Opinion
No. 52497-6-I
March 14, 2005. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-2-03745-3. Judgment or order under review. Date filed: 06/02/2003. Judge signing: Hon. Gain Brian D.
Counsel for Appellant(s), Dawn Linette Findlay, Inslee Best Doezie Ryder PS, PO Box C-90016, 777 108th Ave NE Ste 1900, Bellevue, WA 98004-5144.
Counsel for Respondent(s), Robert D. Johns, Johns Monroe Mitsunaga PLLC, 1500 114th Ave SE Ste 102, Bellevue, WA 98004-6902.
Duana Theresa Kolouskova, Johns Monroe Mitsunga PLLC, 1500 114th Ave SE Ste 102, Bellevue, WA 98004-6902.
Palmer Coking Coal Company sought, in 2001, to modify its permit application for an apartment complex first proposed in 1993. The City of Newcastle decided that Palmer would have to submit a new application in order to be permitted to build the project with proposed modifications. Palmer appealed this decision, and a hearing examiner determined that the modifications were too substantial to be encompassed within the rights to which Palmer was vested by virtue of its completed 1993 application. Palmer then appealed to the superior court under the Land Use Petition Act, and the superior court reversed the hearing examiner's decision. The case comes before this court upon appeal by the City. Palmer defends the superior court's decision on the basis that amended applications for building permits, no matter how substantial the modifications, must be considered under the ordinances that were in effect at the time of the original application. Because this position is unsupported by legal authority, we reinstate the decision of the hearing examiner.
Palmer's project, as originally submitted to King County in a 1993 application for a building permit, was a two building, 36 unit apartment project on a 1.8 acre parcel of land. The building permit application included a site plan. King County deemed the application complete. It is undisputed that the 1993 application was `vested' at that time. The vesting of a building permit application is defined by statute: A valid and fully complete building permit application for a structure, that is permitted under the zoning or other land use control ordinances in effect on the date of the application shall be considered under the building permit ordinance in effect at the time of application, and the zoning or other land use control ordinances in effect on the date of application.
King County's environmental division evaluated the application under the State Environmental Policy Act and issued a mitigated determination of nonsignificance in September 1993. An appeal was taken to the County Zoning and Subdivision Examiner. An examiner denied the appeal, but modified the conditions of mitigation by adding five conditions by an order dated March 2, 1994.
The parcel is located in an area between Renton and Bellevue that became the City of Newcastle through incorporation on August 31, 1994. King County transferred Palmer's application to the City of Newcastle for further processing without having issued a building permit. Palmer and the City began to discuss various changes that might be made to the project. The record contains much correspondence between the parties. The correspondence tends to memorialize what was `agreed to' at various meetings without making clear what was demanded, requested, or merely suggested; or whether the proposed revisions originated with the City or with Palmer.
The parties' present dispute about vesting did not emerge immediately. In February 1999, Palmer wrote to the City saying the company was `in the process of determining the feasibility of moving forward with completing the building permit associated with the project'. The letter noted agreement that certain issues needed to be addressed to ensure that the final approved project `meets the City's current regulations, such as ensuring conformance of the proposed buildings to the 1997 building code.' Palmer anticipated submittal of plans by April 1999, and expressed a desire to break ground in the summer.
Clerk's Papers at 234 (Letter from Palmer to Newcastle Community Planning Director dated February 10, 1999).
Clerk's Papers at 234.
On July 2, 1999, Palmer wrote again to the City, this time explaining that it had been difficult to obtain financing because of unusual risks of the project due to a large amount of excavation and shoring. With financing finally in hand, Palmer wanted to arrange a meeting to discuss general issues `prior to authorizing work to our consulting team.'
Clerk's Papers at 236 (Letter from Palmer to Newcastle Community Planning Director dated July 2, 1999).
On November 10, 1999, the parties met. According to a letter from the City recapping the meeting, it was discussed that Palmer would `submit revised building permit drawings, including a revised site development plan and all applicable fees.' The City stated that the revised drawings would be reviewed under the 1991 King County Ordinance, the King County Order on Appeal of the threshold Determination (March 2, 1994), the original conditions of permit approval related to the King County land use file, and the current Uniform Building Code.
Clerk's Papers at 244 (Letter from Newcastle Associate Planner to Palmer dated December 1, 1999).
