Process v. Tent City 4

• Decision Date: 01 June 2010
• Docket Number: No. 63504-2-I.,63504-2-I.
• Citation: 232 P.3d 1163,156 Wash.App. 393
• Court: Washington Court of Appeals
• Parties: MERCER ISLAND CITIZENS FOR FAIR PROCESS, Appellant,v.TENT CITY 4, an unicorporated Washington association; Share/Wheel, an advocacy organization comprised of the Seattle Housing and Resource Effort (“SHARE”) and the Women's Housing Equality and Enhancement League (“WHEEL”), a Washington non-profit corporation; Mercer Island United Methodist Church, a Washington non-profit corporation, and the City of Mercer Island, a Washington municipal corporation, Respondents.

156 Wash.App. 393

232 P.3d 1163

MERCER ISLAND CITIZENS FOR FAIR PROCESS, Appellant,v.TENT CITY 4, an unicorporated Washington association; Share/Wheel, an advocacy organization comprised of the Seattle Housing and Resource Effort (“SHARE”) and the Women's Housing Equality and Enhancement League (“WHEEL”), a Washington non-profit corporation; Mercer Island United Methodist Church, a Washington non-profit corporation, and the City of Mercer Island, a Washington municipal corporation, Respondents.

No. 63504-2-I.

Court of Appeals of Washington Division 1.

June 1, 2010.

Jane Ryan Koler, Law Office of Jane Ryan Koler PLLC, Gig Harbor, WA, for Appellant.

Kathleen H. Knight, City of Mercer Island, WA, Michael Charles Walter, Keating Bucklin McCormack Inc. PS, Seattle, WA, for Respondent, City of Mercer Island.

Ted Paul Hunter, Attorney at Law, Seattle, WA, Sean Adam Russel, Stokes Lawrence Velikanje Moore & Shore, Yakima, WA, for Respondent, Share Wheel.

Ted Paul Hunter, Attorney at Law, Seattle, WA, Mark. F. Rising, Helsell Fetterman LLP, Seattle, WA, for Respondent, United Methodist Church.

GROSSE, J.

¶ 1 The failure to timely challenge a land use decision by means of a Land Use Petition Act (LUPA) ¹ petition bars any further claims challenging that decision, including challenges to the process for approving that decision. Here, the city's approval of a temporary use agreement that permitted a church to use its property to host a homeless encampment was a land use decision within the meaning of LUPA because it was a decision on the church's application for government approval required by law of a property use. Thus, the plaintiff's failure to challenge that decision in a timely LUPA petition bars its due process claims, including its claims for damages under 42 U.S.C. 1983, because those claims are simply challenges to the approval of the temporary use agreement. Accordingly, we affirm.

FACTS

¶ 2 In the spring of 2006, the Mercer Island Clergy Association (MICA) approached the city of Mercer Island (City) about allowing a church to host “Tent City 4,” a homeless encampment. Tent City 4 was organized and managed by a non-profit organization comprised of the Seattle Housing and Resource Effort and the Women's Housing Equality and Enhancement League (SHARE/WHEEL). Over the next two years, the City, MICA, and SHARE/WHEEL explored options for hosting Tent City 4.

¶ 3 In the spring of 2007, MICA announced its intent to have the Mercer Island United Methodist Church host the encampment. The church is located in a single-family residential zone. The Mercer Island City Code (MICC) does not permit such temporary encampments in a single family residential area.²

¶ 4 The City acknowledged that the present code did not authorize such an encampment, but based on past litigation in other municipalities over similar church-sponsored homeless encampments, the City determined it was unlikely to prevent the church from hosting the Tent City 4 encampment. Rather than passing an ordinance authorizing the encampment and amending the city code as other municipalities had done, the City decided instead to enter into a binding “Temporary Use Agreement” (TUA), that would permit the church to host Tent City 4 and would ensure that all city code and regulatory requirements would be met.

¶ 5 In May 2008, MICA leadership invited city staff to meet with a newly-appointed Tent City 4 subcommittee and the pastor of the church. At that meeting, city staff discussed the specific terms of the proposed TUA. Over the next two weeks, the City drafted the TUA, which was signed by representatives of the church and SHARE/WHEEL.

¶ 6 On June 11, 2008, notice of a city council meeting to be held on June 16, 2008 was published in the newspaper The Mercer Island Reporter and noted that the council would consider the TUA. The agenda for the meeting was also posted on the city's website and included the council's consideration of the TUA. On June 16, 2008, the meeting was held and approximately 26 people testified about the TUA. The council then unanimously approved the TUA.

