Opinion
No. 53519-6-I
Filed: January 3, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 03-2-36143-7. Judgment or order under review. Date filed: 11/12/2003. Judge signing: Hon. James A. Doerty.
Counsel for Appellant(s), Brian Clifford Armstrong, Lybeck Murphy LLP, 7525 SE 24th St Ste 500, Mercer Island, WA 98040-2334.
Brian Trevor Hodges, Lybeck Murphy LLP, 7525 SE 24th St Ste 500, Mercer Island, WA 98040.
Lory Ray Lybeck, Lybeck Murphy LLP, 7525 SE 24th St Ste 500, Mercer Island, WA 98040-2336.
Counsel for Respondent(s), Stephanie Ellen Croll, Keating Bucklin McCormack Inc PS, 800 5th Ave Ste 4141, Seattle, WA 98104-3175.
Dawn Linette Findlay, Inslee Best Doezie Ryder PS, PO Box C-90016, 777 108th Ave NE Ste 1900, Bellevue, WA 98004-5144.
Cousins Realty appeals the denial of its petition for a writ of mandamus compelling the City of Newcastle to review and approve its site plan application. Because the City properly terminated the application after Cousins repeatedly refused to pay the costs of the review, the City had no duty to act on the application. We therefore affirm.
BACKGROUND
In July 1999, Cousins Realty (Cousins) submitted a site plan application to the City of Newcastle for a proposed commercial development. The application was deemed `complete,' thereby triggering a 120-day review clock under the City's ordinances. The City effectively stopped the clock immediately, however, by asking Cousins to submit additional required information. By the time Cousins provided the missing information, it was in arrears in its payments for the costs of review. The 120-day clock therefore never resumed.
Newcastle Municipal Code (NMC) Section 19.09.050 provides that the City shall issue a notice of final decision on a project permit application within 120 days after notifying the applicant that the application is complete.
NMC 19.09.050(2)(a) (periods excluded from 120-day requirement include `any period during which the applicant has been requested by the City to . . . provide additional required information').
The City requires developers to pay for the staff time and costs of any consultants needed for review of development applications. To that end, the City's consultants prepare `not to exceed' estimates of the cost of the review work. Applicants must deposit funds equal to half of this estimate. The deposit is held in a reserve account until the review is completed. In addition, the City bills the applicant as services are rendered. These billings are not deducted from the deposit but must be paid as invoiced.
Cousins made the required deposit in January 2000. But despite numerous requests, Cousins refused to pay fees invoiced after August. The City repeatedly warned Cousins that its review had been suspended indefinitely for failure to pay, and twice applied part of Cousins' deposit to outstanding fees. The City insisted Cousins replenish the deposit as well as pay all overdue fees. When no payments had been received by October 2001, the City's Director of Community Development, Michael Nicholson, sent this warning:
Per Section 19.09.060(D) of the Newcastle Municipal Code, an applicant must submit requested information within sixty (60) days of receiving a request by the City. If the applicant does not submit the requested information within the sixty-day time period, the application shall lapse. Therefore, the applicant must submit $15,825.99 within 60 days of receiving this letter, or the Newcastle Retail application shall lapse.
Clerk's Papers at 194.
Cousins made no payment before or after the 60-day deadline. On January 9, 2002, the City cancelled Cousins' site plan application for failure to pay the outstanding fees and maintain the appropriate deposit. The City informed Cousins that `the City has cancelled the Newcastle Retail site plan application. . . . If you wish to resume review in the future, you will be required to submit a new, complete site plan application.' Clerk's Papers at 205.
Despite the cancellation, Cousins remained in frequent contact with the City concerning its development plans. In September 2002, Nicholson reminded Cousins that its application had been cancelled and that Cousins must pay contested fees and submit a new application for further review. City Manager Andy Takata reiterated this position in February 2003, and the City's attorney consistently communicated the same to both Cousins and its lawyers in May and August 2003.
