Opinion
No. 23066-0-III
Filed: May 26, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Franklin County. Docket No: 04-2-50184-1. Judgment or order under review. Date filed: 05/03/2004. Judge signing: Hon. Vic L Vanderschoor.
Counsel for Appellant(s), Ryan Michael Swinburnson, Law Offices of Ryan M Swinburnson, 415 N Morain St Ste 3, Kennewick, WA 99336-2667.
Counsel for Respondent(s), Dustin S Bauer, Walla Walla Co PAO, 240 W Alder St Ste 201, Walla Walla, WA 99362-2807.
Counsel for Other Parties, Tom Scribner, Attorney at Law, 249 W Alder, PO Box 1757, Walla Walla, WA 99362-0348.
Majerus, Inc., petitioned the superior court for judicial review under the Land Use Petition Act (LUPA), chapter 36.70C RCW. The court dismissed Majerus, Inc.'s petition because it was not filed timely. We affirm.
On February 26, 2003, Majerus, Inc., submitted a preliminary plat application to Walla Walla County for subdivision and site plan approval of the Triple Creek Meadows Planned Unit Development (PUD). On January 21, 2004, the Walla Walla Planning Commission issued its recommendation for approval of the PUD, subject to certain conditions, to the Board of County Commissioners (Board). On February 18, the Board held a closed record public hearing and issued its decision denying Majerus, Inc.'s application without prejudice in Resolution No. 04045. Mr. Majerus was present at the hearing.
On February 19, 2004, Majerus, Inc.'s attorney asked for a copy of the Board's decision from Walla Walla County Community Director, Scott Revell, who responded to the request by stating that '[w]e will mail the notice of the Board's decision as soon as it is ready which should be within one day.' Clerk's Papers (CP) at 72. On February 23, Mr. Revell notified Majerus, Inc.'s attorney that '[t]he decision is being mailed today. We'll also fax a copy to you this afternoon for your convenience.' CP at 73. On February 24, Stephen Donovan, Assistant Planner for Walla Walla County Department of Community Development (Department), faxed a copy of the Notice of Decision and the Board's decision to Majerus, Inc.'s attorney, who contacted the Department to determine when the appeal period began. On March 9, Mr. Donovan responded:
On February 18, 2004, the County Commissioners made a decision to deny the preliminary plat application. This department distributed a Notice of Decision and copy of the Resolution No. 04045 on February 23, 2004. As I recall some of the notices of decision may have been mailed a day or two earlier, for purposes of establishing the appeal deadline all notices were mailed by February 23, 2004.
CP at 74.
On March 12, 2004, Majerus, Inc., filed a LUPA petition in the superior court challenging the Board's decision. On March 15, Majerus, Inc., served the petition on the Walla Walla County Auditor. On April 26, Walla Walla County moved to dismiss the petition because it was not timely filed under LUPA. On May 3, the court granted the motion, determining Majerus, Inc., had not timely sought review under LUPA and the court thus lacked jurisdiction. This appeal follows.
Majerus, Inc., contends the trial court erred by dismissing its LUPA action. LUPA provides that '[a] land use petition is barred, and the court may not grant review, unless the petition is timely filed with the court and timely served.' RCW 36.70C.040(2). A petition is timely if it is filed and served on all parties within 21 days of the issuance of the land use decision. RCW 36.70C.040(3). To calculate the 21-day time period to file a land use petition, the period will commence:
(a) Three days after a written decision is mailed by the local jurisdiction or, if not mailed, the date on which the local jurisdiction provides notice that a written decision is publicly available;
(b) If the land use decision is made by ordinance or resolution by a legislative body sitting in a quasi-judicial capacity, the date the body passes the ordinance or resolution; or
(c) If neither (a) nor (b) of this subsection applies, the date the decision is entered into the public record.
In Hale v. Island County, 88 Wn. App. 764, 766, 946 P.2d 1192 (1997), landowners filed a land use petition seeking to reverse a Board of Commissioner's preliminary approval of a boat building company's application to rezone a rural residential parcel to a non-residential floating zone. The boat company asserted the landowners had failed to timely file their LUPA petition. Id. at 768. In finding the landowners had timely filed, the court rejected the boat building company's argument the county's decision was made by ordinance or resolution. Id. at 768-69. The court noted the preliminary use approval was a written decision not an ordinance resolution, and the petition was timely filed under RCW 36.70C.040(4)(a). Id. at 769.
Here, the Board's decision was expressly called a resolution. Therefore, the 21-day time period to file a LUPA petition began to run on February 18, 2004 — the date the resolution was passed by the Board. Majerus, Inc.'s petition was filed more than 21 days after the Board's denial of its application and was untimely.