¶ 7 The TUA permitted the church to invite Tent City 4 to operate its homeless encampment on church property beginning August 5, 2008 for a period of up to 93 days. The TUA acknowledged that “[c]ourt decisions hold that a church sponsoring a Temporary Homeless Encampment on its own property constitutes protected religious expression,” and that “[t]he [MICC] does not anticipate a Temporary Homeless Encampment such as that operated by SHARE/WHEEL, and none of the city's regulations or administrative procedures address this special use.” The TUA then set forth a number of conditions on the encampment such as visual buffers, lighting, maximum number of residents, warrant and sex offender status checks on residents, parking, code of conduct, and compliance with state and city codes. The TUA also provided for notice and permit requirements before opening an encampment.

¶ 8 On July 10, 2008, a citizens group, Mercer Island Citizens for Fair Process (group), filed a complaint against the City, church, and SHARE/WHEEL and challenged the TUA, seeking an injunction and temporary restraining order. The group also asserted claims alleging due process violations, nuisance, and violations under 42 U.S.C. section 1983. The court held a hearing on the motion for a temporary restraining order on July 28, 2009, and denied the motion on August 4, 2008, the day before the Tent City 4 encampment was scheduled to open on church property. The group did not appeal the court's denial of the temporary restraining order.

¶ 9 On August 28, 2008, the City moved for summary judgment, seeking dismissal of the group's remaining claims.³ The City contended that the claims should have been asserted in a LUPA petition and that the 21-day limitation period for filing a LUPA claim had passed. The trial court granted the City's motion, dismissed the group's claims, and denied the group's cross-motion for summary judgment. The group appeals.

ANALYSIS

¶ 10 The group first contends that the TUA was not a land use decision and therefore the limitation period for challenging land use decisions under LUPA does not apply to bar its claims. We disagree.

¶ 11 LUPA provides the process for judicial review of land use decisions. The stated purpose of LUPA is

to reform the process for judicial review of land use decisions made by local jurisdictions, by establishing uniform, expedited appeal procedures and uniform criteria for reviewing such decisions, in order to provide consistent, predictable, and timely judicial review.^[4]

“[T]he act quite clearly declares [the] legislative intent that chapter 36.70C RCW is to be ‘the exclusive means of judicial review of land use decisions.’ ” ⁵

¶ 12 Under RCW 36.70C.020(2),⁶ LUPA defines “land use decision” as

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, on:

(a) An application for a project permit or other governmental approval required by law before real property may be improved, developed, modified, sold, transferred, or used, but excluding applications for permits or approvals to use, vacate, or transfer streets, parks, and similar types of public property; excluding applications for legislative approvals such as area-wide rezones and annexations; and excluding applications for business licenses;

(b) An interpretative or declaratory decision regarding the application to a specific property of zoning or other ordinances or rules regulating the improvement, development, modification, maintenance, or use of real property; and

(c) The enforcement by a local jurisdiction of ordinances regulating the improvement, development, modification, maintenance, or use of real property. However, when a local jurisdiction is required by law to enforce the ordinances in a court of limited jurisdiction, a petition may not be brought under this chapter.^[7]

¶ 13 A land use decision becomes unreviewable by the courts if not appealed to the superior court within LUPA's specified 21-day timeline. ⁸ Once the 21-day period passes, a land use decision becomes final and binding and is deemed valid and lawful.⁹ Thus, “even illegal decisions must be challenged in a timely, appropriate manner.” ¹⁰

¶ 14 The group contends that the TUA is not a land use decision because it does not fall within any of the categories specified in RCW 36.70C.020(2). The group first contends that the TUA is not “a project permit or other governmental approval required by law” under subsection (2)(a) because no city law authorized or described the temporary property use. The group notes that in fact the city code prohibits such temporary uses and provides that initial land use decisions are made by code officials, the planning commission, or the city hearing examiner, not the city council.

¶ 15 The City contends that the TUA amounts to “other governmental approval required by law” because it was the result of the church's request that the City approve its use of its property to host Tent City 4. The group argues that such approval was not required-and in fact prohibited-by the city code, but as the City contends, it is required by state law. In City of Woodinville v. Northshore United Church of Christ, the court held that the city's refusal to process a permit to allow a church to host a Tent City encampment “substantially burden[ed] the free exercise of the Church's religious ‘sentiment, belief [or] worship,’ ” and recognized that the cities have authority to address impacts and “externalities” resulting from such homeless encampments.¹¹ Additionally, as recognized in the TUA's recitals, the City approved the TUA to protect the welfare of Mercer Island citizens as required by law:

G. The City of Mercer Island, its elected and appointed officials are committed to protect the health, safety and well-being of its citizens,

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