Tienne v. Pierce County

• Decision Date: 08 September 2010
• Docket Number: No. 38321-7-II.,38321-7-II.
• Citation: 157 Wash.App. 693,238 P.3d 539
• Parties: Louise LAUER and Darrell de Tienne, Respondents, v. PIERCE COUNTY; Mike and Shima Garrison and Betty Garrison, Appellants.
• Court: Washington Court of Appeals

157 Wash.App. 693

238 P.3d 539

Louise LAUER and Darrell de Tienne, Respondents,

v.PIERCE COUNTY; Mike and Shima Garrison and Betty Garrison, Appellants.

No. 38321-7-II.

Court of Appeals of Washington,Division 2.

Sept. 8, 2010.

Gregory Austin Jacoby, Jennifer Anne Irvine Forbes, McGavick Graves PS, Tacoma, WA, for Appellants.

Margaret Yvonne Archer, Attorney at Law, Christine D. Sanders, Gordon Thomas Honeywell LLP, Jill Guernsey, Pierce County Prosecutor's Office, Tacoma, WA, for Respondents.

VAN DEREN, J.

¶ 1 A Pierce County hearing examiner granted Mike and Shima Garrison's application for a fish and wildlife variance, enabling them to proceed with construction of their house within a stream buffer zone on their property. Neighbors, Louise Lauer and Darrell de Tienne (Lauer), filed a petition under the Land Use Petition Act (LUPA) ¹ in superior court, which reversed the hearing examiner's decision. The Garrisons ask us to reverse the superior court's decision and remand for reinstatement of the hearing examiner's decision, ² asserting that the LUPA petition was untimely and that their rights had vested in 2004 when their application was completed, filed with Pierce County (County), and a permit was issued. We hold that the Garrisons' 2004 building application was complete as a matter of law under RCW 36.70B.070(4)(a), vesting their rights under the laws and regulations in effect in 2004. Thus, the hearing examiner did not err, and we affirm the hearing examiner's decision.

FACTS

¶ 2 In December 2002, the Garrisons purchased waterfront property on Henderson Bay in Gig Harbor, Washington. The property contained an open drainage course. In 2003, the Garrisons cleared trees and vegetation from the property until neighbors complained and Pierce County issued a stop work order because the clearing activity was near the drainage course. With the County's supervision and approval, the Garrisons took steps to revegetate the area with native plants.

¶ 3 In March 2004, the Garrisons submitted a building permit application to the County, which granted the permit. The Garrisons began constructing a new residence on the property, but the County issued a stop work order in October 2004 when neighbors complained that the foundation poured for the new house encroached in a stream buffer. The stop work order included a corrective action notice directing the Garrisons to apply for a fish and wildlife variance within 60 days.

¶ 4 The Garrisons appealed the stop work order to a hearing examiner, who denied the administrative appeal on February 4, 2005, and the Garrison's subsequent request for reconsideration on March 18, 2005. The Garrisons filed a LUPA appeal, which settled and resulted in the Garrisons pursuing the fish and wildlife variance presently at issue.

¶ 5 On August 9, 2007, the Garrisons filed an application for a fish and wildlife variance. At the October 24, 2007, variance application hearing, witnesses included Mike Garrison, Louise Lauer, and Darrell de Tienne.

¶ 6 On December 13, 2007, the hearing examiner approved the Garrisons' variance, applying the regulations in effect when the Garrisons filed their building permit application in 2004. On December 21, Lauer filed for reconsideration. On March 4, 2008, the hearing examiner denied Lauer's reconsideration motion.

¶ 7 On March 27, 2008, Lauer filed a LUPA petition in the superior court, seeking review of the hearing examiner's determination. The Garrisons filed a motion to dismiss and strike Lauer's claims, which the superior court denied. The superior court reversed the hearing examiner, holding that the Garrisons' 2004 building permit application was incomplete and did not vest development rights, and remanded to the hearing examiner for consideration of the variance application applying regulations in force in 2007. The Garrisons unsuccessfully moved for reconsideration based on Futurewise v. W. Wash. Growth Mgmt. Hearings Bd., 164 Wash.2d 242, 189 P.3d 161 (2008), which our Supreme Court decided only days before the superior court heard the LUPA appeal.

