Grundy v. Brack Family Trust

• Decision Date: 18 March 2003
• Docket Number: No. 26347-5-II.,26347-5-II.
• Citation: 67 P.3d 500,116 Wash.App. 625
• Parties: Evelyne GRUNDY, Appellant, v. The BRACK FAMILY TRUST, Calvin Brack and Joyce M. Brack, Trustees, Respondents, Thurston County, a municipal Corporation, and political subdivision of the State of Washington, Defendant.
• Court: Washington Court of Appeals

67 P.3d 500

116 Wash.App. 625

Evelyne GRUNDY, Appellant, v. The BRACK FAMILY TRUST, Calvin Brack and Joyce M. Brack, Trustees, Respondents, Thurston County, a municipal Corporation, and political subdivision of the State of Washington, Defendant.

No. 26347-5-II.

Court of Appeals of Washington, Division 2.

March 18, 2003.

Publication Ordered April 9, 2003.

Barnett N. Kalikow, Kalikow & Gusa, PLLC, Olympia, WA, for Appellant.

Matthew Bryan Edwards, Owens Davies, PS, Olympia, WA, for Respondents.

QUINN-BRINTNALL, A.C.J.

Evelyne Grundy's neighbors, the Bracks, raised their existing seawall by 16 to 18 inches, which made their wall four inches higher than hers. Grundy claims Thurston County improperly exempted this project from the permitting process and thereby created a public nuisance, and she claims the raised seawall leaves her property vulnerable to flooding, creating a private nuisance. Grundy brought an action seeking declaratory and injunctive relief, but the trial court dismissed all claims against the Bracks on summary judgment, finding the case time barred under the Land Use Petition Act (LUPA). We agree and affirm.

FACTS

The Bracks, through the Brack Family Trust, own an undeveloped parcel on Johnson Point in Thurston County. Evelyne Grundy lives next door. In October of 1998, the Bracks applied for a permit to raise the seawall on their property to "roughly match the height" of the seawalls of their neighbors to the east and southwest. Clerk's Papers (CP) at 15. They also submitted a hydraulics permit to the Department of Fish and Wildlife. The County determined that the project qualified for an exemption from the permitting requirements for substantial development on the shoreline and issued a permit to allow the Bracks to raise their seawall.¹ The County granted the building permit without notice to the neighbors. Grundy became aware of the raising of the seawall around March of 1999, when it was almost completed, and learned about the exemption about five months later (August of 1999).² She filed this nuisance action in November of 1999, approximately one year after the County made its decision and eight months after the Bracks completed the seawall improvements. Grundy did not file an appeal of the County's decision under LUPA.³

PROCEDURAL HISTORY

Grundy filed a nuisance action in November of 1999, alleging three causes of action. She sought a declaratory judgment that the permit to raise the seawall was null and void, orders of abatement, and attorney fees. Although the summary judgment order dismissed all three actions, Grundy only appeals that portion of the action concerning the validity of the permit authorizing the seawall.⁴

The trial court granted the Bracks' motion for summary judgment in part. As a result, it dismissed Grundy's first two causes of action, noting that the County waived any objection to Grundy's amending her complaint to allege new causes of action against it. In so ruling, the trial court agreed with the Bracks' argument that LUPA was Grundy's proper avenue for relief. At the hearing on summary judgment the court stated:

The court will hold the following: The failure to challenge the decision of a granted permit under LUPA, under the time stated of the seawall, constitutes what I consider summary judgment and order; I specifically reject the fact the bulkhead was built pursuant to an invalid permit; and I grant summary judgment for the Bracks to continue [to] have the seawall. However, I deny summary judgment to Thurston County ... as to whether or not the permit is illegal. It's a question of fact.[⁵]

Report of Proceedings (RP) at 33.

Grundy appealed. Since oral argument in this case, our Supreme Court has issued two opinions addressing standing under LUPA.⁶ We requested and received additional briefing after the first of these was issued. We address two issues: First, was Grundy required to pursue her public nuisance claims in an appeal under LUPA? And, second, does the common enemy doctrine provide a defense to Grundy's private nuisance claim?

ANALYSIS

This court engages in the same inquiry as the trial court when reviewing an order for summary judgment: review is de novo. Failor's Pharmacy v. Dep't of Soc. & Health Servs., 125 Wash.2d 488, 493, 886 P.2d 147 (1994). This court will affirm an order of summary judgment if no genuine issue of any material fact exists and the moving party is entitled to judgment as a matter of law. CR 56(c). We consider all facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Failor's Pharmacy, 125 Wash.2d at 493, 886 P.2d 147.

