Knight v. City of Yelm
| Decision Date | 15 December 2011 |
| Docket Number | No. 84831–9.,84831–9. |
| Citation | 267 P.3d 973,173 Wash.2d 325 |
| Court | Washington Supreme Court |
| Parties | JZ KNIGHT, Petitioner, v. CITY OF YELM; Windshadow, LLC; Elaine C. Horsak; Windshadow II Townhomes, LLC; Richard E. Slaughter; Regent Mahan, LLC; Jack Long; Petra Engineering, LLC; Samantha Meadows, LLC; TTPH 3–8, LLC, Respondents. |
OPINION TEXT STARTS HERE
Keith E. Moxon, GordonDerr LLP, Michael Barr King, Carney Badley Spellman PS, Seattle, WA, for Petitioner.
Alison Moss, Attorney at Law, Seattle, WA, Alan Myles Reichman, Ofc. of the Aty General/Ecology Division, Olympia, WA, Christopher W. Keay, Attorney at Law, Tacoma, WA, Bryce Haggard Dille, Attorney at Law, Puyallup, WA, for Defendant.
Richard L. Settle, Roger A. Pearce, Patrick John Schneider, Foster Pepper PLLC, Curtis R. Smelser, Averil Budge Rothrock, Colin Jeffrey Folawn, Aaron Matthew Laing, Schwabe Williamson & Wyatt PC, Seattle, WA, Kathleen Callison, Law Office of Kathleen Callison PS, Tumwater, WA, for Respondents.Rachael Paschal Osborn, Attorney at Law, Spokane, WA, David L. Monthie, DLM & Associates, Olympia, WA, for Amicus Curiae on behalf of Center for Environmental Law & P.WIGGINS, J.
[173 Wash.2d 328] ¶ 1 In 2007, five developers filed applications with the city of Yelm (City) for preliminary plat approval of proposed subdivisions. The only developer still party to this action, TTPH 3–8 LLC (Tahoma Terra), sought approval to develop 32 acres into residential lots. After a hearing examiner granted Tahoma Terra preliminary plat approval, JZ Knight, a nearby property owner and senior water rights holder, appealed to the Yelm City Council (City Council), arguing the hearing examiner's conditional approval of the plats erroneously allowed the developers and the City to delay showing adequate water provisions for the subdivision until the building permit stage. The City Council affirmed the preliminary plat approvals, and Knight filed an action in Thurston County Superior Court under the Land Use Petition Act (LUPA), chapter 36.70C RCW. This court must decide whether Knight had standing to bring the LUPA action. We hold that Knight established that the land use decision is likely to prejudice her water rights and satisfies the statutory standing requirement. We reverse the Court of Appeals.
¶ 2 JZ Knight owns property approximately 1,300 feet from the closest of the proposed subdivisions. To serve her property, Knight owns surface water rights to Thompson Creek and operates a domestic water system that is authorized to use groundwater under a water rights certificate. The City's wells and Knight's groundwater rights draw from the same aquifer, and Thompson Creek is also in hydraulic continuity with the City's wells.
¶ 3 At the time it applied for preliminary plat approval, Tahoma Terra had an approved conceptual master site plan and final master site plan pursuant to Yelm Municipal Code (YMC) 17.62.050–.070. Knight's attorney participated in the public hearing on the preliminary plat approval and presented a letter to the hearing examiner alleging that the City had overcommitted its water supply and did not have adequate water provisions to support the proposed developments, including Tahoma Terra.1 Knight asked the hearing examiner to deny the preliminary plat application or at least delay approval until the City demonstrated it had sufficient water rights approved by the Department of Ecology (DOE) to support the proposed developments. The City's director of community development stated that, though the City, as water purveyor, does not issue itself letters of water availability, the City had determined it could serve the water needs of the subdivisions, if approved. The hearing examiner left the record open to allow Tahoma Terra and the City to respond to Knight's argument, and, in posthearing submissions, Tahoma Terra and the City provided evidence of the City's water rights, current demand, and projected demand. The parties also submitted evidence of water rights conveyances and transfers by Tahoma Terra to the City that would purportedly provide sufficient water to serve the planned subdivision.
