Graham Neighborhood Ass'n v. F.G. Associates

• Decision Date: 31 May 2011
• Docket Number: No. 65279–6–I.,65279–6–I.
• Citation: 252 P.3d 898,162 Wash.App. 98
• Parties: GRAHAM NEIGHBORHOOD ASSOCIATION, a Washington nonprofit corporation, Ray Strub, George F. Wearn, and James L. Halmo, Respondents,Pierce County, Defendant,v.F.G. ASSOCIATES, Appellant.
• Court: Washington Court of Appeals

162 Wash.App. 98

252 P.3d 898

GRAHAM NEIGHBORHOOD ASSOCIATION, a Washington nonprofit corporation, Ray Strub, George F. Wearn, and James L. Halmo, Respondents,Pierce County, Defendant,

v.F.G. ASSOCIATES, Appellant.

No. 65279–6–I.

Court of Appeals of Washington, Division 1.

May 31, 2011.

William T. Lynn, Att. at Law, Tacoma, WA, for Appellant.Scott Mann, Gendler & Mann LLP, Sea., WA, for Respondents.DWYER, C.J.

[162 Wash.App. 101] ¶ 1 Where a county ordinance mandates that land use permit applications not timely acted upon be cancelled, and such an application is cancelled pursuant to that ordinance, the county planning agency lacks the authority to thereafter reinstate that application in contravention of the pertinent ordinance. Such is consistent with our state's vesting statute, which confers upon the local legislative authority the ability to set forth requirements for project permit applications. Moreover, it is consistent with principles of administrative law requiring notice and public hearing prior to decision-making. Because, here, F.G. Associates' preliminary plat application was properly cancelled pursuant to county ordinance, and because reinstatement of that application by a county planning official was not authorized by the ordinance, we reverse the hearing examiner's decision granting approval of the preliminary plat application.

I

¶ 2 On April 25, 1996, F.G. Associates submitted an application for preliminary plat approval to the Pierce County Department of Planning and Land Services (PALS). F.G. Associates sought, through its application, to subdivide a 19.71–acre parcel of land for a project referred to as Mountain View Plaza. F.G. Associates submitted the application upon the advice of county planning officials, who had informed the developer that land use regulations would be amended on May 1, 1996 to prohibit certain commercial uses.

¶ 3 F.G. Associates filled out the preliminary plat application perfunctorily, providing very little information regarding the proposed uses of the land. The application stated that commercial uses were intended but did not specify any particular intended commercial use; instead, it requested only to sub-divide 19.71 acres in the Graham RAC [Rural Activity Center] into ... six parcels with onsite sewage disposal. Appeal Bd. Record (ABR) at 283. In response to multiple questions regarding proposed uses, F.G. Associates simply stated do not know. ABR at 272–73. Moreover, many of the answers provided were flippant. In response to a query on the environmental worksheet, a document required to be filed as part of the application, F.G. Associates indicated that the noise impact of the project would include screams of exasperation from filling out tedious environmental checklist questions for preliminary plats. ABR at 277. F.G. Associates further indicated on the environmental worksheet that its proposed means of reducing that noise impact was sedatives. ABR at 277.

¶ 4 Correspondence between F.G. Associates and PALS indicates that PALS did not consider the application to be complete until May 1996. Because the initial preliminary plat application indicated that the developer sought to divide the property into only five lots, F.G. Associates initially paid the application fee amount corresponding to a request for a five-lot subdivision. The additional payment required for a six-lot subdivision application was not paid until May 23, 1996. Notation on PALS' documents indicates that PALS considered the application to be complete on that date. Significantly, after the full fee was paid, PALS sent a letter to F.G. Associates stating that the application materials were received on May 23 and that the application has been reviewed by this department and is considered complete. ABR at 620.

¶ 5 In a 1998 PALS staff report regarding the history of F.G. Associates' Mountain View Plaza application, PALS reiterated that the application was not complete until May 1996:

An application was made to subdivide a 19.71–acre parcel into six (6) lots in a Rural Activity Center (RAC) on April 25, 1996. The initial application stated that the property was going to be divided into 5 lots and the applicant made payment for review of such on the date of application. It was discovered that the applicant desired a six (6) lot subdivision on the subject site, not five (5). [The application] was edited to reflect the change and the applicant was notified that payment for the additional lot was required prior to distribution. When payment was made, the applicant received a letter stating that on May 23, 1996, the application was complete.

