Opinion
No. 36756-4-II.
May 5, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-2-06687-7, Frank E. Cuthbertson, J., entered September 7, 2007.
Affirmed by unpublished opinion per Hunt, J., concurred in by Van Deren, C.J., and Armstrong, J.
UNPUBLISHED OPINION
Robert and Sandra Olson appeal the trial court's grant of summary judgment dismissal of their damages action against the City of Tacoma (City) for the City's alleged violation of their property rights in connection with a permit for a temporary driveway approach. The trial court dismissed Olson's action because he had no ownership interest in the City's right of way, on which he had constructed unpermitted structures, and, therefore, he lacked standing to bring a claim against the City under RCW 64.40.020. Olson argues that (1) his City-issued driveway permit created a "property interest" in the City's undeveloped right-of-way, and (2) the trial court erroneously based its summary judgment ruling on facts that are incorrect, disputed, or not supported by the record.
For ease of reference, we refer to the Olsons collectively as "Olson" in the remainder of this opinion.
Olson raises additional arguments in his briefing only in the context of his underlying property rights assignment of error. These additional arguments include contentions that the City's decision to stop his construction in the right-of-way was arbitrary and capricious and that the City impaired his right to access his property.
The City cross-appeals, arguing that the trial court erred in granting only part of the City's motion for summary judgment (on grounds that Olson lacked standing) and in denying the remainder of this motion. The City argues that the trial court should also have granted its motion on the following grounds: (1) Olson had not filed a land use application and, therefore, his superior court action was not based on a land use decision; (2) Olson's superior court action was moot because he had already obtained full relief from the hearing examiner; and (3) the City did not act arbitrarily or capriciously in stopping Olson's unpermitted construction — filling protected wetlands and constructing a permanent brick and sandstone structure in the City's right-of-way.
Holding that Olson lacked standing to sue the City under RCW 64.40.020, we affirm the trial court's dismissal of his action. Accordingly, we do not address Olson's remaining arguments.
FACTS I. Temporary Driveway Approach Permit
On or about April 20, 2005, Robert and Sandra Olson requested a permit from the City of Tacoma to construct a driveway to connect their 1616 S. Crystal Springs Road residence to South 17th Street. Olson's lot, in the Titlow area of Tacoma, contains a several thousand square foot home with an attached garage and a separate detached garage at the southern end of the property. The northern and western boundary lines of Olson's property border residential lots, and the southern boundary line borders an undeveloped forested area. Olson's western property line, the focus of this dispute, borders an undeveloped, City-owned right-of-way, known as the Crystal Springs Road right-of-way (right-of-way).
Olson bought the Crystal Springs property in 1989. Several years later, he built a home and garage, for which he obtained electricity, sewer, and wetland construction permits.
Although Olson's home and garage had driveway access to South 16th Street from the north east corner of his property, Olson wanted to construct an additional driveway from his garage area to South 17th Street. He did not intend, however, to construct a driveway due south across the southern portion of his property to South 17th Street. Instead, Olson planned for his new driveway to extend eastward, from south of the mid-point of his eastern property line, into the unopened segment of Crystal Springs Road, and then southward along this public right-of-way to its "intersection" with South 17th Street. It is undisputed that Olson has no ownership interest in this public right-of-way, which the City owns in fee.
A. Olson's Meetings with City Personnel 1. City Land Use Administrator
One year earlier, Peter Katich, the City's Land Use Administrator, had told Olson that he would need a wetland permit to construct a driveway across his property because a stream bisects Olson's lot and the proposed driveway would impact the stream. Katich explained that although Olson had previously obtained a wetland development permit in 2001, when he was building his home and garage, the 2001 permit did not address or cover the development of an additional driveway, nor did it authorize construction in the City's Crystal Springs Road right-of-way. Katich also noted that Olson had already altered the City's right-of-way by replacing a City culvert (located on Olson's property) and by adding fill materials to his property's wetland area, all without first obtaining the required City permits. Katich told Olson to obtain a wetland/stream development permit to legitimize his ongoing use of the wetland area and right-of-way. But Olson did not request a wetland/stream permit from the City.
A "culvert" is a "sewer or drain running under a road or embankment." Webster's II New College Dictionary 275 (1999).
