Verjee-Van v. Pierce County

Decision Date27 February 2018
Docket Number49329-2-II,48947-3-II
CourtWashington Court of Appeals
PartiesTAZMINA VERJEE-VAN and BRIAN VAN, Appellants, v. PIERCE COUNTY, acting through its Department of Planning and Land Services and Office of the Pierce County Hearing Examiner, Respondents.

UNPUBLISHED OPINION

BJORGEN, C.J.

Tazmina Verjee-Van and Brian Van (the Vans) appeal the superior court's denial of their petition under the Land Use Petition Act (LUPA), chapter 36.70A RCW. In their petition the Vans challenge conditions imposed by Pierce County on a shoreline permit exemption issued for the Vans' pier. The Vans argue that: (1) the hearing examiner erred by determining that the legality of a neighboring pier owned by Neil Borgert was not reviewable under the doctrine of finality and (2) the conditions imposed on their shoreline permit exemption amount to an unconstitutional taking. In addition to the County, Borgert and Dan and Phyllis Abercrombie, adjacent property owners on either side of the Vans, are respondents arguing in favor of the County's exemption conditions. Pierce County, Borgert, and Dan and Phyllis Abercrombie also request attorney fees and costs on appeal.

We affirm the superior court and we award reasonable attorney fees and costs to Pierce County, Borgert, and the Abercrombies.

FACTS
A Borgert Pier

The Vans own property on the shoreline of Lake Tapps, which is next to a lot previously owned by Kelly Winne and Julie Helmka-Winne (the Winnes) and which is presently owned by Neil Borgert. At some point before or during April 1998, the Winnes constructed a pier on their property without acquiring a shoreline exemption from Pierce County or submitting an application for a permit. On April 18, 1998, Helmka-Winne submitted a shoreline exemption request for the pier as constructed. On April 20, Helmka-Winne submitted an application for a building permit for the pier, and on July 9, the County issued a building permit to the Winnes for the pier as built. The County also approved the Winnes' shoreline exemption request on June 13, 2001. The building permit and shoreline exemption were never appealed. In December 2003, Borgert purchased the property from the Winnes.

B. First Hearing Examiner Ruling AA7-14

On May 23, 2014, the Vans submitted an application to the Pierce County Planning and Land Services Department (County) for an exemption from the requirement for a shoreline substantial development permit to construct a 30 foot long by 5 foot wide pier and access ramp on Lake Tapps. On September 5, the County denied the request, stating that the Vans' proposed pier "was closer than ten feet from a side property line extended at a right angle to the shoreline, " and therefore was "not exempt from the [permit] requirement. . . per Pierce County Code (PCC) . . . [c]hapter 20.56 Piers and Docks." Clerk's Papers (CP) at 382. On September 18, the Vans appealed the County's denial of their requested exemption to the County's hearing examiner (Examiner) under number AA7-14.

On March 18, 2015, the Examiner held a hearing and took testimony regarding the denial of the Vans' requested exemption. The Vans argued that the County's method of measuring an extended property line by "continu[ing] the [subject] property line to the bulkhead and then waterward from the bulkhead at an angle of 90 degrees, " was inappropriate as applied to their property because it was located on a cove, or curved shoreline, as opposed to a straight shoreline. CP at 255, 257. On April 7, the Examiner ruled that the County's method of determining side property lines conflicted with state precedent and granted the Vans' appeal with regard to the side property line dispute. The Examiner also concluded that "insufficient evidence was presented to determine whether the pier satisfies all the criteria for an exemption as set forth in the SMA [Shoreline Management Act], WAC [Washington Administrative Code], SMP [Shoreline Master Program], and SUR [Shoreline Management Use Regulations]. Therefore no decision is made thereon." CP at 264. No party appealed this decision.

C. Second Hearing Examiner Ruling AA9-15

On April 17, 2015, Mike Erkkinen, senior planner for the County, e-mailed the Vans stating that "insufficient evidence has been presented in this matter for staff to determine if the proposed pier meets provisions in the [SMP] and [SUR], " and asked the Vans to provide "an updated site plan." CP at 369. On May 1, the Vans' attorney sent a letter to the county prosecutor's office replying:

Given that the hearing examiner ruled that the County's decision was clearly erroneous, no other conditions exist that the Vans need to meet to satisfy the exemption requirements, and no other property owner has been required to do what Mr. Erkkinen seeks to require of the Vans. As such, the Vans will not be submitting any additional material for their pier as all of the material requested was previously provided in their pier application that was originally submitted to PALS.

