A Marital Cmty. v. County Of Chelan
| Decision Date | 10 August 2010 |
| Docket Number | No. 25378-3-III.,25378-3-III. |
| Citation | 237 P.3d 346,157 Wash.App. 417 |
| 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. Munson Engineers, Inc.; and Anton Roeckl, d/b/a WICO, Appellants. |
| Court | Washington Court of Appeals |
OPINION TEXT STARTS HERE
Chancey C. Crowell, Attorney at Law, Wenatchee, WA, for Appellants.
Brian Edward Lawler, Lawler Burroughs & Baker PC, Seattle, WA, for Respondents.
¶ 1 This is a land use case. In 1989, a developer applied for a conditional use permit to develop water-front property on Lake Chelan, Washington. The proposed development did not comply, and has never complied, with Chelan County zoning regulations. The proposed development went through numerous changes between 1989 and the present. A hearing examiner concluded that the developers' rights vested in the zoning regulations in effect in 1994. The trial court concluded that the application was incomplete and, accordingly, concluded that the examiner erred by holding that the developers' rights to this project vested in 1994. We agree and affirm the judgment of the trial court.
¶ 2 Beginning in 1989, Robert Culp, P.E., of Munson Engineers, Inc., applied on behalf of Anton Roeckl, doing business as WICO, (the Developers) for a conditional use permit to build townhouse condominiums and boat slips on Mr. Roeckl's property on Lake Chelan's southwest side.
¶ 3 The Developers revised their development plan numerous times between 1989 and June 2005. The original 1989 application was for “recreational beach area, erosion control, and to grade and rip-rap approximately 1000' of water frontage.” Administrative Record (AR) Doc. 33 at 12 (Chelan County Supplemental Staff Report CUP 1955). In 1990, the Developers revised the application for a conditional use permit to include a 30-unit townhouse cluster, a seawall, a swimming pool, boat slips, and a beach house. They also proposed to realign a county road and construct a pipe arch pedestrian underpass. The plans also included the originally proposed beach and water-front improvements.
¶ 4 In January 1991, the application was again revised. This time it called for 37 residential lots, 38 townhouse units, and the “boat slips” became a 32-boat slip marina. The application was also divided into two projects: one for the residential lots and one for the townhouse units and water-front improvements. The permit application for the townhouse units and water-front improvements is the subject of this appeal. In March 1991, that application was again revised to include 50 townhouse units (instead of 38), and a grocery and hardware store were added to the other improvements. In 1994, the application proposed 78 townhouses and two water-front residential units, an 88-boat slip marina, a grocery and hardware store, and a seawall. The application also proposed to realign a county road and to construct a pedestrian underpass. The complete development was to be situated on 10 acres.
¶ 5 In 1998, the Developers' application changed again. This time it eliminated the water-front residential units and the grocery and hardware store. It eliminated plans to realign the county road and to install a pedestrian underpass. It reduced the 88-boat slip marina to 80 slips. And it introduced and incorporated into the proposal bioengineered stream bank protection instead of a seawall.
¶ 6 The Chelan County Planning Department opened this latest application to public comment in 2001. A county hearing examiner then held a public hearing on the application in February 2002. The hearing examiner determined that the State Environmental Policy Act (SEPA), chapter 43.21C RCW, review process was incomplete and referred the application back to the planning department to finalize that process. He specifically declined to decide whether and when the application vested:
The Hearing Examiner is not making any Finding at this time as to whether or not the current application submitted on November 6, 1998, is complete and/or consistent with applicable Land Use Laws and Regulations.
AR Doc. 136 at 6 ().
¶ 7 In March 2003, the application changed again. This time the Developers proposed a separate floating breakwater and swim float, along with three sets of stairs through the bioengineered stream bank to accommodate a swimming area for condominium owners. The Chelan County Planning Department advised the Developers that the revision constituted a substantial change to the original application. The Developers then submitted another revised application in May 2003 that eliminated the proposed changes.
¶ 8 In June 2003, the Chelan County Planning Department again opened the Developers' revised application to public review and comment. Jeff Kelly and David and Nancy Dorsey (the Neighbors) own property near the proposed development. They wrote to the county and objected to the Developers' application.
¶ 9 The hearing examiner then held a public hearing on the revised application on July 29, 2005. By 2005, the Developers proposed to build 2 water-front single-family residences, 78 townhouse units, 80 boat slips, and a seawall, all on a 23-acre site. The Neighbors attended the public hearing and objected to the application.