Cousins responded by initiating this mandamus action in September 2003. Its petition sought an order requiring the City `to grant the building permit, or, in the alternative, . . . to provide a detailed plan to insure a fair process to obtain the requested building permit, including a clear description of what development issues have been approved, what approvals are still needed, and the approximated costs for each element of the process.' Clerk's Papers at 1-2.
The City opposed the petition on grounds that because Cousins' application had been terminated, `the City has nothing to exercise its discretion upon'; that no statute or ordinance requires the City to grant a permit or to provide a `detailed plan' or otherwise act without a valid application; and that Cousins' ability to submit a new, complete site application constituted an adequate administrative remedy barring mandamus. Clerk's Papers at 153.
The trial court denied the writ, and Cousins appeals.
DISCUSSION
Standard of Review. Three requirements must be met before mandamus will lie. First, the party subject to the writ must be under a clear duty to act. RCW 7.16.160. Second, the party petitioning for the writ must be `beneficially interested.' RCW 7.16.170. And third, the petitioner must have no `plain, speedy and adequate remedy in the ordinary course of law.' Id. Whether there is a duty to act is a threshold determination. Eugster v. City of Spokane, 118 Wn. App. 383, 404, 76 P.3d 741 (2003), review denied, 151 Wn.2d 1027 (2004). We review this question of law de novo. River Park Square, L.L.C. v. Miggins, 143 Wn.2d 68, 76, 17 P.3d 1178 (2001).
Relief Sought. As a preliminary matter, we note that the relief requested in Cousins' petition does not match its arguments on appeal. As noted above, the petition requested that Newcastle be ordered to do one of two things: `grant the building permit' or `provide a detailed plan to insure a fair process to obtain the requested building permit.' Clerk's Papers at 1-2. This type of relief is not available in a writ action. Cousins had not yet applied for a building permit. The court could not have specified how the City was to exercise its authority, and the City has no duty under any statute or ordinance to `provide a detailed plan.' Because the superior court did not elaborate on its decision, we cannot know whether it denied the writ because of this fundamental error, or on some other basis. Cousins seeks different relief on appeal, asking only that we direct the City to review its plan. The City confines itself to answering the argument made on appeal. We therefore proceed to the merits. Duty to Act. Cousins contends the City has no authority to cancel or terminate review of a site plan application for failure to pay fees associated with that review. Cousins points out that under the Newcastle Municipal Code, after declaring an application complete, the City must either deny the application, or approve it (with or without conditions). NMC 18.42.100. The Code requires the City to act within 120 days after it notifies the applicant that its application is complete. NMC 19.09.050(1). Cousins argues these provisions create a mandatory duty to review its application within 120 days, which the City did not do, thus fulfilling the first requirement for mandamus.
See, e.g., Peterson v. Dep't of Ecology, 92 Wn.2d 306, 314, 596 P.2d 285 (1979) (`Though mandamus will lie to direct an officer to exercise the discretion which it is his duty to exercise, mandamus will not lie to compel performance of a discretionary act.').
Cousins asks this court to `direct the trial court to issue a writ of mandamus ordering the City of Newcastle to exercise its non-discretionary, mandatory duty to review the completed site plan application within the 120-day period mandated by the City's code.' App. Br. at 47.
While the Newcastle Municipal Code does not resolve this question as clearly as it might, the City's scheme plainly contemplates that after the initial declaration, the completeness of an application depends upon what additional information is requested and whether the requisite fees are paid. The Code defines a complete application as one that includes the `payment of fees and applicable deposits,' NMC 18.42.040, and provides that an `application shall lapse' if an applicant refuses to provide additional requested information. NMC 19.09.060. It is true, as Cousins points out, that `additional information' is not the same as payment of fees. But the City suggests `information' includes the funds necessary for review thereof. Like insufficient information, insufficient funds make review impossible. It is a reasonable interpretation of the Code, therefore, that information that is not reviewable is information that is not sufficient, and that an application will lapse if information provided is not reviewable because payment is not forthcoming.
