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Washington Court Continues To Vest Rights on Application For Building Permit

Lauer v. Pierce County, 157 Wash. App. 693, 238 P3d 539 (2010) involved a county hearings examiner grant of a fish and wildlife variance to allow for the construction of a home in a stream buffer zone.  A neighbor challenged the decision successfully in the trial court.  The applicants appealed, contending that their rights vested in 2004 when they first filed a completed building permit application.

The applicant purchased the subject site in 2002.  The site contained a drainage course that the applicants cleared until the county issued a stop-work order and required revegetation.  In 2004, the applicants began construction of a house but were stopped by the county once again and required to apply for the subject variance.  They challenged the initial county order, but failed, and then pursued the variance application in 2007.  The variance was approved and then challenged by their neighbors, the plaintiffs in this action, successfully. 

The appellate court said that petitioner had the burden of demonstrating that the hearings examiner erred, not only at the trial court level, but also at the appellate level, because the appellate court stands in the shoes of the trial court in this de novoreview.  Thus, the appellate court reviews the decision of the local government, rather than that of the trial court.  That court refused to follow a Washington Supreme Court opinion which may have compelled a different result because it arose out of a plurality opinion and a concurrence in the result, for which the court determined there was no precedental value, and also noted that the Washington Legislature had passed legislation that came to a different result than that in the case plaintiff relied upon. 

The court found that the petition filed by the neighbors was filed more than 100 days after the local order, in that plaintiffs had asked for reconsideration, which the court found did not toll the 21 day statutory appeal period and also found there was no “equitable tolling” remedy in this administrative law case in any event.  However, because the applicants failed to raise that (apparently jurisdictional) issue below, they could not raise it for the first time on appeal.  Washington statutory law requires that all timeliness issues be raised at a certain point in the trial court proceedings or they are waived, as they were in this case.

The Appellate Court determined that the applicants had submitted a complete building permit application, rejecting plaintiffs’ contention that the same was incomplete because it contained “misrepresentations” so that the more stringent requirements of local law adopted in 2007 would apply to the variance.  The appellate court found that the hearings examiner correctly applied the variance standards in effect when the complete building permit application was first submitted, rather than after the 2007 amendments.  That court also found that there was no misrepresentation over the nature of the drainage course in connection with the building permit application.

 Washington case law establishes the filing of a complete building permit application as the date on which a right to administer a permit rests.  See West Main Associates v. City of Bellevue, 106 Wash. 2d 47, 50-51, 720 P2d 782 (1986) and RCW 36.70B.070(4)(a) and 19.27.095.  In this case, the city was obligated to provide notice if the application were incomplete or the same would be deemed complete under Washington law.  Not only did the county not provide the notice; it also issued the building permit pursuant to the application.  Under these circumstances, the hearings examiner was correct in finding that the applicant had a vested right and that subsequently adopted regulations did not apply to this permit. 

Washington opts for a clear delineation of vested rights, based on the submission of a complete building permit application.  In this case, that system worked well for the landowner.

           Lauer v. Pierce County, 157 Wash. App. 693, 238 P3d 539 (2010).

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