On April 28, 2000 the parties met again. At this meeting, Palmer presented a new concept plan. On May 25, 2000, the City wrote a letter responding to the new plan. The City's letter advised Palmer that under the existing application, the City could review only the original 1993 site development and building permit plan, except that the City would permit an increase from 36 to 42 units as `previously agreed'. No further increase in units would be permitted unless Palmer submitted a new application:
Clerk's Papers at 245 (Letter from Newcastle Community Planning Director to Palmer dated May 25, 2000).
As stated in our December 1, 1999 letter, the following items are required before we can proceed with processing of your permit:
1. The Applicant will execute a Release and Indemnification Agreement in the form of the agreement that was enclosed in the December 1, 1999 letter.
2. As agreed in the October 14, 1999 meeting and your letter of April 28, 2000, the applicant will submit revised building permit plans meeting the model building codes currently adopted by the City. (As of this date, the 1997 UBC is the model building code.)
3. Payment of the applicable fees, which are $11,456.00 for a building permit plan check fee.
After extensive in-house discussions with staff and our attorney, we have determined that the City can only review site development and building permit plans based on the approved King County plans dated August 3, 1993, prepared by Anderson, Koch Smith, Architecture Planning. These plans show only 36 units which we previously agreed could be increased to 42. This increase was dependent upon aggregation of the properties and moving some of the parking underground. No increase over 42 units will be permitted by the City unless a new application is submitted, meeting the City of Newcastle codes and ordinances. A SEPA checklist will be required for a new site plan application.
Therefore, the only modifications to the site development and building permit plans which will be allowed by the City are:
(a) updates to the building plans to meet the model building code;
(b) any changes to the plans necessary to meet the conditions of King County Council Ordinance #10191 dated December 9, 1991, the Decision on the Appeal of the Threshold Determination by the King County Hearing Examiner dated March 2, 1994, and the original conditions of permit approval recommended in the King County Land Use File #C9202808 dated July 25, 1997; and
(c) an increase to 42 from 36 units, utilizing the same configuration for structures and units as was approved by King County Council Ordinance No. 10191 and King County Land Use File No. C9202808. This would, as initially indicated by you, be accomplished by adding units to the north end of the easterly structure on the approved site plan, providing for all parking under the structure and completing a lot aggregation.
The Release and Indemnification Agreement and the applicable fees must be submitted prior to the City continuing any work. If a signed Release and Indemnification Agreement and fees are not received by June 19, 2000, the City will commence proceedings to terminate the application.
We hope this letter clarifies the intent of the City's review process. Please feel free to give me a call if you have any questions.
Clerk's Papers at 245-46 (Letter from Newcastle Community Planning Director to Palmer dated May 25, 2000).
This May 25 letter, with its suggestion that a new application might be necessary, set the stage for the present dispute.
On June 13, 2000, the City withdrew its decision to allow the increase from 36 to 42 units:
It is the position of the Community Development Department that recent proposals by you and the applicant constitute significant and material changes to the original plans approved by King County. Further, since specific previous offers by the City with regard to density increases have been rejected in favor of other alternatives that you have presented, those offers by the City are no longer available. As previously mentioned, should you wish to pursue changes to the approved plans, please submit a new application including all supporting documentation.
Clerk's Papers at 247-48 (Letter from Newcastle Community Planning Director to Palmer dated May 25, 2000).
The City reiterated that if Palmer wanted to proceed on the existing application, it should by June 19, 2000 `submit revised building permit plans meeting the model building codes currently adopted by the City', as Palmer had agreed both in `the October 14, 1999 meeting' and in its `letter of April 28, 2000'. The City also stated that because `this has been a topic of discussion since October 14, 1999, adequate time has been provided and no further extensions will be allowed.'
Clerk's Papers at 247.
Clerk's Papers at 247.
Palmer responded that its intent was to submit plans `consistent with its vested application under the King County Code. There has always been agreement between Palmer Coking Coal and Newcastle that the 1997 UBC applies to this project and the plans submitted to Newcastle will be consistent with that code.' Palmer then made the following assertion about the vested status of its modified plans: `We are of the opinion that this project is a vested permit, and that review of it is governed by the applicable King County Code sections. Any changes, modifications and amendments to the underlying permit will be consistent with that code.' Palmer also asserted that cancellation or termination of `the permit' would affect Palmer's due process and statutory vested rights.