Katich confirmed this conversation in an August 6, 2005 letter to Olson. In this letter, Katich outlined the steps that Olson needed to take to bring his construction in compliance with the City Code, and he advised Olson that City staff would request a public hearing on the matter.
2. City Inspector
Eight months after his meeting with Katich, Olson sought and received guidance from other City staff about how to obtain a permit for his proposed driveway construction. In 2005, Kris McColeman, the construction inspection supervisor for the City's Public Works Construction Division, met with Olson to advise him about the type of permit necessary to complete the proposed project.
McColeman worked in the City's Construction Division, a department separate from the City's Building and Land Use Services Department (BLUS) where Katich worked. Although BLUS issues wetland permits, the Construction Division does not appear to have such authority.
When McColeman first met with Olson at the proposed driveway site, Olson described his plan to construct a driveway between South 17th Street and his property. During this meeting, Olson told McColeman that he wanted to construct rock walls at the culvert site on both sides of the Crystal Springs roadway and to use pavers to line the roadway. McColeman informed Olson that a "Temporary Driveway Approach" was the appropriate permit for his project. The record contains no information, however, about whether Olson told McColeman about his (Olson's) previous meeting with Katich or whether Olson discussed with McColeman Katich's direction to Olson to obtain a wetland permit.
Using "pavers" refers to a landscaping technique in which developers line a surface area with cut stone or concrete as an alternative to asphalt. See http://www.sustainability.uconn.edu/landscape/07-pavers.html.
B. Permit Request
To obtain the temporary driveway approach permit that McColeman had recommended, Olson went to the permit counter of the City's Building and Land Use Services Division, in the City's Municipal Building. He did not, however, bring any drawings, plans, or application materials to the counter. Instead, he requested a temporary driveway approach permit, identifying his company, Intracommunication Network Systems, Inc., as the project's contractor. Unbeknownst to the City's permit clerk, however, Olson's company's business license had expired, which would have precluded his company's obtaining a permit.
According to Becky Heath, a City "Permit Supervisor," the City generally does not require any drawings or other written proposals for a temporary driveway approach permit.
According to Sharon Jenkins, the City's "Permit Specialist" who issued Olson's temporary driveway approach permit, (1) it is unusual for an individual property owner to apply for such a permit because the City ordinarily issues this type of permit to licensed and bonded construction companies; (2) even though Olson applied for the permit under his company's name (Intracommunication Network Systems, Inc), and that the company was bonded at the time she issued the permit in 2005, the company's license had expired in 2003; and (3) if she had known about the company's expired license at the time Olson requested the permit, she would have denied the request.
According to Olson, he explained to the permit clerk that he wanted to construct a driveway from his home to South 17th Street. Olson then provided his street address as the site location for the project. But the record contains no information about whether Olson told the clerk about his plan to build his proposed driveway in the City's unopened Crystal Springs Road right-of-way.
After Olson paid the $180 permit fee, the City gave him: (1) a two-page temporary driveway approach permit, which included a "project description" and several "conditions of approval"; and (2) a permit fee invoice, which described the improvement as "Driveway-Asphalt Temporary."
Olson's temporary driveway approach permit, which the City characterizes as an "over-the-counter permit," contained scant information about Olson's project description. The "Project Description" section of this permit provided only the following information: "1616 Crystal Springs Rd [-] Temporary Driveway Approach." Similarly, the "Street Improvement" section of this permit simply stated, "Driveway," designating the material type as "A" for asphalt.
Beyond this limited information, the temporary driveway approach permit contained no other details or descriptions about what Olson proposed to construct. First, it included no information about Olson's intent to construct his proposed driveway on the adjacent public right-of-way. Second, aside from the "asphalt" designation for building materials, the permit contained no information about any of the structures, methods, or materials that Olson intended to use as part of his driveway construction. Third, aside from Olson's street address, the "Project Description" section of the permit included no information about what Olson planned to construct or where he planned to construct it.
During oral argument before us, Olson's attorney explained that the City issues temporary driveway approach permits to enable permit holders to make property improvements until such time that the City chooses to install permanent gutters and/or sidewalks in that specific area.
