Norco Const., Inc. v. King County

• Decision Date: 29 July 1982
• Docket Number: No. 48040-1,48040-1
• Citation: 97 Wn.2d 680,649 P.2d 103
• Parties: NORCO CONSTRUCTION, INC., a Washington corporation, Respondent, v. KING COUNTY, Washington, a Municipal Corporation, and the King County Council, Petitioners.
• Court: Washington Supreme Court

Page 680

97 Wn.2d 680

649 P.2d 103

NORCO CONSTRUCTION, INC., a Washington corporation, Respondent, v. KING COUNTY, Washington, a Municipal Corporation, and the King County Council, Petitioners.

No. 48040-1.

Supreme Court of Washington, En Banc.

July 29, 1982.

Norman K. Maleng, King County Prosecutor, Susan Agid, Deputy Pros. Atty., Seattle, for petitioners.

Inslee, Best, Chapin, Uhlman & Doezie, P. S., Richard U. Chapin, Bellevue, for respondent.

UTTER, Justice.

Norco Construction, Inc. filed a preliminary plat application for subdivision which conformed to the then existing King County Comprehensive Plan and all applicable laws and policies in effect in the County. It conflicted only with a proposed comprehensive plan. Action on the plat was postponed indefinitely by the County and after the passage of a substantial time during which no definitive action was taken by the County, Norco filed a writ of mandamus to compel the County to act. The trial court granted the writ and directed the County to consider the application on its next agenda on the basis of the zoning procedures and ordinances existing at the time the preliminary plat application was completed. It also prohibited the County from considering or using the proposed plan in determining whether to concur in the report and recommendation of the hearing examiner on the plat.

On appeal, the Court of Appeals in Norco Const. Inc. v. King County, 29 Wash.App. 179, 627 P.2d 988 (1981), affirmed the action of the trial court, holding the County had no right to defer decision on the preliminary plat application beyond the time limit of 90 days from the day the application was filed pursuant to RCW 58.17.140. It further held that upon expiration of that time limit Norco acquired a "vested right" to a decision "on the basis of the zoning ordinances, comprehensive plan and rules of procedure in effect on January 8, 1979 when the preliminary plat application was completed." 29 Wash.App. at 192, 627 P.2d 988.

We conclude the Court of Appeals correctly held the Council may not defer beyond the statutory time period approval or disapproval of a preliminary plat because it is not in conformity with proposed changes to the County's comprehensive plan and zoning ordinances. We also hold such proposed changes are not a valid basis for disapproval of a plat application within the time period required by statute. Finally, we agree, without discussion, that mandamus is proper to order the Council to act on the preliminary plat of a proposed subdivision.

In 1975, a citizens' committee was created to formulate a Soos Creek Plateau Communities Plan (Soos Creek Plan) to be adopted as an amendment to the County's comprehensive plan. The committee met during the following 2 years. In May 1977, respondent Norco submitted its Star View Acres plat application with a density of 1 unit per acre. The following month, in June 1977, the citizens' committee submitted a draft Soos Creek Plan to the Council contemplating density of 1 unit per 5 acres in the vicinity of the proposed Star View Acres. The applicant's plat is for 75 acres in the Soos Creek Plateau area, a 73-square-mile area located east of the cities of Renton, Kent and Auburn, and above the Green River Valley in southwest King County.

In August 1977, a county hearing examiner recommended approval of the Star View Acres preliminary plat application while identifying its inconsistency with the prospective Soos Creek Plan. The examiner's recommendation was then forwarded to the King County Council. On October 31, 1977, the plat application was placed on the Council agenda and referred to the planning and community development committee considering the pending Soos Creek Plan. On November 11, 1977, the hearing examiner notified respondent Norco that health department approval of sewage and water systems was required prior to preliminary plat approval, although in fact this is only required for final plat approval. RCW 58.17.150(1); King County Code 19.28.050(c).

On January 30, 1978, the Council passed ordinance No. 3579 (King County Code 19.08.250) providing for approval of preliminary plats if the water system is "adequate" but providing for deferral of approval when a hearing examiner has identified the plan as inconsistent with the community plan adopted by "the applicable citizens community plan committee and referred to the County for adoption". On December 11, 1978, respondent received health department approval of its water and sewage facilities.

The County did not act further, and after completing its application on January 8, 1979, Norco filed a petition for writ of mandamus in Superior Court in February 1979. In April 1979, the trial court issued its writ of mandamus. In November 1979, the citizens' committee Soos Creek Plan was adopted by the Council with maximum density for Star View Acres of 1 unit per 5 acres.

