Loveless v. Yantis

• Decision Date: 06 September 1973
• Docket Number: No. 42706,42706
• Parties: Morris J. LOVELESS and Christine Loveless, husband and wife, Respondents, v. George F. YANTIS, Jr., et al., Appellants.
• Court: Washington Supreme Court

Page 754

82 Wn.2d 754

513 P.2d 1023

Morris J. LOVELESS and Christine Loveless, husband and wife Respondents, v. George F. YANTIS, Jr., et al., Appellants.

No. 42706.

Supreme Court of Washington, En Banc.

Sept. 6, 1973.

John S. Robinson, Jr., Olympia, Gordon, Thomas, Honeywell, Malanca, Peterson, O'Hern & Johnson, James A. Furber, Tacoma, Smith Troy, Pros. Atty., Olympia, for appellants.

Ernest L. Meyer, Olympia, for respondents.

UTTER, Associate Justice.

This is an appeal from a superior court judgment which granted preliminary approval to a plat filed by Morris J. Loveless, affecting property on Cooper Point in Thurston County. The court declared the Thurston County commissioners' refusal to grant approval arbitrary and capricious.

The basic issues raised are: (1) whether the intervenor- appellants ¹ are entitled as a matter of right to intervene; (2) whether the offered plat on its face violates the county zoning ordinances; (3) whether the incomplete record of the county proceedings on this matter brought before the court was inadequate to support the court's judgment; and (4) whether an environmental impact statement pursuant to RCW 43.21 is a necessary prerequisite for preliminary approval of the plat.

Each issue is answered in the affirmative and we reverse the trial court.

The property in question is on a glacially-formed peninsula at the southern extremity of Puget Sound, known as Cooper Point. The point is approximately 4 miles wide at its base, narrows to less than a mile at its northern tip, and extends 7 1/2 miles into the salt water. There is extensive marine life and a wide assortment of vegetation and wildlife. The peninsula rises steeply from the coastal beaches and its interior is primarily a rolling terrace.

Recently a new state college has located toward the point's base. The respondent-Loveless' project, called 'By the Sea', is proposed for the narrow tip of the point and would consist of multi-family condominiums.

On or about March 3, 1972, respondent filed an application with the Thurston County Planning Department, (pursuant to county ordinance No. 3829), for preliminary approval of his plat. A public hearing was held by the Thurston County Planning Commission on the application and a recommendation that the plat be denied was made on April 27, 1972. The recommendation failed to provide the required reasons for denial and when the county commissioners received the matter (pursuant to RCW 58.17.100), they consulted with the applicant and by mutual agreement returned it to the planning commission for further consideration and with instruction to state specific reasons if the plat was again rejected.

A subcommittee of the planning commission recommended preliminary approval; however, the planning commission referred the matter back to committee for preparation of an environmental impact statement. At this point in the planning commission's review, respondent asked the county commissioners to reconsider the matter, arguing that no environmental impact statement was required. A public hearing was held by the commissioners on August 9, 1972, and an order denying the application for the preliminary approval of the plat was entered on August 14, 1972.

Respondent appealed this order to superior court. The Cooper Point Association and Cooper's Point Water Company, Inc. appeared at an October 9, 1972 hearing requesting permission to intervene. They were denied intervention but permitted to submit briefs and argue the merits of the case as amicus curiae. Court then recessed, and before reconvening, Mrs. Katherine Partlow Draham filed a separate motion to intervene. On December 6, 1972, all motions to intervene were again denied, but all were permitted to argue as amicus curiae. The court then found the failure of the commissioners to provide any reason for refusing to grant preliminary approval to the plat constituted an arbitrary and capricious decision and granted the preliminary approval sought.

Appellant-commissioners began an appeal to the Court of Appeals, while the intervenor-appellants petitioned the Supreme Court for a writ of certiorari authorizing them to intervene. By order of the Chief Justice the petition was granted, those seeking to intervene were permitted to appear on appeal, and the two appeal processes were consolidated into this review.

The Cooper Point Association, the Cooper's Point Water Company, and Katherine Partlow Draham should have been allowed to intervene as a matter of right. This question is controlled by Civil Rule for Superior Court 24(a). ² The trial court found those seeking to intervene were not timely, had no claim as a matter of right, and were not necessary or proper parties to the cause. We find it necessary to rule only on the issue of intervention as a matter of right.