LAND USE PETITION ACT APPEAL

The County determined that the Bracks' project qualified for an exemption from the shoreline substantial development permitting process normally required under RCW 90.58.140 for "substantial development" on the shoreline. RCW 90.58.140(2). Projects that meet the precise terms of one or more of the listed exemptions under WAC 173-27-040 may be granted exemption from the substantial development permit process.⁷

The Bracks claim that Grundy should have appealed the County's decision under LUPA, and, because she failed to do so, her claims are now time barred under the act's 21-day statute of limitations. The trial court agreed.

Grundy bases her argument that she was not required to bring her claims in a LUPA appeal on her assertion that LUPA can afford her no relief because the project is already complete. She argues that she lacked standing under LUPA and lacked notice of the land use decision; therefore, dismissing her case because she did not challenge the decision under LUPA violates her right to due process. As a result she asserts that she should be allowed to seek injunctive relief from the wall itself. We disagree.

Grundy argues that she lacks standing under LUPA. But the applicant, landowner, and any person "aggrieved or adversely affected by the land use decision" has standing to challenge a decision under LUPA. RCW 36.70C.060(1)-(2). A person is aggrieved or adversely affected only when all of the following conditions are present:

(a) The land use decision has prejudiced or is likely to prejudice that person;

(b) That person's asserted interests are among those that the local jurisdiction was required to consider when it made the land use decision;

(c) A judgment in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the land use decision; and

(d) The petitioner has exhausted his or her administrative remedies to the extent required by law.

RCW 36.70C.060(2).

A recent Supreme Court case addressed the application of LUPA to ministerial land use decisions, such as the one at issue here. See Chelan County v. Nykreim, 146 Wash.2d 904, 52 P.3d 1 (2002).

In Nykreim, the "aggrieved party" was Chelan County, whose own planning director approved a boundary line adjustment (BLA) that was contrary to law (in that it created three lots out of one, instead of simply adjusting the boundary lines of existing lots). 146 Wash.2d at 911-12, 52 P.3d 1. Fourteen months after approving the BLA, the County discovered the mistake and challenged the decision in superior court; neighboring property owners intervened. Nykreim, 146 Wash.2d at 914, 52 P.3d 1. As here, the property owners who obtained the BLA approval claimed Chelan County should have challenged the BLA under LUPA. Nykreim, 146 Wash.2d at 917, 52 P.3d 1. The trial court and Division Three of this court viewed the decision to approve the BLA as a ministerial decision, and the appeals court reasoned that LUPA does not apply to ministerial decisions. Nykreim, 146 Wash.2d at 915-16, 918, 52 P.3d 1.

Our Supreme Court disagreed and reversed, explaining that applying a distinction between ministerial and quasi-judicial decisions "is not consistent with the intent and express language of LUPA." Nykreim, 146 Wash.2d at 927, 52 P.3d 1. Under a plain reading of the statute, LUPA provisions apply equally to ministerial and quasi-judicial decisions, if they are "land use decisions," defined as

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, on:

(a) An application for a project permit or other governmental approval required by law before real property may be improved, developed, modified, sold, transferred, or used....

Nykreim, 146 Wash.2d at 927, 52 P.3d 1 (quoting RCW 36.70C.020(1)).

Here, Grundy bases her public nuisance claim⁸ on her allegation that raising the height of an existing seawall without a substantial development permit violates the Shorelines Management Act (SMA). According to Grundy, if the exemption was unlawful, it conferred no rights. Indeed, pre-LUPA case law holds that a void building permit confers no rights. See Steele v. Queen City Broad. Co., 54 Wash.2d 402, 408, 341 P.2d 499 (1959); Nolan v. Blackwell, 123 Wash. 504, 506, 212 P. 1048 (1923) But, as the Nykreim opinion points out, these cases predate LUPA. Post-LUPA case law holds that when the allegedly void action is a land use decision, it must be challenged under LUPA or it will be deemed valid. Nykreim, 146 Wash.2d at 925, 52 P.3d 1 (quoting Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wash.2d 169, 180-82, 4 P.3d 123 (2000)).

Grundy's public nuisance argument hinges solely on her assumption that the exemption was unlawful. But under Nykreim the exemption is necessarily valid because Grundy failed to challenge it under LUPA. Thus there is no basis for Grundy's public nuisance claim.

Grundy argues that she can bring her public nuisance claim as an original action under chapter 7.48 RCW. But LUPA is the exclusive avenue for appealing a land use decision. Nykreim, 146 Wash.2d at 917, 52 P.3d 1 (citing RCW 36.70C.030(1)). Even assuming Grundy lacked standing under LUPA that would not mean that she could...