Hearing examiner's approval of the preliminary plats
¶ 4 The hearing examiner granted conditional preliminary plat approval to Tahoma Terra on October 9, 2007. Responding to Knight's claim that Tahoma Terra and the City must present evidence of adequate water supplies at the preliminary plat approval stage, the hearing examiner concluded
that concurrence,2 to include the provision of potable water and fire flow, must occur at the final binding site plan approval and/or upon submittal of an application for a building permit. At preliminary binding site plan approval, an applicant must show a reasonable expectancy that the water purveyor (in this case the City) will have adequate water to serve the development upon final approval.
Clerk's Papers (CP) at 1268. The hearing examiner concluded that the Growth Management Act (chapter 36.70A RCW), the state subdivision act (chapter 58.17 RCW), and the municipal code require an applicant to show adequate provision of water by the time of occupancy, not at the preliminary plat approval stage. The hearing examiner concluded that the City had met its burden to show a reasonable plan to provide water service.3
¶ 5 Knight moved for reconsideration. The hearing examiner denied the motion but added new findings, including:
While State law and the [YMC] require potable water supplies at final plat approval and building permit approval, the Examiner has added a condition of approval requiring such. However, the balance of the conditions of approval requested by [Knight's attorney] in his response are beyond the Examiner's authority and interfere with the City's ability to manage [its] public water system. Furthermore, the proposed conditions require actions by the City beyond the control of the applicant and are therefore not proper as the applicant cannot require the City to take such actions. These conditions would prohibit the applicant from getting final approval of its project even if it had satisfied all requirements for final plat approval.
Id. at 1283 (emphasis added). The hearing examiner also added a condition of approval:
The applicant must provide a potable water supply adequate to serve the development at final plat approval and/or prior to the issuance of any building permit except as model homes as set forth in Section 16.04.150 YMC.
Id. at 1284 (emphasis added). This condition of approval, specifically the hearing examiner's use of “and/or” and the indication that Tahoma Terra and the City could delay showing an adequate supply of water until the building permit stage, became the basis of Knight's appeal.
Yelm City Council approval of the preliminary plat
¶ 6 Knight appealed the hearing examiner's decision to the City Council, alleging multiple errors. On February 12, 2008, the City Council passed Resolution 481, a decision that “affirmed and amended” the hearing examiner's decision approving Tahoma Terra's preliminary plat application. Resolution 481's Conclusion of Law 3 stated:
JZ Knight has not shown that she will actually suffer any specific and concrete injury in fact, within the zone of interests protected by the legal grounds for her appeals, relating to the sole issue raised by her appeals, whether the appropriate provision for potable water has been made for the proposed developments. Therefore, Knight is not an aggrieved person with standing to appeal the Examiner's decision to the City Council.4 Notwithstanding the City Council's conclusion that Knight lacks standing to appeal, the City Council contingently decides Knight's appeals so that remand and rehearing will not be necessary if, in the future, there is a final judicial determination that Knight had standing to bring these appeals.
Id. at 26 (emphasis added). Resolution 481 also states, in relevant part:
The exact quantity of water rights that the City currently holds, which recently has been disputed by Knight, is immaterial because the City presented evidence, upon which the Hearing Examiner reasonably relied, that substantial additional water rights have been obtained by the City and that their transfer is reasonably expected to be approved [by] the State Department of Ecology (Ecology), and that substantial new water rights are the subject of water rights applications pending before Ecology. On the basis of such evidence, the Hearing Examiner concluded that the requirements of Section 58.17.110 RCW and Sections 15.40.010 and .020 YMC were satisfied by evidence supporting a reasonable expectation that ample water will be available at the time that water is required upon connection and entered written findings that appropriate provision was made for potable water.
... The City has made appropriate findings of water availability at the appropriate points in the application process....
Id. at 28. The City Council resolution did not explicitly require the City to show adequate water provisions at the final plat approval stage.
Knight's LUPA petition
¶ 7 Pursuant to LUPA, chapter 36.70C RCW, Knight filed a land use petition in Thurston County Superior Court challenging the City's preliminary plat approval. Section 6 of Knight's petition alleged facts demonstrating Knight's standing to seek judicial review under RCW 36.70C.060. Specifically, Knight alleged she owns undeveloped property in Yelm and has an interest in obtaining water connections when she develops the property. Additionally, Knight alleged she has DOE–approved senior water rights that would be directly and adversely affected by the City's approval of the preliminary plats. Section 7 of Knight's petition, entitled “A Separate and Concise Statement of Each Error Alleged to Have Been Committed,” contained 10 assignments of error, but did not assign error to the City Council's conclusion that she lacked standing under municipal code to appeal the...
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