CR 24(a) requires an intervenor to show that he claims an interest relating to the property that is the subject of the action; that disposition of the action may impair his ability to protect that interest; that his interest is not being adequately represented by existing parties; and that his appeal is timely.

Each of the intervenors has the necessary interest in the property. The interest of the Cooper's Point Water Association and Katherine Partlow Durham is direct as property owners 'who feel themselves aggrieved' and who would have had a right to appeal the ruling of the commission had it been adverse to them. They could, in addition, have shown special damages by way of diminution in value of their property resulting from the action of defendants. Park v. Stolzheise, 24 Wash.2d 781, 167 P.2d 412 (1946).

The Cooper Point Association, likewise, has an interest in the property. An organization whose members are injured may represent those members in proceedings for judicial review. NAACP v. Button, 371 U.S. 415, 428, 9 L.Ed.2d 405, 83 S.Ct. 328 (1963). With the members of the association here all residents of the area affected, the association has a direct enough interest to challenge the administrative action. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).

The intervenors are likewise in a position, where the disposition of the action may impair their ability to protect their interests. Our ruling regarding the nature of a preliminary plat establishes that it is not merely an insignificant stage of the proceedings without real consequence. The failure to litigate environmental and zoning issues at this stage could result in decisions being reached by the county that have a binding impact on intervenors without their consent or participation.

Intervenor-appellants are not per se adequately represented by the fact that the county is appealing. Actual proof in this case of that fact is shown by the county's failure to urge any of the grounds upon which we base our ruling. ³ In addition, the county must consider the interests of all the residents of the county, where the affected property owners represent a more sharply focused and sometimes antagonistic viewpoint to that of the county as a whole. Herzog v. Pocatello, 82 Ida. 505, 356 P.2d 54 (1960); Bredberg v. Wheaton, 24 Ill.2d 612, 182 N.E.2d 742 (1962).

The motions to intervene were also timely. CR 24(a) should be interpreted to allow an intervention of right unless it would work a hardship on one of the original parties. Wolpe v. Poretsky, 79 U.S.App.D.C. 141, 144 F.2d 505 (1944), cert. denied, 323 U.S. 777, 65 S.Ct. 190, 89 L.Ed. 621 (1944); Esso Standard Oil Co. v. Taylor, 399 Pa. 324, 159 A.2d 692 (1960).

The failure of intervenors to follow Civil Rule for Superior Court 6(d), requiring service of motions 5 days before the time specified for the hearing, was not fatal in this case. The rule is not jurisdictional. Where the party had actual notice and time to prepare to meet the questions raised by the motions of the adversary, deviation from the time limit may be permissible. Herron v. Herron, 255 F.2d 589 (5th Cir. 1958); 4 Wright & Miller, Federal Practice & Procedure § 1169, at 644 n. 30 (1969).

There was ample notice and time to prepare here. The appearance of intervenors as amicus curiae gave respondent adequate opportunity to know the issues raised and be prepared to meet them. The motion to intervene is granted in this appeal and as a matter of right should have been granted in the trial.

Respondent's submitted plat, on its face, violates the existing Thurston County zoning ordinance (No. 3744) in two respects. First, the proposal contemplates structures which are not permitted in a suburban-agriculture use district like northern Cooper Point, and it contemplates a 'Planned Area Development' which is also not permitted.

A preliminary plat is defined by Thurston County ordinance No. 3829, section 2, as

A neat and approximate drawing of the proposed layout of streets, blocks, lots and Other elements of a plat or subdivision which shall furnish the basis for the Planning Commission's approval or disapproval of the general layout of the plat or subdivision.

(Italics ours.) This is similar to RCW 58.17.020(4). The documents filed by respondent show not only the proposed streets but the height and location of the structures to be served by these streets. The plat layout, therefore, related elements of the proposed subdivision, apparently in an effort to submit a 'Planned Area Development'.

Some of the proposed structures in the plat were 40, 50, and 110 feet high. Given this detail, the administrative body reviewing the plat was on notice that possible violations of the zoning prohibition that 'No building or structure shall exceed two (2) stories or thirty-five (35) feet in height, whichever is less' in a suburban-agriculture zone existed. Respondent contends any height violations are immaterial at the preliminary approval stage of a plat, since a preliminary plat is only an approximate drawing of streets, blocks, and lots with the question of zoning compliance...