Cottingham v. Morgan
| Decision Date | 28 April 2014 |
| Docket Number | No. 70218-1-I,70218-1-I |
| Court | Washington Court of Appeals |
| Parties | DAVID C. COTTINGHAM and JOAN S. COTTINGHAM, Appellants, v. RON MORGAN and KAYE MORGAN, MARK COSTELLO, WHATCOM COUNTY and WHATCOM COUNTY BUILDING SERVICES DIVISION OF PLANNING AND DEVELOPMENT SERVICES, Respondents. |
UNPUBLISHED OPINION
DWYER, J. - In this latest iteration of a long-running property dispute between neighbors on Lake Whatcom, the superior court granted summary judgment dismissing David and Joan Cottingham's complaint for declaratory relief and judicial review under the Land Use Petition Act (LUPA), RCW 36.70C. The court also awarded attorney fees and costs to Ron and Kaye Morgan under CR 11 and RCW 4.84.185. We affirm the judgment in all respects and award fees to the Morgans on appeal.1
I
In 2006, Ron and Kaye Morgan purchased a waterfront lot that shares a boundary with property owned by David and Joan Cottingham.
In August 2006, the Morgans obtained a building permit and began constructing a house, fence, and driveway on their lot. Using a survey they obtained prior to purchasing their lot, the Morgans installed the fence on the boundary shared with the Cottinghams. The Cottinghams did not seek administrative review of the building permit.
In 2007, the Morgans removed eight laurel bushes along the shared boundary in order to construct their driveway.
In June 2009, the Cottinghams sued the Morgans, alleging adverse possession, trespass, conversion, nuisance, and outrage. The Morgans counterclaimed to quiet title. The trial court rejected the nuisance and outrage claims, but concluded that the Cottinghams adversely possessed roughly 300 square feet of the Morgans' property along their shared boundary line. For equitable reasons, the court ruled that the Morgans were entitled to buy back the adversely possessed property for $8,216.55. The court also ruled that the Morgans committed conversion when they removed the laurel bushes and awarded treble damages under the timber trespass statute. The court entered a total judgment of $21,245.49 against the Morgans.
The Cottinghams moved to reconsider, vacate the judgment, or grant a new trial. They argued in part that trial testimony showed that the Morgans'surveyor ignored plat language and normal practice in locating the property corners, and that newly discovered evidence showed the true property line. The trial court denied the Cottinghams' motions. This court subsequently affirmed, but remanded for correction of an inconsistent conclusion of law. Cottingham v. Morgan, noted at 177 Wn. App. 1010 (2013).
On October 25, 2012, the County granted final occupancy approval under the Morgans' 2006 building permit. The County issued no written decision, but its approval is documented in the record.
The Cottinghams allege that in early November 2012, they timely filed an administrative appeal from the occupancy approval to both the Hearing Examiner and the County Board of Appeals. In support, they submitted dated filing fee receipts for their administrative appeals below. They also submitted their administrative appeal documents, which bore "received" stamps from the office of the Whatcom County Planning and Development Services. The stamp dates are November 5 and November 8, 2012. David Cottingham alleged in a declaration that after he filed the appeals, he "contacted the clerk for the Whatcom County Hearing Examiner for report of the scheduling of this [administrative] appeal, and was informed that no appeal was scheduled and she could find no such appeal." In its memorandum below, the County echoed the clerk's statement, stating that "[n]o appeal was filed with the Hearing Examiner or Whatcom County Council."
On November 15, 2012, the Cottinghams filed this "Land Use Petition and Complaint for Declaratory Judgment" against the Morgans and Whatcom County.The complaint mirrored the arguments raised in the Cottinghams' administrative appeals. It alleged various defects and misrepresentations regarding the Morgans' survey and building permit. These included the alleged use of "false corner stakes," and failure to disclose the "true boundary" in violation of the Surveyor Recording Act, RCW 58.09.
The complaint also alleged errors by the County in granting occupancy approval. It alleged that "[f]inal occupancy approval includes inspection and approval of building permit conditions including setback performance for compliance with conditions," that the building code allows correction of permit errors and the denial of occupancy if permits contain errors or conflict with the code, that building permits containing material misrepresentations are invalid under state law and Lauer v. Pierce County, 173 Wn.2d 242, 267 P.3d 988 (2011), and that the occupancy approval ignored misrepresentations and errors in the permit and property line. In addition, the Cottinghams alleged that the County failed to issue a certificate of occupancy approval as required by the building code.
