Habitat Watch v. Skagit County
| Decision Date | 22 September 2005 |
| Docket Number | No. 74073-9.,74073-9. |
| Citation | 120 P.3d 56,155 Wn.2d 397 |
| Court | Washington Supreme Court |
| Parties | HABITAT WATCH, a Washington non-profit corporation, Petitioner, v. SKAGIT COUNTY, a municipal corporation, Respondent, Upper Skagit Indian Tribe, a federally recognized Indian tribe, and Port Gardner Timber Co., Inc., a Washington corporation, Defendants. |
Jeffrey Murdock Eustis, Seattle, for Petitioner.
John William Hicks, Paul Hewson Reilly, Skagit County Prosecuting Attorney's Office, Mount Vernon, Le Anne Marie Bremer, Miller Nash LLP, Vancouver, for Respondent.
John Maurice Groen, Groen Stephens & Klinge LLP, Bellevue, Timothy M. Harris, Building Industry Association of Washington State, for Amicus Curiae Building Industry Association of Washington.
¶ 1 In 1993, Skagit County granted a special use permit, valid for two years, for the construction of a golf course. The project languished in the hands of its first two owners, and by the time the Upper Skagit Indian Tribe bought the project and finally began construction in 2002, the special use permit had been extended three times.
¶ 2 Habitat Watch, a citizens group comprised of property owners neighboring the proposed golf course site, opposed the project. Habitat Watch was a party in public hearings that were held prior to the issuance of the initial permit and prior to the first permit extension. Although notice and a hearing were provided for the initial permit decision and the first extension, the county mistakenly failed to provide notice or a public hearing for the second and third permit extensions. As a result, Habitat Watch did not learn of the continued existence of the golf course project until construction began in 2002, seven years after the last public hearing on the project.
¶ 3 Habitat Watch argues that because notice and an opportunity to be heard were not provided with respect to the last two permit extensions, those extensions are void and susceptible to challenge at any time. The county and the tribe concede that the second and third permit extensions were granted without notice or public hearings. They argue, nevertheless, that the extensions are valid under the Land Use Petition Act (LUPA), chapter 36.70C RCW, because Habitat Watch failed to appeal the extensions, despite lack of notice, within 21 days of issuance, and because Habitat Watch failed to exhaust available administrative remedies. We hold that Habitat Watch's challenges are barred by LUPA and affirm the judgments of the trial court.
¶ 4 In 1993, the Skagit County hearing examiner granted a special use permit to David Moore for the construction of a golf course. Notice and a public hearing on Moore's application were properly provided pursuant to former Skagit County Code (SCC) 14.04.150(4) (1993). In the hearing, Habitat Watch raised the concerns of surrounding landowners, including that the golf course would negatively impact water quality and substantially impact local water supplies.
¶ 5 Despite Habitat Watch's objections, the special use permit was granted for a two year period to expire June 14, 1995, after which the grant of approval for the golf course would automatically expire. Ex. 104.h () ("The project must be started within two (2) years of the date of this order or the Special Use Permit will become void."); see, e.g., SCC 14.16.900(2)(d), (d)(ii) .
¶ 6 The project did not meet the deadline established by the special use permit. Still interested in the project, Moore requested that the hearing examiner "extend" the permit for two additional years. Pursuant to the Skagit County Code, the same procedures required for the initial grant of a special use permit were required to grant an extension of a permit. Former SCC 14.04.150(3)(f), (4); former SCC 14.04.240(9) (1993). Extensions, like initial permit grants, required the hearing examiner to provide notice and "conduct public hearings, prepare a record thereof and enter findings of fact and conclusions based upon those facts." Former SCC 14.04.240(9)(a). In the words of the county permit office, "[t]he proper procedures were outlined in former SCC 14.04.150(3)(f)1 and required the Hearing Examiner to conduct a public hearing before amending [e.g., to extend] a Special Use Permit." Ex. 203.