The permit also contained several "Conditions of Approval." On the first page, beneath "Project Description," the permit stated, "This permit shall become null and void if any of the above information is found to be incorrect." Clerk's Papers (CP) at 217. The second page provided:
General:
Permission is HEREBY GIVEN TO DO THE DESCRIBED WORK, AS NOTED ON THE REVERSE SIDE, ACCORDING TO THE CONDITIONS HEREON AND ACCORDING TO THE APPROVED PLANS AND SPECIFICATIONS PERTAINING THERETO, SUBJECT TO COMPLIANCE WITH THE ORDINANCES OF THE CITY OF TACOMA.
CP at 218.
The permit also included the date of issue, April 20, 2005, and the date of expiration, May 20, 2005, one month later. Additionally, the permit's fine print stated that the "[e]xpiration date is 30 days from the issue date unless otherwise noted." CP at 218. At the end, the permit included a grid for potential violations and stated, " Three or more violations constitute[] revocation of this permit." CP at 218 (emphasis added).
C. Driveway Construction
After receiving the temporary driveway approach permit, Olson began constructing his driveway in the City's Crystal Springs Road right-ofway adjacent to his property. Olson characterized this area as an unopened right-of-way, underlain with the City's drainage system and a metal culvert, where "the Cit[y] has yet to build an actual road bed." CP at 158.
Olson claimed that he began construction in the right-of-way "in accordance with his Driveway Permit." But his temporary driveway approach permit contains no information about any construction in the public right-of-way.
Although Olson's permit specified "Driveway — Asphalt Temporary" as the material type, Olson ultimately used a sand base, lined a portion of the driveway with bricks, and added sand as "fill material" to the right-of-way and to the wetland area near the culvert. Although not mentioned in his permit, Olson also built a bridge with sandstone railings "for aesthetic purposes." Photographs of Olson's driveway construction in the City's right-of-way show a brick bridge-like structure with sandstone railings and a brick-lined bridge surface.
During construction, McColeman visited Olson's property and told him that the project complied with the use authorized in the permit and was consistent with what Olson had described during their meeting. According to McColeman, Olson's use of rock and railings (for the bridgelike structure) constituted "landscape enhancements," which are a "non regulated item that the city does not issue a permit for." Olson's permit, however, included no information about his plan to build a driveway across a public right-of-way.
D. City's Suspension of Driveway Construction 1. Verbal notice of suspension and stop work order
An associate engineer at the City's Engineering Division of the Public Works Division, Jennifer Shui, received survey data from City staff showing that Olson had constructed his rock walls, panels, concrete, fencing, and most of the culvert in the City's right-of-way. After the City received several complaints from neighbors about Olson's driveway construction, McColeman returned to the property to investigate. The City's Building and Land Use Services Division asked McColeman to tell Olson to stop construction because Olson needed to augment his existing wetland permit, which did not cover the work that he had proposed for the wetland area and the City's right-of-way. Although McColeman believed that Olson's project remained consistent with his (McColeman's) understanding of the permitted driveway construction, on May 13, 2005, McColeman advised Olson that the City had ordered him to suspend construction. But after receiving this advice, Olson continued his construction in the City's right-of-way. 2. Written Notice of Violation and Nuisance Code Inspection Report
On May 18, City Code Enforcement Supervisor Dan McConaughy conducted a site inspection and prepared a Nuisance Code Inspection Report, identifying Olson's specific nuisance violations under Chapter 8.30 of the Tacoma Municipal Code ("TMC"). On May 20, McConaughy sent a "Notice of Violation" to Olson, ordering him to submit a proposed schedule for correcting the nuisance violations.
That same day, Olson's neighbors (who had complained about his driveway construction) met with City officials to discuss their concerns. The neighbors informed the City that, after receiving the May 13 stop work order, Olson had continued to build in the City's unopened Crystal Springs right-of-way. On May 27, the City barricaded the right-of-way "to prevent further damage and adverse impacts associated with illegal construction activity by [Olson]." CP at 230.
On May 31, Olson's attorney sent a "Request for Administrative Review of Penalty for Alleged Violation" to the City of Tacoma Building Official. On June 2, Olson received notification by letter that his attorney had failed to file for administrative review within 10 calendar days of receiving the notice of violations, which was grounds for dismissal.
