Kelly v. County of Chelan

• Decision Date: 19 June 2008
• Docket Number: No. 25378-3-III.,25378-3-III.
• Citation: 145 Wn. App. 166,185 P.3d 1224
• Court: Washington Court of Appeals
• Parties: Jeff KELLY, in his individual capacity, and David Dorsey and Nancy Dorsey, a marital community, Respondents, v. COUNTY OF CHELAN, a municipal corporation acting through its hearing examiner, Defendant, Robert Culp, P.E., Manson<SMALL><SUP>*</SUP></SMALL> Engineers, Inc., and Anton Roeckl, d/b/a Wico, Appellants.

185 P.3d 1224

145 Wn. App. 166

Jeff KELLY, in his individual capacity, and David Dorsey and Nancy Dorsey, a marital community, Respondents, v. COUNTY OF CHELAN, a municipal corporation acting through its hearing examiner, Defendant Robert Culp, P.E., Manson^* Engineers, Inc., and Anton Roeckl, d/b/a Wico, Appellants.

No. 25378-3-III.

Court of Appeals of Washington, Division 3.

June 19, 2008.

Chancey C. Crowell, Attorney at Law, Wenatchee, WA, for Appellant.

Brian Edward Lawler, Lawler Burroughs & Baker PC, Seattle, WA, for Respondent.

SCHULTHEIS, C.J.

¶ 1 A developer filed an application for a conditional use permit in 1989, but supplemented and revised its plans for the project on numerous occasions. In 2005, a hearing examiner found that the application vested to the regulations in effect in 1994 and approved the application. Neighbors who opposed the project won their appeal to the superior court under the Land Use Petition Act (LUPA), chapter 36.70C RCW. The developer now appeals. The neighbors have moved to dismiss the appeal because, with the passage of time, the permit expired due to the developer's failure to meet deadlines required by the permit. We agree with the neighbors and dismiss.

¶ 2 This appeal involves a multiple permit proposal for development on the shoreline of Lake Chelan on an uphill incline. The project site is bisected by a shoreward county road. A conditional use permit was necessary because the zoning resolution in effect required that within the general use district, "`[a]ll uses which are not listed as an outright permitted use in [former Chelan County Code] Section 11.36.010 [(1977)]' are a Conditional Use." Administrative Record (AR) Doc. 33, at 12 (quoting former Chelan County Code § 11.36.020 (1974)).

¶ 3 The permitting process began in 1989, when Robert Culp, P.E., for Munson Engineers, Inc., submitted an application on behalf of Anton Roeckl doing business as WICO (the developer) for a conditional use permit as part of its plan to develop property on the shoreline of Lake Chelan. This initial proposal was for a recreational beach area, erosion control, and to grade and riprap approximately 1,000 feet of lake frontage. The Chelan County Planning Department (the department) would not process the application for the shoreline request as a stand-alone project without the residential component referenced in the checklists required by the State Environmental Policy Act (SEPA), chapter 43.21C RCW.

¶ 4 In 1990, the developer revised the SEPA checklist, adding a 30-unit townhouse cluster, seawall, swimming pool, boat slips, beach house, realignment of the county road and a pedestrian underpass, along with the original beach and riprap.

¶ 5 In January 1991, 37 single family residential units and 8 townhouse units were added to the proposal and the proposed boat slips were changed to a 32-boat slip marina. The 37 single family resident units were also split off into a 90-lot plat.

¶ 6 In March 1991, the developer revised the proposal, adding 12 more townhouses, for a total of 50 townhouse units, and a grocery/hardware store. In June 1993, the developer increased the proposal to an 80-unit townhouse development with an 88-boat slip marina. The developer submitted another application in April 1994. A June 1994 application provided for a 10-acre project.

¶ 7 On February 3, 1995, a SEPA mitigation agreement between the developer and the department was executed for a conditional use permit and shoreline substantial development permit for 80 townhouse units referred to as the Missouri Harbor Townhouses. Included in the proposal were a small store, community beach facility, boat moorage for the future lot owners, seawall, a pedestrian underpass, and realignment of the county road to reduce reverse curves. The agreement was based on the application materials, site plan, and environmental checklist. Under the agreement, the developer agreed to amend its application through incorporation of the mitigation measures contained in the agreement and adhere to them. The department agreed to issue a mitigated determination of nonsignificance, which it did.

¶ 8 In 1998, the developer submitted another application eliminating the waterfront residential units, grocery/hardware store, realignment of the county road and pedestrian underpass, and 8 of the boat slips, leaving the marina with 80 slips and the townhouse units. The developer also introduced a bioengineered bank protection in lieu of a seawall.