CP at 368.

On May 3, the County received a report that a pier was being constructed on the Vans' property. On May 11, the County conducted a site visit of the Vans' property and found that a pier resembling the Vans' proposed pier had been constructed on the property. This pier, however, was 34 feet long rather than the proposed 30 feet. On June 30, the County granted the Vans a conditional exemption from the SMA substantial development permit requirement, subject to the following requirements:

1. The pier length shall be shortened from the proposed 30 feet to a length that provides a minimum separation of 20 feet from the piers associated with the adjacent waterfront properties.
2. All portions of the recently constructed pier that are less than 20 feet from an adjacent pier or that are more than 30 feet in length shall be removed no later than 30 days from the date of this Exemption.

CP at 250. At the time of the site visit, the Vans' pier was 9 feet 3 inches from the Borgert pier. On July 13, the Vans appealed the County's conditional exemption to the Examiner. This administrative appeal was identified as AA9-15.

On November 18, 2015, the Examiner held a hearing and took testimony regarding the denial of the Vans' conditional exemption. At the hearing, Erkkinen testified that "a 20-foot separation [between piers] is necessary to provide ingress and egress for both property owners." CP at 211. On December 14, the Examiner issued a decision upholding the two conditions in the County's conditional shoreline exemption.

First, the Examiner rejected the Vans' argument that because the Borgert pier was illegally constructed, they were not required to maintain the 20-foot separation from it. The Examiner's basis for this ruling was expressed in finding 14, which states:

14. Appellants cannot now challenge the legality of the [pier] located on the Borgert parcel. Following passage of the Land Use Petition Act (LUPA) by the Washington State Legislature, our Washington [State] Supreme Court has required appeals of land use actions to comply with the time limits set forth in LUPA. The court has consistently held that legal challenges to land use action must be brought within the LUPA statute of limitations of 21 days (except in shoreline cases appeals to the Shorelines Hearings Board must be brought within 30 days). In Department of Ecology v. City of Spokane Valley, et. al., 167 Wn.App. 952 (2012), our Court of Appeals held that the granting or denial of an exemption from the substantial development permit process may be challenged under LUPA as the Department of Ecology did in that case. Since no challenges to the Borgert Dock were filed during the LUPA appeal period of 21 days, our courts and LUPA consider the exemption approval a final land use decision. In Chelan County v. Nykreim, 146 Wn.2d 904 (2002), our Supreme Court quoted from its decision in Wenatchee Sportsman Assn. v. Chelan County, 141 Wn.2d 175 (2002), as follows:
This court has also recognized a strong public policy supporting administrative finality in land use decisions. In fact, this court has stated that "[i]f there were not finality [in land use decisions], no owner of land would ever be safe in proceeding in development of his property. To make an exception . . . would defeat the purpose and policy of the law in making a definite time limit, (pp. 931, 932).

Such is especially true in the present case where Mr. Borgert purchased his parcel with the dock permitted and built (except for SEPA review). The Court in Nykreim continued:

To allow Respondents to challenge a land use decision beyond the statutory period of 21 days is inconsistent with the Legislature's declared purpose of enacting LUPA. Leaving land use decisions open to reconsideration long after the decisions are finalized places property owners in a precarious position and undermines the Legislature's intent to provide expedited appeal procedures in a consistent, predictable and timely manner, (p. 933).

The Supreme Court then extended LUPA's scope and review to include ministerial decisions such as building permits that require no notice whatsoever:

Building permits are subject to judicial review under LUPA. Historically, actions on building permits have been characterized by this court as ministerial determinations which answers the question whether LUPA applies to ministerial land use decisions. 136 Wn.2d at 929.
See also Durland v. San Juan County, 182 Wn.2d 55 (2014), wherein the court prohibited a challenge to San Juan County's issuance of a building permit for a garage addition. In that case petitioners did not receive notice of the building permit until subsequent to the expiration of the administrative appeals period. Furthermore, decisions
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