¶ 7 Accordingly, notice was provided and a public hearing was held to consider Moore's extension request. See Ex. 104.i. Habitat Watch participated in the proceedings and presented the hearing examiner with evidence in opposition to the project. After weighing the evidence presented, the hearing examiner decided to extend the permit two additional years and provided, "[t]he project must be started by June 14, 1997 or the Special Use Permit will become void." Clerk's Papers (CP) at 1083. Habitat Watch did not request reconsideration of or appeal this decision as provided for in former SCC 14.04.240(15)-(16).
¶ 8 Moore subsequently sold the land and golf course project to the Port Gardner Timber Company. Port Gardner failed to meet the project commencement deadline for the extended special use permit and requested that another extension permit be issued. Unlike the initial grant of the permit and first extension, the hearing examiner failed to provide notice of Port Gardner's extension request and failed to conduct a public hearing. Compare Ex. 104.j (), with Ex. 104.i (). Nevertheless, the hearing examiner granted the request for a new two year special use permit extension, pushing the deadline for commencement of the golf course project to June 14, 1999. No notice of the decision was provided to parties other than Port Gardner.
¶ 9 Anticipating its failure to meet the June 1999 deadline, Port Gardner made an oral request for an additional extension in November 1998. In response to this oral request, the hearing examiner again granted an extension without holding a public hearing or providing notice of the request or of the decision.2 The deadline for commencement was pushed back until June 14, 2002. Id.
¶ 10 In 2000, the Upper Skagit Indian Tribe purchased the property from Port Gardner and actively pursued the golf course project. The tribe requested and received a letter from Skagit County confirming that the special use permit was valid and would expire on June 14, 2002.
¶ 11 In May 2002, a Habitat Watch member noticed logging activity near the proposed golf course site. This activity came nearly five years after the last properly granted permit expired and seven years after the last public hearing on the project. By June 5, 2002, Habitat Watch became aware that a golf course project was still proceeding at the site despite the long delay since the last public hearing.
¶ 12 On June 7, 2002, Habitat Watch submitted a public disclosure request to Skagit County to determine the authority for the golf course project and learned that the project was going forward based on extensions of the 1993 permit originally granted to Moore. The county did not make applicable records available to Habitat Watch until June 24, 2002. Habitat Watch previously believed that Moore's permit, which was subsequently sold to Port Gardner and then the tribe, had expired in 1997 after the first properly granted permit extension had lapsed. The records made available to Habitat Watch through its public disclosure request showed that the permit had been extended two more times, until June 14, 2002. On July 11, 2002, Habitat Watch filed with the county a petition to revoke the special use permit because the project had not timely commenced.
¶ 13 After the petition for revocation was filed, the county issued a grading permit for the project on July 26, 2002. The grading permit was contingent on the underlying validity of the special use permit extensions challenged in Habitat Watch's petition for revocation. In response to the county's issuance of the grading permit, on July 31, 2002, Habitat Watch filed a LUPA petition and a complaint for declaratory and injunctive relief in superior court to challenge both the grading permit and the validity of the last two special use permit extensions.
¶ 14 On November 7, 2002, the superior court dismissed Habitat Watch's challenge to the 1997 and 1998 special use permit extensions because the appeal was not filed within 21 days of the issuance of the extensions and for failure to exhaust administrative remedies. As a result, the court declined to address the merits of the appeal because it did not have jurisdiction under LUPA to do so.3 The court stayed the portion of the LUPA challenge related to the grading permits to allow the proceeding on the petition for revocation of the special use permit to conclude.
¶ 15 The hearing examiner denied Habitat Watch's petition for revocation on September 30, 2002, and denied reconsideration of that decision on October 8, 2002. The board of county commissioners denied Habitat Watch's appeal of that decision in a resolution dated December 9, 2002. On December 20, 2002, Habitat Watch filed a supplemental LUPA action appealing the denial of its petition for revocation of the special use permit.
¶ 16 In a summary judgment hearing, the superior court considered together the remaining challenge to the grading permit from the original LUPA action and the new challenge to the denial of the petition for revocation of the special use permit from the supplemental LUPA action. On May 13, 2003, the trial court granted summary judgment against Habitat Watch, ordered that the grading permit was valid, and...
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