Nickum v. City of Bainbridge Island

• Decision Date: 24 November 2009
• Docket Number: No. 38217-2-II.,38217-2-II.
• Citation: 223 P.3d 1172,153 Wash. App. 366
• Court: Washington Court of Appeals
• Parties: George C. NICKUM, Jr. and Margaret D. Nickum, Husband and Wife, David M. Snedeker and Bonnie Snedeker, Husband and Wife, Appellants, v. CITY OF BAINBRIDGE ISLAND, a Washington Municipal Corporation, Verizon Wireless (VAW) LLC, a Delaware Limited Liability Company, Seattle SMSA Limited Partnership, a Delaware Limited Partnership, Jeffry E. Powers and Deborah Haase, Husband and Wife, and Puget Sound Energy, Inc., a Washington Corporation, Respondents.

223 P.3d 1172

153 Wash.App. 366

George C. NICKUM, Jr. and Margaret D. Nickum, Husband and Wife, David M. Snedeker and Bonnie Snedeker, Husband and Wife, Appellants, v.CITY OF BAINBRIDGE ISLAND, a Washington Municipal Corporation, Verizon Wireless (VAW) LLC, a Delaware Limited Liability Company, Seattle SMSA Limited Partnership, a Delaware Limited Partnership, Jeffry E. Powers and Deborah Haase, Husband and Wife, and Puget Sound Energy, Inc., a Washington Corporation, Respondents.

No. 38217-2-II.

Court of Appeals of Washington, Division 2.

November 24, 2009.

As Amended December 8, 2009.

George Cunningham Nickum, Jr., Attorney at Law, Bainbridge Island, WA, for Appellant(s).

Michael Charles Walter, Keating Bucklin McCormack Inc., PS, Charles Edward Maduell, Nigel P. Avilez, Davis Wright Tremaine LLP, Seattle, WA, Rod Paul Kaseguma, Rosemary Anne Larson, Attorneys at Law, Bellevue, WA, for Respondent(s).

VAN DEREN, C.J.

¶ 1George C. Nickum, Jr., Margaret D. Nickum, David M. Snedeker, and Bonnie Snedeker(collectively, the Nickums) filed a Land Use Petition Act (LUPA)¹ action on January 22, 2008, challenging a City of Bainbridge Island(City) decision to allow Verizon Wireless LLC(Verizon) to "construct a wireless communication facility on a Puget Sound Energy pole" on a neighbor's parcel.Before their LUPA action, the Nickums had filed an administrative appeal with a City hearing examiner in January 2008.The hearing examiner rejected their appeal on jurisdictional grounds because it was not filed within 14 days of the City's initial September 2007 decision to allow the construction.The trial court dismissed the Nickums' LUPA action for lack of standing and lack of jurisdiction.

¶ 2We affirm the dismissal.By filing a late administrative appeal, the landowners failed to exhaust administrative remedies—a requirement for LUPA standing—and the record does not support extending the administrative time limits under the doctrine of equitable tolling.The failure to correctly exhaust administrative remedies, in turn, means that the Nickums failed to meet the requirements that allow them to avail themselves of the superior court's LUPA jurisdiction when an action is filed within 21 days of the final land use decision, here, the City's September 2007 decision to allow the construction.

FACTS²

¶ 3 The Nickums own property on Bainbridge Island, Washington.Jeffry Powers and Debra Haase also own property on Bainbridge Island and leased a parcel to Verizon for the purpose of installing a utility pole with antennas and an equipment building.

¶ 4 In December 2006, Verizon applied to the City for a building permit to install the utility pole and building at issue in this appeal.The application stated that the permit was exempt from State Environmental Policy Act (SEPA)³ review under RCW 43.21C.0384 because Verizon would attach the antennas to an existing structure.⁴RCW 43.21C.0384(1)(a)(i).The City approved the SEPA exemption and issued the permit on September 14, 2007.Neither the City nor Verizon issued notice to the Nickums of the application, the SEPA exemption approval, or the permit approval.

¶ 5 On October 30, 2007, David Snedeker noticed work being done on the Powers and Haase parcel and learned about the permit.Nine days later, on November 8, 2007, the Nickums filed an appeal with the City hearing examiner, challenging the City's issuance of the building permit and challenging the SEPA exemption.

¶ 6 Verizon moved to dismiss the appeal as untimely.On January 3, 2008, the hearing examiner granted the dismissal motion, reasoning that the City of Bainbridge Island Municipal Code(BIMC) requires an appeal of an administrative land use decision to be "`filed with the City Clerk 14 days after the date of the decision or 21 days if the land use decision requires a SEPA threshold comment period.'"Clerk's Papers(CP)at 15(quotingBIMC § 2.16.130).The hearing examiner found that the parties filed the appeal against Verizon "more than 50 days after the issuance of the subject permit."CPat 15.The examiner affirmed this ruling on reconsideration on January 14, 2008, stating, "In order for the Hearing Examiner to have jurisdiction to hear and decide an appeal, it must be timely filed....[T]his appeal was not timely filed and it was correctly dismissed."CPat 16.