Also on June 2, McConaughy conducted a second site inspection and prepared an updated Nuisance Code Inspection Report, identifying Olson's violations of TMC Chapter 8.30. On June 3, McConaughy sent Olson a second Notice of Violation and Nuisance Code Inspection Report, assessing a civil penalty of $125 against Olson for failing to submit a proposed schedule for correcting violations as specified in the May 20 Notice of Violation.
This second Notice of Violation and Nuisance Code Inspection Report, signed by McConaughy, provided a checklist for nuisance violations. For the "Generally Defined" nuisances, McConaughy had checked six sections, which included: (1) erection and maintenance of unsecured structures in the right-of-way; (2) un-permitted development; (3) noise; (4) adverse impacts of public right-of-way through illegal filling, grading, and paving; (5) construction materials improperly placed in right-of-way; and (6) erection and maintenance of improper structures. For the "Specifically Defined" nuisances, McConaughy had similarly checked six sections, which included: (1) improper excavation of natural holes, (2) improper accumulation of debris, (3) noise, (4) failing structures, (5) deteriorating structures, and (6) unfinished structures.
II. Procedure A. Administrative Review
On June 7, Olson's attorney submitted a "Request for Reconsideration of Appeal of Alleged Violation — Nuisance" to the City Building Official. Administrative Review granted reconsideration. While review was pending, the City imposed additional fines against Olson for $250 and $1000. On June 24, Olson received a letter, notifying him that administrative review had affirmed the City's Notice of Violation and the fines assessed for his un-permitted work in the right-of-way.
In January 2006, Olson appeared before the City Hearing Examiner to seek further review of his nuisance violations. During the hearing, McColeman testified that when he visited Olson's driveway construction site, he (McColeman) had determined that the project complied with Olson's temporary driveway approach permit. Olson testified that when he requested the driveway permit, (1) he had told the City he wanted to construct a driveway between South 17th Street and his house; (2) he had not described the driveway as "concrete" because he originally wanted to construct an asphalt driveway; and (3) after he had flanked the driveway with "guardrails," he decided to use brick pavers to make the area more "authentic looking." At the conclusion of the hearing, the Hearing Examiner stayed his ruling for 30 days to enable the parties to pursue possible settlement.
In his August 30, 2006 Declaration, Olson stated that he had described to City staff the work he wanted to undertake. But the record indicates that the City staff had no knowledge about Olson's specific plans to construct in and to add fill to the wetlands and to build on the City's right of way.
On February 24, the City notified the Hearing Examiner of its intent to withdraw its May 20, 2005 Notice of Violation against Olson and to dismiss his nuisance violation. On March 7, the Hearing Examiner dismissed Olson's "matter" "as a result of [the City's] withdrawal" of the nuisance violations for which Olson had sought review. In dismissing the matter, the Hearing Examiner concluded that the City's withdrawal of the nuisance violation it had issued against Olson rendered further review moot.
B. Notice of Need for Wetland and Street Occupancy Permits
On March 9, the City sent a letter to Olson's attorney, instructing Olson to obtain a "wetland permit" (under TMC 13.11) and a "street occupancy permit" (under TMC 9.08) in order to maintain his previously unpermitted structures within the City's right-of-way. In this letter, the City also advised Olson that if he was unsuccessful in his application process for a wetland permit, the City would seek its own wetland permit to remove Olson's construction and bridge structure from the right-of-way. Olson failed to apply for any of these permits.
C. Superior Court
On April 5, instead of applying for the required wetland and occupancy permits, Olson filed a Complaint for Monetary Damages under Chapter 64.40 RCW in Pierce County Superior Court. He alleged two causes of action: (1) the City's decision to pursue nuisance violations against him and its failure to recognize his temporary driveway approach permit were arbitrary and capricious, in violation of RCW 64.40.020; and (2) the City's arbitrary action deprived him of his property rights in violation of his due process rights under the Washington State Constitution, Art. 1 § 3. Olson also requested reasonable expenses, losses and costs, and he asked the trial court to impose punitive damages against the City.
1. City's motion for summary judgment
On May 10, the City moved for summary judgment, asking the superior court to dismiss both of Olson's claims. The City asserted four theories: (1) Olson lacked standing under RCW 60.40.020 because he did not own or have any claims to the City's right-of-way; (2) Olson lacked standing because the City did not issue the temporary driveway approach permit as part of a land use decision under Chapter 13 TMC; (3) Olson's claim was moot because he had already obtained the relief sought in his complaint when the City withdrew its Notice of Violation; and (4) the City's ordering Olson to stop construction was not arbitrary or capricious because Olson's construction was damaging a protected wetland area and he had failed to obtain the proper wetland permit to conduct this work.
