Lauer v. Pierce Cnty.

• Decision Date: 15 December 2011
• Docket Number: No. 85177–8.,85177–8.
• Citation: 173 Wash.2d 242,267 P.3d 988
• Parties: Louise LAUER and Darrell de Tienne, Petitioners, v. PIERCE COUNTY; Mike and Shima Garrison and Betty Garrison, Respondents.
• Court: Washington Supreme Court

173 Wash.2d 242

267 P.3d 988

Louise LAUER and Darrell de Tienne, Petitioners,

v.PIERCE COUNTY; Mike and Shima Garrison and Betty Garrison, Respondents.

No. 85177–8.

Supreme Court of Washington, En Banc.

Argued Sept. 15, 2011.Decided Dec. 15, 2011.

Margaret Yvonne Archer, Attorney at Law, Tacoma, WA, for Petitioners.

Gregory Austin Jacoby, Jennifer Anne Irvine Forbes, McGavick Graves PS, Jill Guernsey, Pierce County Prosecutor's Office, Tacoma, WA, for Respondents.

OWENS, J.

[173 Wash.2d 248] ¶ 1 Louise Lauer and Darrell de Tienne separately own properties that neighbor a lot owned by Mike and Shima Garrison. Through a Land Use Petition Act (LUPA) petition, chapter 36.70C RCW, Lauer and de Tienne challenge a fish and wildlife variance granted to the Garrisons by Pierce County (the County) to build a single family residence within the protective buffer zone of a stream that runs across the Garrisons' property. The central issue before us is whether the Garrisons' rights vested in 2004 when they submitted their building application. The Garrisons also raise questions about the standing and timeliness of Lauer and de Tienne's claim, as well as whether the relevant critical area regulation even applies to the Garrisons' shoreline property. We hold that Lauer and de Tienne properly petitioned the superior court for review and that, because the Garrisons' building permit application contained misrepresentations of material fact, the Garrisons' rights did not vest in 2004.

FACTS

¶ 2 In December 2002, the Garrisons purchased a waterfront parcel of property on Henderson Bay in Gig Harbor, Washington. The property included an existing single-family residence. A Department of Natural Resources (DNR) Type 4 or Type 5 watercourse—specifically, a nonfish-bearing stream—runs southward across the southwest portion of the Garrisons' property. Petitioners Lauer and de Tienne are the Garrisons' neighbors to the east and west, respectively.

¶ 3 A few months after purchasing their property, the Garrisons illegally cleared vegetation from within the property's watercourse and its buffer. Former Pierce County Code (PCC) 18E.60.050(C), (D) (1997) required a 35–foot–wide buffer on both sides of “DNR Water Type 1 through 5” rivers and streams and an 8–foot–wide setback from the buffer for any construction over a certain size. See also Pierce County Ordinance 97–84, § 8 (Dec. 30, 1997). Current regulations require that the buffer be at least 65 feet wide. PCC 18E.40.060(B)(3).¹ Upon receiving a complaint about the clearing, the County investigated and issued a stop work order on March 7, 2003, instructing the Garrisons to stop clearing and requiring that they revegetate the area. As part of that process, the Garrisons submitted a planting plan to the County, including a diagram of their property, which depicted the “existing drainage” and, north of that, an “existing trail.” Clerk's Papers at 96–98.

¶ 4 In March 2004, the Garrisons filed a building permit application for a single-family residential dwelling between their existing home and the shoreline. The site plan diagram submitted with the application did not label the watercourse or its buffer and mislabeled the trail as an “existing drive.” ² Administrative R. (AR) at 263. The proposed residence was squarely within the 35–foot buffer of the watercourse. The County approved the permit, and the Garrisons began construction. In October 2004, the County conducted another site visit and issued another cease and desist order because the Garrisons were building within the drainage buffer. The building permit was suspended, and the Garrisons were directed to apply for a fish and wildlife variance within 60 days.

¶ 5 Instead, the Garrisons challenged the cease and desist order, and the County held a hearing on the matter. The Garrisons specifically claimed that a stream did not exist on their property and, alternatively, if it did, it was actually drainage that was illegally directed onto their parcel by de Tienne. A hearing examiner denied the Garrisons' claim, upholding the cease and desist order. The hearing examiner found that “[t]he drainage course [on the Garrisons' property] meets the definition of a DNR Type 4 or 5 watercourse and therefore requires a 35 foot wide, undisturbed buffer.” AR at 90. The hearing examiner also found that

the 2003 site plan prepared by the appellants in response to a Pierce County enforcement action regarding illegal clearing shows a “trail” alongside the drainage course in the same location as the “existing drive.” Numerous exhibits and substantial testimony show that a trail and not a “drive” existed historically along the east side of the drainage course. Appellants cannot, therefore, assert that they justifiably relied upon the Pierce County inspector's approval of the footing location.