ABR at 285. The staff report further stated that the application was deemed complete on May 23, 1996, after corrections were made to the description, increasing the proposal from 5 to 6 lots and the additional fee received and that the application did not stipulate any specific uses or intensities. ABR at 286.

¶ 6 On June 6, 2005, PALS sent a letter to F.G. Associates and its agent, informing them that the Mountain View Plaza preliminary plat application would become null and void one year from the date of the letter. The letter was sent pursuant to a newly-enacted county ordinance, Pierce County Code (PCC) 18.160.080, which provides for the expiration of applications not timely acted upon. The PALS status file for F.G. Associates' preliminary plat application indicates that the application would be cancelled if F.G. Associates did not respond to the letter before June 6, 2006. It further indicates that the application was, indeed, cancelled as of that date.

¶ 7 In January 2009, almost 13 years after filing its initial environmental worksheet, F.G. Associates filed an additional environmental worksheet for the Mountain View Plaza project. F.G. Associates indicated that it was submitting an additional environmental worksheet, nearly 13 years later, because the previous worksheet was prepared but found to be incomplete. ABR at 127.

¶ 8 That same year, F.G. Associates sought to have its Mountain View Plaza application approved by the Pierce County Hearing Examiner. Public hearings were held in April and July 2009. Neighbors concerned about the development project testified at the hearings.¹ They asserted that F.G. Associates was not entitled to develop the property as proposed because (1) the application was not complete as of April 25, 1996 and, therefore, the application was not vested as of that date; (2) any such vesting would be limited to the proposed uses in the April 25, 1996 application, which were significantly different than those proposed in 2009; and (3) the preliminary plat application had been cancelled by the county in June 2006.

[162 Wash.App. 105] ¶ 9 Notwithstanding that PALS had previously indicated that the application was not complete until May 1996, a PALS staff report submitted to the hearing examiner stated that the application was accepted as complete—and that F.G. Associates' rights were thereby vested—on April 25, 1996. An additional PALS staff report presented at the hearing asserted that Pierce County staff correctly ‘removed the cancellation’ of F.G. Associates' application. ABR at 427. Indeed, the status file for the application states that the cancellation status was removed per Terry Belieu—a county planner at PALS—on May 9, 2008. ABR at 300.

¶ 10 Belieu testified at the public hearing that the county's method for determining application completeness consisted solely of counting the number of documents submitted: Checking for a complete application ... was not and is not reading the application material to determine if all of the questions are answered correctly or accurately. It's always a number count. It's always a matter of using ... what we call now a submittal checklist. Report of Proceedings (RP) (July 23, 2009) at 3. Belieu further testified that the county's policy for determining completeness was simply to count the number of documents and to ensure that the correct filing fee had been paid.

¶ 11 Belieu also testified regarding the cancellation of F.G. Associates' application. He testified that the notice letter regarding cancellation, which was sent by county planning officials to project applicants that had not timely acted upon their applications, was sent to F.G. Associates on June 6, 2005. He further testified that PALS staff programmed their computers such that, one year after the notice letter was sent, those applications for which notices had been sent would be automatically cancelled. Belieu admitted that F.G. Associates did not respond to the cancellation notice letter. However, Belieu testified, F.G. Associates was in contact with PALS regarding supplemental applications, separate from the preliminary plat application for which the notice was sent, for the Mountain View Plaza project. For this reason, Belieu testified, he reactivated the preliminary plat application upon discovery that it had been cancelled in June 2006 pursuant to the notice letter sent to the developer one year earlier. RP (July 23, 2009) at 19.

¶ 12 In October 2009, the hearing examiner granted approval of F.G. Associates' Mountain View Plaza preliminary plat application. In his decision, the hearing examiner relied upon Belieu's testimony in determining that the Mountain View Plaza project had vested on April 25, 1996:

Mr. Belieu clearly testified that the County's method of determining whether or not an application is complete for vesting is whether or not the applicant has submitted the proper number of copies of documents required by the code. If they do it is deemed complete. No inspection of individual documents is done when the application is submitted[;] it is merely a counting process.

ABR at 38. He found it significant that the [a]pplicants [had] been working on this project for the past 13 years and [had] spent large volumes of money relying upon the original application. ABR at 38–39. With regard to...