2. Olson's motion for preliminary injunction
In an August 4 Public Notice, the City proposed the following course of action for Olson's structures and wetland fill:
Proposed is the removal of fill material and structures placed in the City of Tacoma Crystal Springs right-of-way which is part of a wetland/stream buffer. Fill over a 212 square foot area adjacent to a wetland will be removed. The City of Tacoma is proposing to restore the functions of the wetland and wetland/stream buffer to meet the requirements of Tacoma Municipal Code (TMC) 13.11 Critical Areas Ordinance. A sanitary sewer line is located in the western portion of the right-of-way. A five foot wide pervious pedestrian path is proposed to be constructed over the sewer line to allow local access between South 16th Street and South 17th Street.
CP at 45.
On August 30, Olson filed a Motion for Preliminary Injunction to restrain the City from removing his driveway construction. Olson also moved for an order prohibiting the City from converting the construction area into a pedestrian path. Referring to the City's public notice, Olson stated that the purpose of his requested injunction was "to prevent the [C]ity's intended destruction," of his "lawfully erected driveway improvements."
City Land Use Administrator Katich filed an affidavit in opposition to Olson's Motion for a Preliminary Injunction. On November 9, the trial court granted Olson's motion for a preliminary injunction, prohibiting the City from removing materials from Olson's construction site or constructing its own developments in the right-of-way.
3. Summary judgment
On July 27, 2007, the trial court orally granted summary judgment for the City, dismissing Olson's claims, based on its determination that Olson lacked standing to seek damages under RCW 64.40.020 because he had no real property interest in fee in the City's right-of-way. On September 7, the trial court issued its summary judgment order, incorporating by reference its July 27 oral ruling. The superior court also set a trial date for Olson's remaining claim of arbitrary and capricious conduct.
Although the trial court granted summary judgment in the City's favor on the standing issue, it refused to grant summary judgment on the City's remaining contentions that: (1) Olson's claims were moot because he had received full relief from the hearing examiner; (2) Olson had not filed a land use application and, therefore, his superior court action was not based on a land use decision; and (3) no outstanding issues of material fact precluded summary judgment on Olson's claim that the City's action was arbitrary and capricious.
Although the trial court's written order determined that "all of Plaintiffs Olsons' claims against the defendant City of Tacoma, . . . are hereby dismissed, in their entirety and with prejudice," its oral ruling stated that a material fact remained on Olsons' claim of arbitrary and capricious conduct.
4. Stay Pending Appeal
On September 17, Olson moved to stay the trial date pending his appeal of the trial court's summary judgment ruling. The trial court granted this motion and stayed the proceedings.
D. Appeal
Olson appeals the trial court's grant of summary judgment dismissal of his claims for damages under RCW 64.40.020. The City cross-appeals the trial court's failure to grant summary judgment on additional grounds, but it also acknowledges that if we affirm the trial court's dismissal based on Olson's lack of standing, we need not consider its cross appeal.
A commissioner of our court granted Olson's request for review, determining that the trial court's summary judgment order was appealable as a matter of right.
ANALYSIS
Olson argues that the trial court erred in granting summary judgment when genuine issues of material fact were in dispute about whether he had a property interest in the City's right-of-way by virtue of his City-issued temporary driveway approach permit. We disagree.
I. Standard of Review
In reviewing an order for summary judgment, we apply the same standard as the trial court. Parrott Mech., Inc. v. Rude, 118 Wn. App. 859, 864, 78 P.3d 1026 (2003). We review an order for summary judgment de novo, viewing all evidence in the light most favorable to the nonmoving party. Port of Seattle v. Lexington Ins. Co., 111 Wn. App. 901, 906, 48 P.3d 334 (2002). Summary judgment is proper when the evidence shows that there is no genuine issue of material fact and the moving party is entitled to the judgment as a matter of law. Malang v. Dep't of Labor Indus., 139 Wn. App. 677, 683-84, 162 P.3d 450 (2007). We can affirm the trial court's judgment on any theory that the record and legal authorities support even if the trial court did not consider it. Heidgerken v. Dep't of Natural Res., 99 Wn. App. 380, 388, 993 P.2d 934 (2000).