Id. at 98 (emphasis added). The Garrisons' motion for reconsideration was denied.

[173 Wash.2d 251] ¶ 6 The Garrisons appealed the hearing decision to the superior court in a LUPA petition. According to the Garrisons, they voluntarily withdrew the petition based on an agreement with the County that they could “seek a variance and the County would process the variance under the regulations that were in effect in 2004.” Br. of Appellants Garrison at 8–9. Neither the LUPA petition nor the supposed agreement is part of the record before us, and therefore, we do not consider them.

¶ 7 Effective on March 1, 2005, the County changed the required buffer for streams like the one on the Garrisons' property from 35 feet to 65 feet. Pierce County Ordinance 2004–56s, § 4 (Oct. 19, 2004) (codified as PCC 18E.40.060(B)(3)). Besides the buffer increase, the County's requirements for acquiring a variance also became more stringent. Compare former PCC 18E.10.070(D)(4) (1997), with PCC 18.40.060(C)(2).

¶ 8 On August 9, 2007, over two years after the buffer and variance criteria changes, the Garrisons filed for a fish and wildlife variance. Lauer and de Tienne participated in the hearing, opposing the variance. In particular, Lauer and de Tienne argued that the applicable provisions for determining whether to grant the variance were the current regulations, not those in effect when the building permit was submitted in 2004. At the hearing, the County supported the Garrisons' efforts to get a variance, agreeing that the Garrisons' rights vested in 2004.

¶ 9 Following the hearing, a county deputy hearing examiner applied the 2004 regulations, finding that the Garrisons' rights had vested in March 2004, and approved the variance in December 2007. Lauer and de Tienne filed a request of reconsideration of the variance decision, which was denied on March 4, 2008.

¶ 10 Lauer and de Tienne then filed a LUPA petition on March 27, 2008, with the Pierce County Superior Court, pursuant to chapter 36.70C RCW. In August 2008, the superior court reversed the hearing examiner's decision to grant the Garrisons' variance based on regulations in effect at the time the building permit was submitted. The superior court held that Lauer and de Tienne were not barred from bringing the suit and that the hearing examiner erroneously applied the law to the facts when he found the Garrisons' March 2004 building permit application to be complete. The Garrisons appealed. The Court of Appeals held that the building permit application was complete as a matter of law under RCW 36.70B.070(4)(a). Lauer v. Pierce County, 157 Wash.App. 693, 709, 238 P.3d 539 (2010). Lauer and de Tienne sought, and we granted, discretionary review. Lauer v. Pierce County, 171 Wash.2d 1008, 249 P.3d 182 (2011).

ANALYSIS

¶ 11 Judicial review of land use decisions is governed by LUPA. Abbey Rd. Grp., LLC v. City of Bonney Lake, 167 Wash.2d 242, 249, 218 P.3d 180 (2009). LUPA authorizes the reversal of a local land use decision if the party seeking relief carries the burden of establishing one of six statutorily enumerated standards. RCW 36.70C.130(1).

¶ 12 In this case, the following three standards are implicated:

(b) The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise;

(c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court;

(d) The land use decision is a clearly erroneous application of the law to the facts.

Id. Whether a decision involves an erroneous interpretation of the law under standard (b) is a question of law that courts review de novo. Abbey Rd. Grp., 167 Wash.2d at 250, 218 P.3d 180. The substantial evidence standard of review, under standard (c), requires the court to determine whether a fair-minded person would be persuaded by the evidence of the truth of the challenged findings. Id. Under this standard, the court “consider[s] all of the evidence and reasonable inferences in the light most favorable to the party who prevailed in the highest forum that exercised fact-finding authority.” Id. Finally, under standard (d), a decision is clearly erroneous if, “although there is evidence to support it, the reviewing court on the record is left with the definite and firm conviction that a mistake has been committed.” Phoenix Dev., Inc. v. City of Woodinville, 171 Wash.2d 820, 829, 256 P.3d 1150 (2011).

¶ 13 We now sit in the same position as the superior court and generally confine our consideration to the administrative record before the hearing examiner. HJS Dev., Inc. v. Pierce County ex rel. Dep't of Planning & Land Servs., 148 Wash.2d 451, 468, 61 P.3d 1141 (2003). We hold that Lauer and de Tienne have carried their burden of establishing that the land use decision to grant a variance involved an erroneous interpretation of the law, pursuant to RCW 36.70C.130(1)(b).

I. Standing

¶ 14 The Garrisons challenge whether Lauer and de Tienne have standing to file a LUPA petition and whether, once challenged in Pierce County...