Thompson v. City of Mercer Island

• Decision Date: 14 March 2016
• Docket Number: No. 72809–1–I.,72809–1–I.
• Citation: 193 Wash.App. 653,375 P.3d 681
• Parties: Daniel P. THOMPSON and Theodore Misselwitz, Appellants, v. CITY OF MERCER ISLAND, Respondent, Anderson Architecture, Applicant, and On the Rock, Owner, Additional Parties Pursuant to RCW 36.70C.040(2)(b)-(d).
• Court: Washington Court of Appeals

193 Wash.App. 653

375 P.3d 681

Daniel P. THOMPSON and Theodore Misselwitz, Appellants

v. CITY OF MERCER ISLAND, RespondentAnderson Architecture, Applicant, and On the Rock, Owner, Additional Parties Pursuant to RCW 36.70C.040(2)(b)-(d).

No. 72809–1–I.

Court of Appeals of Washington, Division 1.

March 14, 2016.

Publication Ordered May 4, 2016.

As Amended on Denial of Reconsideration May 4, 2016.

Daniel Parnell Thompson, Attorney at Law, Seattle, WA, for Appellants.

Kathleen H. Knight, Kari L. Sand, Christina M. Schuck, City of Mercer Island, Mercer Island, WA, for Respondent.

Mario August Bianchi, Lasher Holzafel Sperry Ebberson PLLC, Joseph Zachary Lell, Ogden Murphy Wallace PLLC, Bio F. Park, Attorney at Law, Seattle, WA, for Other Parties.

BECKER, J.

Daniel Thompson and Theodore Misselwitz appeal the trial court's dismissal of their land use petition for lack of standing. Misselwitz lacks standing because he failed to exhaust his administrative remedies under Mercer Island's city code. Thompson lacks standing because he fails to demonstrate that he was prejudiced by the land use decision. We affirm.

FACTS

¶ 2 On the Rock, a limited liability company, owned two vacant lots located on Mercer Island. In 2009, the city of Mercer Island approved a short plat dividing the vacant lots into two 12,000–square–foot buildable lots. The short plat created a private access and utility easement across lot one for the benefit of lot two. The entire area of the easement was characterized as impervious surface, which is hard surface that prevents water from entering the soil. Mercer Island's city code limits the maximum impervious surface of a lot to 35 percent of its gross square foot area. With the easement on lot one, there was that much less of an allowance of surface remaining for the building footprint, patios, and driveways, all of which would also count as impervious surface.

¶ 3 Seeking to avoid this limitation, On the Rock, through Anderson Architecture, filed an application to amend the 2009 short plat in early July 2013. The proposal was to alter the existing easement by turning part of it into a separate tract, called Tract X. Tract X would serve as a private roadway to access both lots. Tract X would be jointly owned by the owners of both lots. Under the Mercer Island City Code, Tract X would not count as impervious surface area against either lot. According to On the Rock, an additional 750 square feet of usable impervious surface area would thereby become available for the development of lot one.

¶ 4 A public comment period followed the filing of the application. Daniel Thompson is a neighbor to the property at issue. Thompson submitted written comments in opposition to the proposed short plat.

¶ 5 A Mercer Island city planner approved the preliminary short plat application on February 3, 2014. Thompson appealed the city planner's decision to the Mercer Island Planning Commission. A public open record appeal hearing was held before the planning commission on July 23, 2014. As the only appellant, Thompson was allotted 25 minutes to speak. Misselwitz, who lives just north of the property at issue, attended the appeal hearing as a member of the public. He was allotted 3 minutes to speak. At the end of the hearing, the planning commission voted to uphold the city planner's approval and deny Thompson's appeal. On July 28, 2014, the planning commission issued its written decision.

On August 14, 2014, Thompson and Misselwitz appealed the planning commission's decision by filing a land use petition in superior court as authorized by the Land Use Petition Act, chapter 36.70C RCW. On the Rock and Anderson Architecture, as owner and applicant on the land use decision, were named as additional parties.

¶ 7 The city and On the Rock moved to dismiss the land use petition, arguing that both Thompson and Misselwitz lacked standing to file a land use petition. On November 7, 2014, the trial court granted the motion to dismiss. Thompson and Misselwitz appeal, arguing that they both have standing.

TIMELINESS OF MOTIONS TO DISMISS

¶ 8 On the Rock and the city both filed their motions to dismiss based on lack of standing on October 23, 2014. They noticed hearing for October 31, 2014. Appellants contend the motions to dismiss were untimely.