In the "Remedy" and "Relief" portions of the complaint, the Cottinghams requested invalidation of the 2006 building permit. They also sought declarations that the County lacked authority to grant final occupancy approval under the circumstances, that the Cottinghams have standing to enforce requirements for a "valid, fully complete permit," that the Cottinghams' actual property boundaries are contrary to the findings of the court in the first lawsuit, and that such findingswere "entered without permit review or use of the special exclusive [LUPA] jurisdiction under RCW 36.70C.030."
The Morgans moved to dismiss the complaint under CR 12(b)(6) and CR 56. In granting summary judgment, the court concluded that the LUPA petition was untimely as to the 2006 building permit, and that the final occupancy approval did not trigger review under LUPA. The court also concluded that "all issues raised and claims made by Cottinghams in this matter[ ] were . . . [previously] litigated" and were therefore barred by res judicata. The court determined that any new claims were also barred by a three-year statute of limitation because they "would have been known to Cottinghams . . . under any conceivable factual situation, by June 30, 2009."
On June 19, 2013, the court entered additional findings, conclusions and an order imposing $29,282.80 in attorney fees and costs against the Cottinghams under CR 11 and RCW 4.84.185. The Cottinghams appeal.
II
The central issue on appeal is whether the superior court erred in granting summary judgment. We review that decision de novo, engaging in the same inquiry as the trial court. Dillon v. Seattle Deposition Reporters, LLC, ___ Wn. App. ___, 316 P.3d 1119, 1127(2014). Summary judgment is proper if the pleadings, affidavits, depositions, and admissions on file demonstrate that there is no genuine issue of material fact and that the moving party is entitled to summary judgment as a matter of law. CR 56(c); Dillon, 316 P.3d at 1127. Allreasonable inferences from the evidence must be drawn in favor of the nonmoving party. Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 349, 588 P.2d 1346 (1979). Applying these principles here, we conclude that the court properly granted summary judgment.
LUPA Review / Jurisdiction / Exhaustion of Remedies
The Cottinghams first contend that the court erred in dismissing their petition for judicial review. LUPA authorizes judicial review of "land use decisions." RCW 36.70C.030(1). Under RCW 36.70C.020(2), a "land use decision" is 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." Thus, exhaustion of remedies must occur before there is a "land use decision" that a court has statutory authority to review. Durland v. San Juan County, 175 Wn. App. 316, 321-25, 305 P.3d 246, review granted, 179Wn.2d 1001, 315 P.3d 530 (2013V Ward v. Bd. of Skagit County Comm'rs, 86 Wn. App. 266, 271-73, 936 P.2d 42 (1997). In addition, absent exhaustion, a litigant lacks standing to bring a petition for judicial review under LUPA. RCW 36.70C.060(2)(d). West v. Stahley, 155 Wn. App. 691, 696-97, 229 P.3d 943 (2010); Durland, 175 Wn. App. at 324-25.
There are two potential land use decisions at issue in this case - the Morgans' 2006 building permit and the 2012 final occupancy approval under that permit. It is undisputed that issuance of the 2006 building permit was subject to administrative review, that there was no administrative appeal, and that thepermit decision was not made by the body with the highest authority to make it. Accordingly, the Cottinghams lacked standing to file, and the superior court lacked jurisdiction to hear, their petition for judicial review of the 2006 permit decision. Durland, 175 Wn. App. at 321-22. In addition, because the Cottinghams failed to file a petition for judicial review within 21 days of the permit decision as required by RCW 36.70C.040(3), the decision became final, is deemed valid, and is not subject to collateral attack here. Durland v. San Juan County. 174 Wn. App. 1, 13-14, 298 P.3d 757 (2012).
The Cottinghams' LUPA petition was, however, filed within 21 days of the October 25, 2012 final occupancy approval. But once again, the Cottingham's do not dispute that the occupancy decision was not made by the officer or body with the highest authority to make it. Therefore, the Cottinghams lacked standing to file, and the superior court lacked authority to hear, a LUPA petition from the occupancy decision.
The Cottinghams argue, however, that their failure to exhaust remedies with higher authorities should be excused, and they should receive LUPA review of the occupancy decision, because they attempted to exhaust their remedies with higher authorities but review was unavailable. We rejected essentially the same argument in Durland, stating that ...
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