Clerk's Papers at 240 (Letter from Palmer to Newcastle Community Planning Director dated June 19, 2000).
Clerk's Papers at 240.
Clerk's Papers at 240.
On June 21 the City wrote asking for clarification:
Is it your intent to submit for review the approved plans from King County, a copy of which we are in receipt of, or do you intend to submit new plans with significant and material changes? Significant and material changes include increased density, different building facades, different construction techniques, changes to drainage calculations and location of drainage facilities, and the aggregation of lots.
Clerk's Papers at 249 (Letter of Newcastle Community Planning Director to Palmer dated June 21, 2000).
The City said that if Palmer was proposing significant and material changes, the city would consider the submission `a new application.' On June 26, 2000, Palmer responded that an architect was preparing to resubmit plans that would be consistent with the 1993 `vested rights that attach to the application.'
Clerk's Papers at 249.
Clerk's Papers at 335 (Letter of Palmer to Newcastle Community Planning Director dated June 26, 2000).
In August 2000, Palmer filed a building permit application amendment with the City, containing a modified project. On November 20, 2000, Palmer's architectural firm submitted yet another set of modified plans for the project (their `ideal' plans). Palmer took the position that both the August and November plan submissions were fully vested as amendments to the original application, but understood `that the City may or may not agree with this position.' In this same letter, Palmer stated that it believed the essential issue here comes down to whether the differences between the 1993 application and the amendments submitted this year should lead the City to conclude that the amendments will result in a project which will substantially increase the environmental impact of the project.
Administrative Hearing Exhibit 2.
Clerk's Papers at 337; Clerk's Papers at 344 (Letter from Palmer to Newcastle Associate Planner dated November 20, 2000).
Clerk's Papers at 347 (Letter of Palmer's attorney to Newcastle's attorney dated November 22, 2000).
After having a consultant review the file, the City did not agree to process either the August or November submissions as amendments to the 1993 application, and on December 28, 2000, informed Palmer that the addition of six units was `a substantial change' from the original plans, and a `substantial change as a matter of prudent policy should not be allowed after County approval of the original plans and their accompanying SEPA review.' The City outlined two options for Palmer: either ask the City to process the original 1993 application, amended to incorporate the 1997 UBC; or ask the City to process the new plans as a new application. On January 5, 2001, Palmer stated that it wanted to process the 1993 application, and at the same time, `through an appropriate appeal procedure', contest the City's refusal to process the August 2000 modifications as an amendment to the 1993 application.
Clerk's Papers at 242 (Letter of Newcastle's attorney to Palmer's attorney dated December 28, 2000).
Clerk's Papers at 252 (Letter from Palmer's attorney to Newcastle's attorney dated January 5, 2001).
On January 18, 2001, the City suggested that an appropriate appeal procedure would be to bring the dispute before the City hearing examiner under the Newcastle Municipal Code. Palmer followed this procedure and filed a notice of appeal with the City Clerk on January 31, 2000. The appeal asked the hearing examiner to determine that the August 2000 plans were a `minor modification' of the 1993 vested plans, and to order the City to process them `without requiring the applicant to submit a new application or lose its vested rights.' Palmer asserted there was `no authority in either the King County Code to which the applicant is vested or the Newcastle Municipal Code' which authorized the City to deem the increase in units from 36 to 42 `as anything other than a minor modification of the 1993 Vested Plans.'
Administrative Record at 149 (Palmer's appeal to the hearing examiner filed January 31, 2001).
Administrative Record at 154 (Palmer's appeal to the hearing examiner filed January 31, 2001).
The hearing examiner identified a narrow issue as the subject of the appeal: must the City's building official accept the August 2000 amendments as minor amendments to the 1993 vested application, or were the changes of such magnitude as to cause Palmer to lose its vested rights if it continued forward with the August 2000 plans instead of the 1993 application? The hearing examiner ruled that the August 2000 site plan was not a minor amendment to the 1993 application.