¶ 9 Appellants argue that, according to a local court rule, motions to dismiss are subject to the scheduling requirements of CR 56, requiring 28 days' notice. The local rule states that deadlines for such motions “shall be as set forth in CR 56 and the Order Setting Case Schedule.” LCR 56(c)(2). Appellants cannot evade the plain language of the local rule, which contemplates that deadlines will be set in the case schedule order.

¶ 10 The case schedule order issued for this case stated that “motions on jurisdictional and procedural issues shall comply with Civil Rule 7 and King County Local Rule 7, except that the minimum notice of hearing requirement shall be 8 days.” Appellants do not persuasively explain why a motion to dismiss for lack of standing should not be characterized as a motion on a jurisdictional or procedural issue.

¶ 11 While neither party has cited case authority exactly on point, we note that the Supreme Court in another context has referred to standing under the Land Use Petition Act as “jurisdictional.” Knight v. City of Yelm, 173 Wash.2d 325, 336, 267 P.3d 973 (2011). The statute itself calls for motions on “jurisdictional and procedural issues” to be noted for resolution at the initial hearing, and it provides that the defense of “lack of standing” also is to be raised by timely motion noted for the initial hearing—in contrast to a hearing “on the merits,” which can occur later. RCW 36.70C.080(2) –(4). We conclude it is most consistent with the statute to interpret the local rule as including a motion to dismiss for lack of standing in the category of a motion on a jurisdictional or procedural issue. Such motions under the case schedule order require only eight days' notice. On the Rock and the city complied with the superior court's case schedule order because they filed their motions to dismiss based on lack of standing exactly eight days before the scheduled hearing.

¶ 12 Because the motions to dismiss complied with the superior court's case schedule order, they were not untimely.

MISSELWITZ LACKED STANDING

¶ 13 The trial court found that Misselwitz lacked standing because he failed to exhaust his administrative remedies. Appellants assign error to this determination. Our review is de novo. See, e.g., City of Burlington v. Washington State Liquor Control Board, 187 Wash.App. 853, 861, 351 P.3d 875 (2015).

¶ 14 A person who claims to be aggrieved or adversely affected by a land use decision has standing to bring a land use petition only if he has exhausted his administrative remedies to the extent required by law. RCW 36.70C.060(2)(d). “The Legislature sensibly confined the category of non-owners eligible to seek judicial review of such decisions to those who participated in the administrative process to the extent allowed. This approach vests greatest discretion in local decisionmakers, and is thus consistent with the Legislature's policy to accord deference to local government and allow only limited judicial interference.” Ward v. Bd. of Skagit County Comm'rs, 86 Wash.App. 266, 271–72, 936 P.2d 42 (1997).

¶ 15 The Mercer Island City Code outlines the administrative approval process for a preliminary short plat application. Upon receiving the application, the city issues a public notice of the application. The notice must include a statement that only people who submit written comments will be parties of record and only parties of record will receive notice of the decision and have the right to appeal. MICC 19.15.020(E)(2)(e). After the public comment period, the city issues its decision. Any party of record may appeal the decision to the Mercer Island Planning Commission by filing a letter of appeal with the city clerk. MICC 19.15.020(J)(1), .010(E). The city issues a public notice of the appeal. MICC 19.15.020(J)(4). An open record appeal hearing is then held before the planning commission, which issues the final administrative decision. MICC 19.15.020(J)(5)(b), .010(E). The planning commission's decision may be appealed “by a party of record with standing to file a land use petition in King County Superior Court.” MICC 19.15.020(J)(5)(g).

¶ 16 Misselwitz did not submit written comments in response to the city's public notice of application. He did not file a letter of appeal to the planning commission. He did, however, attend and speak at the open record appeal hearing that occurred on July 23, 2014, before the planning commission. This participation did not confer standing to appeal the planning commission's decision to superior court because he spoke only as a member of the public, not as an appellant. Because Misselwitz did not use the administrative process to protest the application, he failed to exhaust administrative remedies.

¶ 17 Appellants argue that Misselwitz nevertheless has standing because of the wording of the public notice appeal form sent to him and to other neighboring property owners by the city. The form, “Public Notice of Open Record Appeal Hearing,” states: “Only those persons who submit written comments or testify at the open record hearing will be parties of record; and only parties of record will receive a notice of the decision and have the right to appeal.” Appellants argue that Misselwitz, by virtue of this form, became a party of record and acquired the right to appeal to superior court because he testified at the July 23 open record hearing before the planning commission. The city concedes that the form language is mistaken. Under the city code, one becomes a party of record by submitting written comments on the initial application, and only a party of record has the right to appeal the administrative staff approval to the planning commission. The...