WCHS, INC. v. City of Lynnwood

• Decision Date: 01 March 2004
• Docket Number: No. 52405-4-I.,52405-4-I.
• Citation: 86 P.3d 1169,120 Wash. App. 668
• Parties: WCHS, INC., a California corporation, John Doe, an individual, and Jane Doe, an individual, Respondents, v. CITY OF LYNNWOOD, a Washington municipal corporation, Appellant, City of Lynnwood Mayor Mike, McKinnon, an Individual; City Council Member Don Gouch, an individual; City Council Member Ted Hikel, an individual; City Council Member Martin Nelson, an individual; City Council Member Ruth Ross, an individual; City Council Member Loren Simmonds, an individual; City Council Member Jim Smith, an individual; City Council Member Lisa Utter, an individual, Defendants.
• Court: Washington Court of Appeals

86 P.3d 1169

120 Wash. App. 668

WCHS, INC., a California corporation, John Doe, an individual, and Jane Doe, an individual, Respondents, v. CITY OF LYNNWOOD, a Washington municipal corporation, Appellant, City of Lynnwood Mayor Mike, McKinnon, an Individual; City Council Member Don Gouch, an individual; City Council Member Ted Hikel, an individual; City Council Member Martin Nelson, an individual; City Council Member Ruth Ross, an individual; City Council Member Loren Simmonds, an individual; City Council Member Jim Smith, an individual; City Council Member Lisa Utter, an individual, Defendants.

No. 52405-4-I.

Court of Appeals of Washington, Division 1.

March 1, 2004.

Publication Ordered March 26, 2004.

Greg Alan Rubstello, Seattle, WA, for Appellant.

John E. Keegan, Traci Lyn Shallbetter, Davis Wright Tremaine LLP, Seattle, WA, for Respondents.

GROSSE, J.

Proponents of projects are entitled to have their proposals processed under the regulations in effect at the time a complete building permit application is filed, regardless of subsequent changes in the zoning or other land use regulations. WCHS's application for a building permit was complete at the time of filing in early November 2002. The decision of the trial court that this allowed WCHS to proceed with its project is affirmed.

FACTS

WCHS cares for persons with chemical dependencies by providing opiate substitution treatment services. The State recognizes these treatment centers as "essential public facilities."¹ In early June 2002, WCHS submitted an application to the Department of Social and Health Services Division of Alcohol and Substance Abuse (DASA) for certification of such a center in Snohomish County. In response DASA initiated a process to determine if there was a public need. This process included public hearings. DASA concluded that Snohomish County needed at least three of these facilities.

At that point, WCHS began a search for a site. It located space in the Alderwood Professional Building, a building located across from Alderwood Mall, where medical uses were already permitted outright under the Lynnwood Municipal Code (LMC). Lynnwood's planning manager was contacted regarding the proposed use in this building. The manager informed WCHS's agent that the proposed center was a medical use and thus a permitted use under the applicable zoning regulations. Relying on this representation, WCHS entered into a lease agreement with building representatives.

On November 8, 2002, WCHS submitted a building permit application to the City. WCHS needed to remodel to meet the requirements for state certification. The application contained all of the information required under RCW 19.27.095 (Building permit application-Consideration-Requirements) and LMC 16.04.070-.071 (Containing § 106.3 UBC amended-Contents of building permit and fully complete building permit application defined).²

On November 7, 2002, the City prepared notice of an emergency city council meeting for November 8, 2002, less than 24 hours before the call of the meeting. The notice does not give a time when it was issued or how it was disseminated to the public.

A proposed ordinance³ providing interim zoning and land use regulations related to opiate substitution treatment providers was presented at the meeting. The ordinance treats such clinics differently than other medical facilities and precludes the siting of such a center within 250 feet of residential property, public parks, child care facilities, youth organizations, and public or private schools, colleges or universities. There is no dispute that the ordinance prevents WCHS from locating the treatment center in the Alderwood Professional Building. The Council passed the ordinance on November 12, 2002. There is also no dispute that, if the WCHS building permit application was complete when it was filed on November 8, 2002, the emergency ordinance does not apply to it. If, however, the new ordinance is applicable, it precludes use of the Alderwood Professional Building for the proposed use.