Palmer appealed to superior court on various grounds, including a claim under the Land Use Petition Act (LUPA) that is the subject of this appeal. LUPA, RCW 36.70C, authorizes a court to grant relief from a land use decision if the petitioner carries its burden by establishing at least one of the following six standards:
(a) The body or officer that made the land use decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless;
(b) The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise;
(c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court;
(d) The land use decision is a clearly erroneous application of the law to the facts;
(e) The land use decision is outside the authority or jurisdiction of the body or officer making the decision; or
(f) The land use decision violates the constitutional rights of the party seeking relief.
Palmer took the position that by virtue of its vested 1993 application for a building permit, the City had not only the authority, but the obligation, `to approve modified plans, as long as they comply with the codes to which the project was vested'.
Clerk's Papers at 365 (Palmer's reply brief from LUPA hearing filed August 13, 2002).
The superior court, although it appears to have rejected this argument, nevertheless reversed the hearing examiner's decision, keying its decision to the City's letter of May 25, 2000. `What I'm saying is that the modifications that were agreed to by the City in May as they may be put forth in the plans in August, they have to process the application.' The court ordered the City to process Palmer's application with the modifications the City agreed to in the May 25, 2000 letter, and review it according to the 1993 `codes and regulations to which the 1993 application vested.'
Clerk's Papers at 428 (Oral ruling of the court).
Clerk's Papers at 430 (Oral ruling of the court).
Clerk's Papers at 436 (Order on land use petition filed January 10, 2003).
The City's appeal from the superior court's decision invokes this court's de novo review. On review of land use decisions, the court of appeals stands in the shoes of the superior court and reviews the hearing examiner's action de novo on the basis of the administrative record. Issues raised under subsection (b) are questions of law, reviewed de novo. Issues raised under subsection (d) are subject to the `clearly erroneous' standard of review. A decision is clearly erroneous when, after reviewing the record as a whole, the reviewing court is left with the `definite and firm conviction that a mistake has been committed.' Schofield v. Spokane County, 96 Wn. App. 581, 586, 980 P.2d 277 (1999). In determining whether a land use decision is clearly erroneous, the reviewing court must be deferential to factual determinations made by the highest forum below that exercised fact-finding authority. Schofield, 96 Wn. App. at 586. In this case, that is the hearing examiner.
The City's appeal to this court asks us to reverse the superior court decision, and reinstate the hearing examiner's decision that Palmer's 1993 vested right did not include the August 2000 modifications. Palmer stands on its position that the City must review and approve Palmer's permit plan modifications `because they are consistent with the codes to which the application vested.'
Respondent's Brief at 17.
Palmer's briefing at times suggests that Palmer's position is grounded in estoppel. For example, in its reply brief to the superior court, Palmer asserts that it `was entirely justified in relying upon the City's 1999 agreement allowing it to modify its plans for the project.' And Palmer argues to this court that the City `led Palmer to believe that the City would and could agree to mutually acceptable modifications, spent several years engaged in those discussions and negotiations, and then, after reaching an agreement on modifications, refused to honor it, claiming the only plans they could review were the original 1993 plans.' But at no point in the proceedings has Palmer cited legal authority on estoppel, or characterized its argument as an estoppel argument. Palmer has not asked us to affirm the superior court decision on the basis that the City induced Palmer's reliance by an assurance that the modifications proposed in 2000 would be processed as part of the 1993 application. So we are constrained to disregard, as rhetorical, Palmer's references to justified reliance. The issue presented by this appeal is different: What is the scope of a vested right based on a completed building permit application?
Clerk's Papers at 365 (Palmer's reply brief for LUPA hearing filed August 13, 2002).
Respondent's Brief at 15.
And the record does not establish that the City ever agreed that modifications to the original plans would be vested along with the original application.
We know that the completed building permit application vests the applicant with the right to build the structure according to the plans submitted if the plans conform to the law in effect when the application was submitted. Does it also as Palmer contends vest the developer with the additional right to build a different structure according to plans submitted later, so long as the structure proposed later also conforms to the various ordinances that were in effect on the date of the original application? Palmer first contends that the Local Project Review statute, RCW Ch. 36.70B, specifically acknowledges that modifications to a vested application do not alter the status of the project as vested. The statute in question provides as follows:
According to Palmer, under the vested rights doctrine, if an applicant submits modifications to an application, `those modifications are reviewed under the laws and regulations to which the application is vested. If the modifications comply, the application should be approved.' Respondent's Brief at 26.