¶ 9 On February 1, 2000, the Chelan County 2000 Comprehensive Plan (2000 comprehensive plan) was adopted establishing a new comprehensive land use designation for the subject site. The new land use designation is rural waterfront. New zoning regulations implementing the comprehensive plan were adopted October 18, 2000.

¶ 10 As noted in a staff report dated February 18, 2002, the developer had not submitted an accurate site plan. According to the report, substantial changes made to the proposal after execution of the 1995 mitigation agreement required additional SEPA review. It was also noted that because the developer had altered the shoreline, the ordinary high water mark had not been determined, which complicated the examination of shoreline management compliance. Additionally, the developer's shoreline development permit application and the conditional use permit associated with the project had been substantially amended from their submittal on November 6, 1998.

¶ 11 The report concluded that the application appeared "to be substantively incomplete" on February 18, 2002. AR Doc. 33, Ex. 1 (Feb. 18, 2002 Staff Report at 38). The report recommended review of the mitigation agreement and determination of nonsignificance to ascertain the affect the substantial changes had on the application and plans.

¶ 12 In March 2003, the developer submitted a plan to enhance the waterfront amenities by adding a separate floating breakwater and swim float, along with three sets of stairs through the bioengineered bank protection to accommodate a swimming area for condominium owners. This plan was rejected by the department as a substantial change to the original application. Another revised site plan was submitted in May 2003, eliminating those amenities. By 2005, the proposal included 2 single family waterfront units and 78 townhouse condominium units on an uphill slope to the west of the county road. As of July 2005, the developer's numerous planning iterations had resulted in 15 or more SEPA checklists and 4 SEPA determinations.

¶ 13 An amended mitigated determination of nonsignificance was issued on July 13, 2005. The determination covered an 80-unit condominium project and community pool and, divided by South Lakeshore Drive, 2 waterfront single family residences, a community dock with 80 boat slips, and substantial waterfront improvements. This document omitted one provision, revised one provision, and added several paragraphs.

¶ 14 In a decision dated August 19, 2005, a hearing examiner approved the conditional use, determining that the application was complete and vested to the regulations in effect in April 1994. The hearing examiner was persuaded by the developer's testimony at the public hearing that "the issuance of the initial environmental determination (MDNS, 4-27-94) was indicative of a `complete' application." Clerk's Papers (CP) at 174 (Finding of Fact 38(a)). The hearing examiner concluded that "[a] Mitigated Determination of Non Significance can only be issued after an application is complete." CP at 181 (Conclusion of Law 10). The permit included a timeline and deadlines in which the developer was to meet the conditions in the permit and obtain other government approvals.

¶ 15 A number of property owners neighboring the site have vigorously opposed the project, including Jeff Kelly and David and Nancy Dorsey (the neighbors). The neighbors filed a LUPA action in Chelan County Superior Court, appealing the land use decision by the hearing examiner. The superior court determined that the hearing examiner erred because the application did not vest prior to zoning changes on October 17, 2005. The developer appealed.

¶ 16 The neighbors have now moved to dismiss the appeal. They argue that, because the developer chose not to act on the permit and obtain the necessary government approvals within two years of the issuance of the conditional use permit, the permit has expired on its terms. See, e.g., Snohomish County v. State, 69 Wash.App. 655, 660, 850 P.2d 546 (1993) (dismissing appeal when the underlying permit to clear-cut timber had expired). We agree.

¶ 17 Here, the permit relevantly provides:

29. [Conditional use permit] approval and continuation:

a. Any approval of an application for a conditional use shall automatically be for a period of one year from the date of approval.

b. At the expiration of it's [sic] first year of approval, and after an administrative review by the Planning Office and certification by staff that all conditions of approval have been, or are being met, any such approved conditional use may be continued for one additional year.

c. At the expiration of it's [sic] second year of approval, and after a public hearing before the Chelan County Hearing Examiner at which it is found that the conditional use continues to meet all applicable conditions, any such conditional use may be granted permanent approval by the Hearing Examiner. All infrastructure installation and federal, state and local agency approvals shall be obtained prior to the 2 year deadline. Failure to obtain ALL necessary approvals to proceed within 2 years of the Decision date will result in nullification of this conditional use permit.

CP at 188.

¶ 18 With the exception of the last two sentences above, the relevant county ordinance then in effect reads the same.¹ Former Chelan County Code 11.56.045 (1969).

¶ 19 The neighbors assert that the developer has not complied with the...