The Code empowers the Director of Community Development to interpret and enforce its provisions. NMC 18.50.020. Pursuant to this authority, the Director promulgated and implemented Operating Policy No. 4, which directs the Department of Community Development to instruct applicants to pay outstanding fees within 60 days `or project will lapse.' Resp. Br. Appx. 3.
Cousins contends the Director's `broad powers under NMC 18.50.020 only apply to his enforcement of municipal codes against existing permits.' App. Reply Br. at 14. Cousins' interpretation is too restrictive. The statute actually reads: `The director is authorized to enforce the provisions of this code, any implementing administrative rules, and approval conditions attached to any land use approval, through revocation or modification of permits, or through the enforcement provisions of the city code.' NMC 18.50.020.
Cousins contends we should not consider Operating Policy No. 4, because it was not promulgated under the Administrative Procedure Act rulemaking procedures and because the City failed to argue below that its authority derives from the Policy. But Cousins does not challenge the Policy under the APA, and we decline to invalidate it on this basis sua sponte. As to the City's failure to refer to the Policy below, we are not convinced Cousins clearly presented its argument below, and thus decline to limit the arguments the City may make now in response to Cousins' argument on appeal. Cousins points to portions of its superior court reply brief, but the City would have had no opportunity to respond to that brief, and in any event, the challenge made there to the City's authority related to another issue: the City's handling of Cousins' related request that the City modify the parkway that borders Cousins' property for the benefit of Cousins' proposed development. The parkway issue was considered separately from the site plan application, and is not before us.
The term `lapse' is not defined in the Code. Cousins reads it as merely a temporary interruption. But the term is defined in Black's Law Dictionary as the `termination of a right or privilege because of a failure to exercise it within some time limit or because a contingency has occurred or not occurred.' Black's Law Dictionary 896 (8th ed. 2004). Moreover, a close reading of Operating Policy No. 4 reveals this as the only reasonable meaning of the term as used there. Policy No. 4 authorizes the Department to issue a written notice warning that an applicant's `project has been suspended until receipt of payment.' Resp. Br. Appx. 3 (emphasis added). The notice also states that `the applicant must pay full amount within 60 days or project will lapse.' Id. (emphasis added). The use of both `suspended' and `lapse' indicates the terms have different meanings under the Policy.
The City's course of action in this case is consistent with that interpretation. First, the City sent four letters between July and December 2000 advising Cousins that review had been `suspended indefinitely' for failure to pay. And even though the City informed Cousins its modified application was complete in December 2000, the City simultaneously notified Cousins that all review would be suspended unless Cousins paid the deposit and outstanding invoices within 15 days. Then, in October 2001, the City warned Cousins to pay its outstanding fees and deposit `within 60 days . . . or the Newcastle Retail Application shall lapse.' Clerk's Papers at 194 (emphasis added). When Cousins failed to comply, the City's January 2002 letter informed Cousins `the City has cancelled' the application. Clerk's Papers at 205. Cousins' interpretation gives `suspend' and `lapse' the same meaning, and renders the 60-day time limit meaningless.
Finally, Cousins' reading of the ordinances and policies would impose a duty upon the City to continue reviewing a private developer's application after the developer refuses to pay for the review. This interpretation makes no sense. It defeats the entire purpose of the cost recoupment policy, and has the obviously unfair result that developers who do not comply are subsidized by the citizens of Newcastle, to the significant disadvantage of developers who do comply.
We conclude the ordinances gave the City authority to terminate review of Cousins' site plan application for failure to pay review costs. The City therefore had no duty to act on the application. The superior court properly denied the writ, and we affirm.
Attorney Fees. The City contends it is entitled to attorney fees as the prevailing party on appeal `of a decision by a . . . city . . . to issue, condition, or deny a development permit involving a . . . site plan.' RCW 4.84.370. As the City made no such decision on Cousins' site plan application, but rather terminated its review, we do not believe RCW 4.84.370 applies and deny the City's request for attorney fees.
SCHINDLER, J., and COLEMAN, J., Concur.