¶ 8 The Garrisons filed a notice of appeal seeking review of three superior court orders: the order denying the Garrisons' motion to dismiss, the order reversing the hearing examiner's decision in the LUPA appeal, and the order denying the Garrisons' motion for reconsideration. While the appeal was pending, and after briefing had been submitted, we decided Mellish v. Frog Mountain Pet Care, 154 Wash.App. 395, 225 P.3d 439 (2010). ³

ANALYSIS

I. Standard of review

¶ 9 LUPA governs judicial review of Washington land use decisions. HJS Dev., Inc. v. Pierce County, 148 Wash.2d 451, 467, 61 P.3d 1141 (2003). We review the factual record before the hearing examiner, as the hearing examiner is the local jurisdiction's body or officer for this case with the highest level of authority to make a land use determination. See Pierce County Code (PCC) 1.22.080(A), (B)(1)(i), (s). “All land use decisions of the Examiner ... shall constitute the final decision of the Council and shall be appealable to a court of competent jurisdiction.” PCC 1.22.140(C); see also former RCW 36.70C.020(1) (1995); Pinecrest Homeowners Ass'n v. Glen A. Cloninger & Assocs., 151 Wash.2d 279, 288, 87 P.3d 1176 (2004); HJS Dev., Inc., 148 Wash.2d at 468, 61 P.3d 1141; J.L. Storedahl & Sons, 125 Wash.App. at 6, 103 P.3d 802.

¶ 10 Lauer, as the LUPA petitioner, continues to carry the burden of establishing that the hearing examiner erred under at least one of LUPA's six standards of review. See Pinecrest Homeowners Ass'n., 151 Wash.2d at 288, 87 P.3d 1176. These standards are:

(a) The body or officer that made the land use decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless;

(b) The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise;

(c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court;

(d) The land use decision is a clearly erroneous application of the law to the facts;

(e) The land use decision is outside the authority or jurisdiction of the body or officer making the decision; or

(f) The land use decision violates the constitutional rights of the party seeking relief.

Former RCW 36.70C.130(1) (1995). We review questions of law de novo to determine whether the facts and law supported the land use decision. HJS Dev., 148 Wash.2d at 468, 61 P.3d 1141. On review of a superior court's land use decision, we stand in the shoes of the superior court and review the administrative decision on the record before the administrative tribunal-not the superior court record-reviewing the record and the questions of law de novo to determine whether the facts and law support the land use decision. Satsop Valley Homeowners Ass'n, Inc. v. Nw. Rock, Inc., 126 Wash.App. 536, 541, 108 P.3d 1247 (2005).

II. Threshold matters

¶ 11 At the outset, the Garrisons argue two threshold matters and contend that either is dispositive. First, they assert that the Supreme Court's recent Futurewise decision renders Lauer's LUPA petition moot and, therefore, the superior court should have dismissed the petition. Second, they argue that under this court's recent Mellish decision, Lauer's LUPA petition is untimely and dismissal is required. Neither of these arguments is persuasive under the facts of this case.

A. Futurewise

¶ 12 The Garrisons rely on the lead opinion in Futurewise, which determined that “[c]ritical areas within the jurisdiction of the [Shoreline Management Act (SMA) ] ⁴ are governed only by the SMA.” Futurewise, 164 Wash.2d at 245, 189 P.3d 161. The Garrisons argue that, since only the SMA governs their shoreline property, the variance requirement under the County's critical areas ordinance, which was adopted under the Growth Management Act (GMA), ⁵ is inapplicable. See e.g., PCC 18E.10.010. The Garrisons argue that under Futurewise, no GMA buffer requirements apply, no variance is required, and the issue of whether their rights vested in 2004 or 2007 is of no moment.

¶ 13 But the Garrisons' reliance on Futurewise is misplaced. Only four justices signed the lead opinion, with a fifth justice concurring in the result only without issuing an opinion. Such a plurality opinion has “ ‘limited precedential value and is not binding.’ ” Kailin v. Clallam County, 152 Wash.App. 974, 985, 220 P.3d 222 (2009) (quoting In re Pers. Restraint of Isadore, 151 Wash.2d 294, 302, 88 P.3d 390 (2004)). There being “ ‘no majority agreement as to the rationale for a decision, the holding of the court is the position taken by those concurring on the narrowest grounds.’ ”

Kailin, 152 Wash.App. at 985-86, 220 P.3d 222 (internal quotation marks omitted) (quoting W.R. Grace & Co. v. Dep't of Revenue, 137 Wash.2d 580, 593, 973 P.2d 1011 (1999)). Accordingly, we glean no precedential rule from Futurewise, other than that it reversed the trial court and reinstated the Western Washington Growth Management Hearings Board's decision. See 164 Wash.2d at 248, 189 P.3d 161.

¶ 14 Moreover, apparently in response to Futurewise, the legislature passed Engrossed House Bill, Laws of 2010, chapter 107, effective March 18, 2010, which addressed the 2003 legislation that our Supreme Court interpreted in Futurewise, for the express purpose of “clarifying the integration of shoreline management act policies with the growth management act.” Laws of 2010, ch. 107 pmbl. In a new section, the legislature “affirms that development regulations adopted under the growth management act to protect critical areas apply within shorelines of the state as provided in section 2 of this act.” Laws of 2010, ch. 107, § 1(2). The act states that its provisions are to take effect immediately, that its purpose is “remedial and curative,” and that it...