But Majerus, Inc., nonetheless contends the court erred by failing to apply equitable estoppel principles upon dismissing the LUPA petition. Majerus, Inc., argues equitable estoppel principles apply because, in filing its LUPA petition, it detrimentally relied on the Department's statement that 'for purposes of establishing the appeal deadline all notices were mailed by February 23, 2004.' CP at 74.
Equitable estoppel applies when there has been an admission, statement, or act that has been justifiably relied on by another. Dep't of Ecology v. Campbell Gwinn, L.L.C., 146 Wn.2d 1, 19, 43 P.3d 4 (2002). The elements of equitable estoppel are (1) a party's admission, statement, or act inconsistent with its later claim; (2) action by another in reliance on the first party's act, statement or admission; and (3) injury to the relying party if the first is permitted to contradict or repudiate the prior act, statement, or admission. Kramarevcky v. Dep't of Social Health Servs., 122 Wn.2d 738, 743, 863 P.2d 535 (1993).
Equitable estoppel against the government is not favored. Id. Accordingly, a party seeking to assert equitable estoppel against it must show, as well, a necessity to prevent a manifest injustice and no impairment of the exercise of government functions. Id.
To establish equitable estoppel against the government, there must be proof by clear, cogent, and convincing evidence of an admission, act, or statement that is inconsistent with a later claim, another party's reasonable reliance on the admission, act, or statement, and injury to the other party that would result if the first party is permitted to repudiate or contradict the earlier admission, act, or statement.
Campbell v. Dep't of Social Health Servs., 150 Wn.2d 881, 902, 83 P.3d 999 (2004).
To meet the first element of equitable estoppel, Majerus, Inc., must show the Department made a statement inconsistent with its later claim. When the Department stated that for purposes of establishing the appeal deadline, all notices of the Board's decision were mailed by February 23, 2004, the Department acted inconsistently with its current position that the appeal period began to run on February 18.
But if the Department's earlier act was ultra vires, it was not an act for purposes of equitable estoppel. But an act is ultra vires only when it is done either without authority or in violation of existing statutes. Dykstra v. Skagit County, 97 Wn. App. 670, 677, 985 P.2d 424 (1999), review denied, 140 Wn.2d 1016 (2000). Under RCW 36.70B.130, a local government shall give notice of a land use decision to the applicant, along with the procedures for administrative appeal. The entity responsible for distributing that notice was the county's Department of Community Development. Nothing indicates the Department acted outside its power and committed an ultra vires act. The first element of equitable estoppel is met.
Majerus, Inc., must next show it acted in reasonable reliance on the Department's statement. The county argues it was unreasonable for Majerus, Inc., to rely on the statements of an assistant planner because the Department is not in sole charge of handling the county's land use matters and only the Board has ultimate authority to issue final decisions. The county argues Majerus, Inc., should have contacted the Walla Walla County Prosecuting Attorney's Office to determine the applicable statute of limitations for the LUPA petition. The Department's statement, however, was not made outside its authority. The second element of equitable estoppel is met.
Majerus, Inc., must further show it would suffer injury if the county were allowed to repudiate or contradict the Department's earlier statement. To prove an injury for equitable estoppel purposes, a party must establish it justifiably relied to its detriment on the words or conduct of another. Kramarevcky, 122 Wn.2d at 747. 'In Washington, injury, prejudice and detrimental reliance have been used interchangeably to express the requirement that a party asserting equitable estoppel must show a detrimental change of position.' Id. Relying on the Department's statement the appeal timeline commenced on February 23, 2004, Majerus, Inc., filed what it thought was a timely LUPA petition. If the petition were untimely filed, Majerus, Inc., could not appeal the land use decision to the superior court.
Although the injury requirement thus seems to be met, Majerus, Inc., has nevertheless failed to show a detrimental change of position. Indeed, it never changed its position from intending to file a petition for judicial review under LUPA. Moreover, the Board denied the application without prejudice. Majerus, Inc., has made no argument it is forever precluded from seeking approval of the PUD. In these circumstances, the injury requirement is not met.
Because Majerus, Inc., has failed to show injury, we need not address the additional requirements for asserting equitable estoppel against the government. Equitable estoppel does not apply. The petition was untimely filed.
The county has requested an award of attorney fees on appeal. RAP 18.1(b) requires a party to devote a section of its brief to the request for fees. This requires more than a simple request for attorney fees on appeal. Wilson Court Ltd. P'ship v. Tony Maroni's, Inc., 134 Wn.2d 692, 710 n. 4, 952 P.2d 590 (1998). Because the county did not comply with RAP 18.1(b), its request for fees is denied.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY and BROWN, JJ., concur.