On November 19, 2002, WCHS applied for a business license authorizing the operation of the treatment program in the city. The requirements for a business license are set forth in the municipal code, LMC 5.04. The code confers no discretion on the City with respect to approval or issuance. Nevertheless, the city attorney determined that the business license should be denied under the requirements of RCW 35A.82.020⁴ and RCW 35A.96A.410 [sic].⁵

Initial approval of the building permit was stamped on the plans at least as early as November 25, 2002.⁶ But on December 4, 2002, the city attorney advised City departments to treat WCHS' application as incomplete and refuse to process it further. The City claimed that the application could not be considered complete until after WCHS received DASA certification. Additionally, the city attorney suggested that the City assert that a business license is of a higher priority than a building permit under LMC 2.76. Thus, as the business license could not be issued until after certification, then the building permit cannot be issued either, as least until the business license first issued.⁷

On December 5, 2002, the City sent a letter to WCHS stating that the application for a business license was denied because RCW 35A.82.020 prohibited the City from licensing any business activity that has not first complied with the laws of the State (certification).⁸ Despite being told that WCHS was in compliance, the City would not change its stand and stopped processing the application. However, the letter fails to give notice to the applicant of its right to a hearing as is mandated by LMC 5.25.100.

Because the City claimed the application was incomplete and halted process on the application for the building permit, WCHS determined that the City was not going to render a final appealable decision and therefore filed a Summons and a Complaint for Declaratory Judgment, Writ of Mandamus and Award of Damages. (CP 528-557). WCHS moved for partial summary judgment seeking declaratory judgments that its building permit application was complete on November 8, 2002, that WCHS had a vested right to have its building permit application processed under the laws in effect on November 8, 2002, and that by writ of mandamus the City must process the building permit. WCHS also sought the court's determination that possession of a business license by WCHS is not a requirement of having a completed building permit application, and that certification of WCHS by DASA is not a requirement for application completion or issuance of a business license. Further, WCHS sought by writ of mandamus that the City issue a business license to it.

On May 5, 2003, over strenuous argument by the City, the trial court held that WCHS's certification by DASA is not a prerequisite for obtaining a local business license or a building permit. The court also held that the building permit to make tenant improvements was complete and suitable for processing at the time of filing on November 8, 2002. The court found the City inappropriately treated WCHS's building permit application as incomplete so the City could make the proposed use subject to ordinance adopted on November 12, 2002. Further, the trial court determined that the City did not have the authority to decide whether DSHS adopted regulations in accordance with State law. By writ of mandamus, the trial court ordered the City to process the applications for the building permit and the business license and render final decisions thereon in accordance with the court's holdings by May 23, 2003.

DECISION

Washington's doctrine of vested rights entitles proponents of projects, usually developers, to have their proposals processed under the regulations in effect at the time a complete building permit application is filed, regardless of subsequent changes in the zoning or other land use regulations.⁹ A review of the record shows that WCHS's application for a building permit was complete when filed. The criteria for a complete building permit application are set forth in State and local law and WCHS fully complied. The application contained all of the information required under RCW 19.27.095¹⁰ and LMC 16.04.070-.071.¹¹ As a matter of law, the criteria must be plainly stated and can leave no room for arbitrary and discretionary interpretation.¹²

The City contends that paragraph 7 § 106.3.1 of the Uniform Building Code, incorporated into LMC 16.04.071, allows the City to require state certification as an element of a complete application. But nowhere in the state or local criteria of a complete building permit application does it list DSHS/DASA certification of the treatment facility as a prerequisite. The City makes an absurd argument that WCHS has to obtain state certification before applying for a building permit. To give this argument weight the City would also have to argue the same for the owner/operators of other state-certified businesses such as daycare facilities, hospitals, pharmacies or beauty salons. In fact, as indicated in the record, DSHS cannot certify an opiate substitution treatment facility until it has seen the completed facility. To the extent that state law authorizes a building official to require other data and information, as a matter of due process such information must be reasonably set forth in the local ordinance governing the requirements for a complete application to avoid being unduly vague.¹³ Vesting procedures that are vague and discretionary cannot be used to deny an applicant vested rights.¹⁴ The actual requirements for a fully complete application cannot be vague and discretionary.

The purpose of the building code is to ensure that applicable standards and requirements are met in the construction of buildings or improvements. The purpose of a "complete application" requirement is to allow the local jurisdiction to determine what the developer has applied...