¶ 7 The Nickums filed a LUPA action in superior court on January 22, 2008, 19 days after the hearing examiner dismissed their appeal.The LUPA petition alleged that: (1) the City erred in concluding that Verizon was categorically exempt from SEPA regulation; (2) the permit violated the BIMC because it did not include height and set-back restrictions, Federal Communications Act⁵ compliance requirements, or screen or camouflage requirements; and (3) the lack of notice violated due process.With respect to notice, the Nickums alleged:

The inability of the [Nickums] to file an appeal within 14 days of the issuance of the building permit in this case was a result of the City of Bainbridge Island and Verizon Wireless claiming categorical exempt status under SEPA and therefore failing to give the notice required to the [Nickums] under SEPA.

CPat 9.The trial court, ruling on Verizon's CR12(b)(6) motion, dismissed the matter with prejudice for lack of standing and lack of jurisdiction.

¶ 8 The Nickums appeal.

ANALYSIS

I.Standing and Access to the Superior Court's LUPA Jurisdiction

¶ 9 The Nickums argue that the trial court erred when it dismissed their LUPA action for lack of standing and lack of jurisdiction.We disagree.

A.Standard of Review

¶ 10 Where the facts are not at issue, we review de novo rulings to dismiss for lack of jurisdiction under CR12(b)(1) and for failure to state a claim under CR12(b)(6).Wells v. Olsten Corp.,104 Wash.App. 135, 139, 15 P.3d 652(2001).Moreover, in matters involving undisputed facts in LUPA actions, we independently review the agency record.Twin Bridge Marine Park, LLC v. Dep't of Ecology,162 Wash.2d 825, 834, 175 P.3d 1050(2008).

B. LUPA Summary and Relevant Dates

¶ 11LUPA"provides the `exclusive means of judicial review' of land use decisions."Samuel's Furniture, Inc. v. Dep't of Ecology,147 Wash.2d 440, 449, 54 P.3d 1194(2002)(quotingRCW 36.70C.030(1)).A "`[l]and use decision'" is a "final determination by a local jurisdiction's body or officer with the highest level of authority to make the determination, including those with authority to hear appeals."RCW 36.70C.020(1).

¶ 12LUPA requires that, in order to create standing to challenge a land use action, a petitioner must first exhaust available administrative remedies.RCW 36.70C.060(2)(d).BIMC section 2.16.130(B)(1) requires parties to administratively appeal a land use decision within 14 days.Further, RCW 36.70C.040 requires a petitioner to file a LUPA action within 21 days of a land use decision.RCW 36.70C.040(3)."A land use petition is barred, and the court may not grant review, unless the petition is timely filed with the court and timely served on the following persons who shall be parties to the review of the land use petition: [listing parties]."RCW 36.70C.040(2)(a), (b), (c), (d).It is undisputed that the Nickums filed an appeal with the hearing examiner 50 days after the September 14, 2007, land use decision.The hearing examiner rejected the appeal for lack of timely filing on January 3, 3008.The Nickums then filed the LUPA action on January 22, 2008.

¶ 13 The Nickums argue that the principle of equitable tolling applies, extending their filing period.They maintain that, because "there was nothing to alert [them]" that Verizon was contemplating the addition, the time for appeal should not begin to run until the date they first realized the permit was approved, on October 30, 2007.Br. of Appellantsat 6.They add that the City's "intentional[]" decision to exempt Verizon from SEPA requirements—which, if applied, would have required notice—contrary to the content of Verizon's building permit application further counsels in favor of tolling their appeal period.

C.Administrative Appeal: Exhaustion and Standing

¶ 14LUPApetitioners must first exhaust administrative remedies to have standing to maintain a LUPA action in superior court.RCW 36.70C.060(2)(d).

The [exhaustion] doctrine is founded on the principle that the judiciary should give proper deference to that body possessing expertise in areas outside the conventional experience of judges, so that the administrative process will not be interrupted prematurely, so that the agency can develop the necessary factual background on which to reach its decision, so that the agency will have the opportunity to exercise its expertise and to correct its own errors, and so as not to encourage individuals to ignore administrative procedures by resorting to the courts prematurely.

Phillips v. King County,87 Wash.App. 468, 479-80, 943 P.2d 306(1997), aff'd,136 Wash.2d 946, 968 P.2d 871(1998);see alsoHarrington v. Spokane County,128 Wash.App. 202, 209-10, 114 P.3d 1233(2005).It is undisputed that the Nickums failed to comply with the 14 day deadline for appealing a land use decision in the administrative context.

1.SEPA Exemption Decision

¶ 15 As a preliminary matter, we consider Verizon's argument that the City's SEPA decision was not subject to administrative review by the hearing examiner.⁶Verizon argues that "[u]nlike the building permit decision, the SEPA exemption decision was not appealable to the Hearing Examiner" because the SEPA rules dictate that the City "may only allow administrative appeals of two types of agency decisions: (1) a final threshold determination ... and (2) a final environmental impact statement."Br. of Resp'tat 7 n. 3(citingWAC 197-11-680(3)(a)(iii)).We agree with Verizon that the SEPA decision was not subject to administrative appeal, but we base our decision on a different section of the Washington Administrative Code....