The moving party bears the initial burden to show the absence of any issue of material fact. Rude, 118 Wn. App. at 864. Uncontroverted, relevant facts offered in support of summary judgment are deemed established. Id. The trial court's findings of fact are appropriate on summary judgment where reasonable minds could reach but a single conclusion. Id. Such is the case here.
II. Olson's Lack of Standing
The trial court ruled that Olson lacked standing to bring a claim under RCW 64.40.020 because he had no ownership interest in the City's right-of-way. Thus, the dispositive fact is Olson's lack of a valid "property interest" in City's Crystal Springs Road right-of-way, in which he constructed his new driveway and other structures. The related dispositive legal issue is whether Olson had standing to bring his action in superior court. The trial court is correct: Olson lacked standing.
A. No "Property Interest"
Olson argues that the trial court erred in basing its summary judgment dismissal of his action against the City on an incorrect definition of "property interest." He contends that the City's temporary driveway approach permit gave him a "property interest" in the City's right-of-way. The City counters that Olson has no standing to bring this claim because the City owns the right-of-way in fee and it never authorized Olson to build on it.
Olson purportedly filed his superior court action under RCW 64.40.020, which provides:
Owners of a property interest who have filed an application for a permit have an action for damages to obtain relief from acts of an agency which are arbitrary, capricious, unlawful, or exceed lawful authority, or relief from a failure to act within time limits established by law: PROVIDED, That the action is unlawful or in excess of lawful authority only if the final decision of the agency was made with knowledge of its unlawfulness or that it was in excess of lawful authority, or it should reasonably have been known to have been unlawful or in excess of lawful authority.
RCW 64.40.020 (emphasis added). RCW 64.40.020 limits the holders of this statutory cause of action for damages to "owners of a property interest who have filed an application for a permit." Although RCW 64.40.010(3) defines "property interest" as "any interest or right in real property in the state," Olson does not meet the criteria for bringing an action under RCW 64.40.020 because, as the trial court ruled, he owns no interest in the property for which he claims a permit.
The City asserts that Olson has no property interest in the right-of-way because it (the City) owns this land in fee. Olson argues, however, that RCW 64.40 requires mere "ownership of a property interest," not outright ownership of the property itself. He relies on Mission Springs, Inc. v. City of Spokane, to argue that he has a constitutionally cognizable property interest in the City-issued temporary driveway approach permit, which he contends gives him standing to sue the City under RCW 64.40.020. 134 Wn.2d 947, 962, 954 P.2d 250 (1998). We disagree.
In Mission Springs, the Washington State Supreme Court held that a developer had a cognizable property right in a City-issued grading permit to grade his own land, where his application satisfied statutory and ordinance criteria, because "the right to use and enjoy land is a property right." Id. Although the court also noted that "property in a thing consists not merely in its ownership and possession, but in the unrestricted right of use, enjoyment and disposal," Mission Springs provides no support for Olson's argument here. Unlike Mission Springs, in which the city arbitrarily and capriciously delayed issuing a grading permit for the developer's private property, Olson's City-issued temporary driveway access permit did not authorize him to build anything on the City's right-of-way; nor did the permit give Olson a "property right" in the use or enjoyment of the publicly-owned right-of-way, which is mentioned nowhere in his permit.
Mission Springs, 134 Wn.2d at 963 ( quoting Spann v. City of Dallas, 111 Tex. 350, 355, 235 S.W. 513 (1921).
Furthermore, unlike the developer/property owner in Mission Springs, Olson did not show that he had complied with all applicable ordinance and statutory criteria to fill the wetland. On the contrary, although City officials repeatedly advised Olson to obtain the proper wetland permits and to cease construction until the City authorized it, Olson failed to obtain these permits or to comply with the City's temporary stop order on his construction. And unlike the City in Mission Springs, the City here was not refusing to issue Olson a permit, it simply required that he take the prerequisite steps to qualify for the permit.