¶ 10 The examiner concluded that the Developers' rights vested in laws and regulations in effect in 1994 instead of laws and regulations that took effect in 2000. In 2000, Chelan County revised its zoning regulations and comprehensive plan and rezoned and designated the Developers' property as “rural residential/resource 10” (RR10) and “rural waterfront” (RW). Clerk's Papers (CP) at 168. The comprehensive plan and zoning regulations of 2000 permitted only one dwelling unit per 10 acres on the Developers' property. Chelan County Comprehensive Plan RU-14, RU-18 (2000); Chelan County Resolution No.2000-129, at 39, 41.
¶ 11 Before 2000, the county's comprehensive plan designated the Developers' property as “rural,” proscribing a less restrictive one unit per acre. Lower Lake Chelan Basin Comprehensive Plan at 54 (1990). Before 2000, the county's code zoned the Developers' property “General Use”; that designation allowed single-family or duplex dwellings and agricultural uses on lots no smaller than 10,000 square feet. Former Chelan County Code (CCC) 11.36.010(1) (1977); former CCC 11.36.030(1979). The property could also be subdivided outright for these purposes. Former CCC 11.36.010(4). Any other use required a conditional use permit. Former CCC 11.36.020 (1974). The hearing examiner ultimately approved the Developers' application under the pre-2000 regulations and granted them a conditional use permit, conditioned on securing the necessary governmental approvals for the project within two years of the issuance of the permit.
¶ 12 The Neighbors appealed the hearing examiner's decision to the Chelan County Superior Court. The superior court concluded that the application did not vest before zoning changes on October 17, 2000. The court then reversed the hearing examiner's decision and revoked the Developers' conditional use permit. CP at 126.
¶ 13 The Developers appealed. We concluded that the permit expired by its own terms because the Developers failed to secure the necessary governmental approvals within two years of the issuance of the conditional use permit, and we dismissed the appeal as moot. Kelly v. Chelan County, 145 Wash.App. 166, 185 P.3d 1224 (2008). The Developers appealed to our State Supreme Court. That court granted review. Kelly v. Chelan County, 165 Wash.2d 1019, 203 P.3d 378 (2009). The Supreme Court concluded that the two-year time limit did not apply pending appellate review, and so the Developers were not required to seek a stay to preserve their right to appeal. Kelly v. Chelan County, 167 Wash.2d 867, 872-73, 224 P.3d 769 (2010). The Supreme Court then reversed our decision and remanded to us for a decision on the merits. Id. at 873, 224 P.3d 769.
¶ 14 We review de novo a superior court's decision to reverse a hearing examiner's land use decision. Sylvester v. Pierce County, 148 Wash.App. 813, 822, 201 P.3d 381 (2009). We consider only the record before the hearing examiner and will uphold the examiner's decision here unless the Neighbors show that he erroneously interpreted the law, failed to base findings of fact on substantial evidence, or erroneously applied the law to the facts. City of University Place v. McGuire, 144 Wash.2d 640, 647, 30 P.3d 453 (2001); RCW 36.70C.130(1)(b)-(d). Also, the question presented here is, as we will conclude, a question of law, so for that reason also our review is de novo. University Place, 144 Wash.2d at 647, 30 P.3d 453.
¶ 15 The essential question here is whether the Developers' application for a conditional use permit is sufficient to invoke the vested rights doctrine and vest the Developers' rights in the 1994 zoning regulations.
¶ 16 The “vested rights doctrine” provides that a developer who files a completed land use application that complies with zoning laws and regulations in force at the time of application has a vested right to develop land under those laws and regulations. Hull v. Hunt, 53 Wash.2d 125, 130, 331 P.2d 856 (1958); Weyerhaeuser v. Pierce County, 95 Wash.App. 883, 890, 976 P.2d 1279 (1999). “Vesting ‘fixes' the rules that will govern the land development regardless of later changes in zoning or other land use regulations.” Weyerhaeuser, 95 Wash.App. at 891, 976 P.2d 1279. The purpose of the doctrine is to ensure “certainty and predictability in land use regulations.” Abbey Road Group, LLC v. City of Bonney Lake, 167 Wash.2d 242, 250-51, 218 P.3d 180 (2009).
¶ 17 The Supreme Court has rejected the distinction between ministerial and discretionary acts...
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