conditional use will not permanently or substantially injure the lawful use of neighboring uses;
3) The requested conditional use will generally be in harmony with the comprehensive plan; and 4) The requested conditional use is a conditional use expressly permitted by the zoning ordinance in the district in which the conditional use permit is requested.
CTO § 10.30.100(B). Appeals to the Town Board of Adjustment are provided for in § 10.20.035 of the ordinance. That section states that "[f]or matters pertaining to properties inside the Town of Coupeville town limits, the Town Council shall be the Board of Adjustment." Additional provisions outline the powers of the Board:
A) Powers of the Board of Adjustment
1) Appeals from decisions of the administrative official and Planning Commission concerning matters of interpretation. The Board of Adjustment shall hear and decide appeals taken from the Planning Commission when it is alleged there is error in any order, requirement, decision or determination made by the administrative official and/or the Planning Commission concerning the regulations established by this Chapter.
2) In exercising the above-mentioned powers, the Board of Adjustment may, in conformity with the provision, reverse or affirm, wholly or partly, or modify the order, requirements, decision or determination appealed from and make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the body from whom the appeal is taken.
(Italics ours.) CTO § 10.20.035(A)(1)-(2).
The dispute in this case centers on the powers possessed by the Town Council, acting as a Board of Adjustment, when deciding appeals from Planning Commission decisions. Landmark contends that the general laws of this state do not permit a town council to delegate final approval authority to a planning commission on questions of land use, zoning, or permit decisions. Landmark further argues that CTO § 10.20.035(A) clearly gives the Council the right to reverse any decision of the Planning Commission.
On the other hand, CCC contends that before a conditional use permit can be...
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