Moreover, under the category "project description," Olson's permit contained only his street address, "1616 S Crystal Springs Rd." The permit did not mention either Olson's intent or the City's permission for him to build a driveway in the unopened portion of the City's Crystal Springs right-of-way. Similarly, nothing in the permit even hinted that Olson intended to build his driveway anywhere other than on his own property at "1616 S Crystal Springs Rd."
Nevertheless, Olson attempts to expand Mission Springs' acknowledgment of a developer's cognizable property right in a permit to grade his own property to create a new type of "property interest" beyond that contemplated in Mission Springs: Olson contends that his City-issued permit to build a temporary driveway approach on his own property somehow confers a "property right" to extend his private driveway on adjacent public land, which the City neither authorized nor mentioned on the face of his temporary driveway approach permit. Mission Springs does not support Olson's proposition. Notably, the issue in Mission Springs was not whether the developer's permit conferred a "property right" but, rather, whether the City of Spokane was required to issue a permit to a developer as a matter of right where the developer had already met all statutory and ordinance criteria for a permit to grade his own property.
Furthermore, such an unauthorized gifting of public property to a private citizen, without compensation to the public, would violate Const. art. 8, § 7 of our State Constitution.
In contrast, Olson does not argue that the City of Tacoma similarly failed to issue a permit. Instead, he argues a very different proposition — that the permit the City issued for a "Temporary Driveway Approach" at "1616 Crystal Springs Rd" authorized construction of his private driveway on the City's public right-of-way. But Olson's temporary driveway approach permit neither authorized construction in the City's right-ofway nor approved any building structures or materials other than an asphalt driveway. We hold, therefore, that Olson has no cognizable "property interest" in the public right-of-way under any set of facts; nor did the City's issuance of a temporary driveway approach permit create such a private property interest.
We note that Olson's briefing stresses his reliance on McColeman's advice that his (Olson's) permit allowed for his construction. But this advice neither authorized Olson to build in the City's right-of-way and wetland area without applying for additional permits nor absolved him of his legal obligation to comply with the City code. See Taylor v. Stevens County, 111 Wn.2d 159, 168, 759 P.2d 447 (1988) ("The duty to ensure compliance [with the building code] rests with individual permit applicants, builders and developers."); see also Noble Manor Co. v. Pierce County, 81 Wn. App. 141, 147, 913 P.2d 417 (1996) (applicant bears burden of complying fully with applicable land use requirements); Mull v. City of Bellevue, 64 Wn. App. 245, 255, 823 P.2d 1152 (1992) (discussing the policy consideration underlying Taylor).
Furthermore, Katich had previously advised Olson that his proposed driveway construction required a wetland/stream development permit under the City's Critical Areas Preservation Ordinance. But Olson ignored Katich's instruction, disregarded the land use requirements under Chapter 13 TMC, and proceeded to fill and to construct his driveway in a wetland area without applying for the correct permits or seeking approval from City officials in the Building and Land Use Services Division. See TMC 10.14.030.C. ("No plan shall be approved nor permit issued where it appears that the proposed work, or any part thereof, conflicts with the provisions of this chapter or any other ordinance requirements . . . concerning a plan.")
B. No Standing Under RCW 64.40.020
The City cites Westway Constr., Inc. and Billy Phelps v. Benton County to support the trial court's ruling that Olson lacked standing to sue the City under RCW 64.40.020 because he had no real property interest in the City's right-of-way. 136 Wn. App. 859, 866, 151 P.3d 1005 (2006). We find this decision instructive and apply it here. In Westway, Division Three of our court held that Phelps, the property owner, lacked standing to sue the county under RCW 64.40.020 because he had failed to apply for a permit and Westway, his contractor, who did have a permit, had no "property interest" in Phelps' land. Westway, 136 Wn. App. at 866. We agree with the City that under Westway, Olson lacks standing to sue under RCW 64.40.020 because he does not own the City's right-of-way, and his temporary driveway approach permit does not confer any private development or property rights in the City's property. See Br. of Resp. at 18.
We hold that, having no cognizable "property interest" in building his private driveway on the public right-of-way, Olson lacks standing to bring an action against the City under RCW 64.40.020. Accordingly, we affirm the trial court's summary judgment dismissal of his action.
Because our holding that Olson lacked standing to sue the City is dispositive, we do not reach the City's arguments on cross-appeal, nor need we address Olson's other arguments.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and VAN DEREN, C.J., concur.