The principal complaint of the County is directed to that portion of the Court of Appeals opinion which states:

When the statutory time within which the legislative body of a political subdivision of the State must act on a preliminary plat has expired without the required action being taken, the applicant then acquires certain vested rights in connection with the plat application.

29 Wash.App. at 188, 627 P.2d 988. Washington does adhere to the minority rule that a landowner obtains a vested right to develop land when he or she makes a timely and complete building permit application that complies with the applicable zoning and building ordinances in effect on the date of the application. Hull v. Hunt, 53 Wash.2d 125, 331 P.2d 856 (1958); State ex rel. Ogden v. Bellevue, 45 Wash.2d 492, 275 P.2d 899 (1954). See Comment, Washington's Zoning Vested Rights Doctrine, 57 Wash.L.Rev. 139 (1981). Our vested rights rule also has been applied to building permits, Ogden, supra; Hull, supra; conditional use permits, Beach v. Board of Adjustment, 73 Wash.2d 343, 438 P.2d 617 (1968); a grading permit, Juanita Bay Valley Community Ass'n v. Kirkland, 9 Wash.App. 59, 510 P.2d 1140 (1973); and a substantial development permit, Talbot v. Gray, 11 Wash.App. 807, 525 P.2d 801 (1974).

The County argues a vesting rule is inappropriate in this context. We agree with the County that the terminology "vested right" is inappropriate, but hold Norco did have a right to a decision on its preliminary plat application based on the factors relevant 90 days after filing its application.

I

The County urges this vesting rule should not be applied to plat applications inasmuch as Council decisions are discretionary. The distinction between ministerial and discretionary acts is not relevant to the validity of procedural limits placed on the decision-making entity. The need for a "date certain" upon which a right vests is to avoid tactical maneuvering between parties and that need would appear equally strong whether the act is discretionary or ministerial. Hull v. Hunt, supra, 53 Wash.2d at 130, 331 P.2d 856.

The basic rule in land use law is still that, absent more, an individual should be able to utilize his own land as he sees fit. U.S.Const. amends. 5, 14. Although zoning is in general, a proper exercise of police power which can permissibly limit an individual's property rights, it goes without saying that the use of police power cannot be unreasonable. State ex rel. Randall v. Snohomish County, 79 Wash.2d 619, 488 P.2d 511 (1971); In re Girsh, 437 Pa. 237, 263 A.2d 395 (1970). While local governments exist to provide necessary public services to those living within their borders and to avoid harms in their protection of the public's health, safety, and general welfare, exercise of this authority must be reasonable and rationally related to a legitimate purpose of government such as avoiding harm or protecting health, safety and general, not local or parochially conceived, welfare. Save a Valuable Environment v. Bothell, 89 Wash.2d 862, 576 P.2d 401 (1978); Randall, supra; Farrell v. Seattle, 75 Wash.2d 540, 452 P.2d 965 (1969); Southern Burlington County NAACP v. Mount Laurel, 67 N.J. 151, 177-78, 336 A.2d 713, cert. denied, 423 U.S. 808, 96 S.Ct. 18, 46 L.Ed.2d 28 (1975).

Not only are local governments limited by due process protections in how they zone communities, they are similarly limited in the decisions they make under the adopted zoning plan. Unreasonable delay in approving plat applications may be just as much an exclusionary device as an unconstitutional exclusionary zoning plan itself. As one commentator has stated:

At some point, however, the clear inference arises that delay is being used as a device to exclude. Such an inference is irresistible in circumstances where planning board or other approving agency meetings are infrequent, canceled, or simply not scheduled; where relatively minor defects in developer submissions give rise to a tabling of the proposal; where requests for additional data, new information, or the input of state or local agencies are made at each stage of the review process or strung out interminably; where the criteria of judgment continually shift; or where local officials suggest, often informally, that project approval might be more readily forthcoming if the developer voluntarily made concessions not technically required by law.

Delogu, The Misuse of Land Use Control Powers Must End: Suggestions for Legislative and Judicial Responses, 32 Me.L.Rev. 29, 51-52 (1980). As an example of misuse of land use control powers, the line between the permissible scope of what has been called "contract zoning" and overreaching by local officials to extract extra-legal concessions from developers is a thin one. Compare Sylvania Elec. Prods. Inc. v. Newton, 344 Mass. 428, 183 N.E.2d 118 (1962) and Church v. Islip, 8 N.Y.2d 254, 168 N.E.2d 680, 203 N.Y.S.2d 866 (1960) with New Prods. Corp. v. North Miami, 241 So.2d 451 (Fla.Dist.Ct.App.1970); Hedrich v. Niles, 112 Ill.App.2d 68, 250...