(1) Within twenty-eight days after receiving a project permit application, a local government planning pursuant to RCW 36.70A.040 shall mail or provide in person a written determination to the applicant, stating either:
(a) That the application is complete; or
(b) That the application is incomplete and what is necessary to make the application complete.
To the extent known by the local government, the local government shall identify other agencies of local, state, or federal governments that may have jurisdiction over some aspect of the application.
(2) A project permit application is complete for purposes of this section when it meets the procedural submission requirements of the local government and is sufficient for continued processing even though additional information may be required or project modifications may be undertaken subsequently. The determination of completeness shall not preclude the local government from requesting additional information or studies either at the time of the notice of completeness or subsequently if new information is required or substantial changes in the proposed action occur.
A `project permit application' includes a building permit application. RCW 36.70B.020(4).
RCW 36.70B.070(1), (2).
The City contends this statute is inapplicable because the language about project modifications in subsection (2) was not added until after 1993, the year Palmer's application vested. Palmer responds that because the statute is procedural, it may not be used `as a sword' against Palmer's vested rights. According to Palmer, `The statute recognizes that project modifications can and do occur, and has made it clear that such modifications do not alter the status of the application as complete and vested.'
Respondent's Brief at 28.
Respondent's Brief at 28 (emphasis added).
We are inclined to agree with Palmer that the Local Project Review statute, being procedural, is not a land use control ordinance to which an application vests. Arguably, it can apply to the processing of applications that were filed before the statute became effective. Palmer is probably correct, then, in saying that project modifications will not necessarily alter the status of a project as complete. But Palmer also says that project modifications will not alter the status of a project as vested. This argument adds words not found in the statute. RCW 36.70B is not concerned with vesting. It is concerned with solving `conflict, overlap, and duplication between the various permit and review processes', and making it easier for the public `to know how and when to provide timely comments on land use proposals that require multiple permits and have separate environmental review processes.' RCW 36.70B.010. While the statute permits a local government to deem an application complete for purposes of the notice requirement even though modifications are possible in the future, the statute does not require a local government to accept later modifications as relating back to the original complete and vested application for vesting purposes.
Palmer contends the Supreme Court held that modifications relate back to the date of the original application when it decided Friends of the Law v. King County, 123 Wn.2d 518, 869 P.2d 1056 (1994). At issue in that case was a county decision approving an application for a preliminary plat. The decision was conditioned on the applicant's being able to show that in developing the plat, it would be able to meet all the requirements of the permissive `General' zoning in effect when the completed application was submitted. Friends of the Law, 123 Wn.2d at 520. Appellant Friends of the Law contended, unsuccessfully, that the application had not vested; and that even if it had, the county did not have the authority to approve the application subject to future compliance with applicable zoning laws and ordinances. With respect to this second argument, the court held that the approved preliminary plat did not, on its face, violate the zoning ordinances because the applicant had made a threshold showing of an ability to comply with applicable zoning.
Palmer asks us to be guided by the following discussion of that issue by the Supreme Court:
A preliminary plat application is meant to give local governments and the public an approximate picture of how the final subdivision will look. RCW 58.17.020(4). It is to be expected that modifications will be made during the give and take of the approval process. Once a completed application has been submitted, it is to be judged under the laws in effect at the time of submission. If the applicant can show that its plat, with the proper conditions and modifications, will comply with those laws, it will be approved. If not, it will be rejected and the process may begin again. Hence, we hold that Anstalt's application did vest upon submission. The council did not abuse its discretion in approving Anstalt's preliminary plat application subject to modifications which will bring it into compliance with all applicable zoning requirements.
Friends of the Law, 123 Wn.2d at 528-29.
Unlike the situation in Friends of the Law, the application here is for a building permit, not a preliminary plat. An application for a preliminary plat is subject to its own statutory guidelines that define a preliminary plat as `a neat and approximate drawing of a proposed subdivision showing the general layout consistent with the requirements of this chapter.' RCW 58.17.020(4). The court's observation that `modifications will be made during the give and take of the approval process' was intended to apply to the lengthy review and approval process that follows submission of the approximate layout of the subdivision. That process leads to hearings and eventually approval of a final plat subject to conditions imposed by the local legislative body or its designee. See RCW 58.17.100.
Friends of the Law, 123 Wn.2d at 528.
The process following submittal of a completed (and therefore vested) building permit application is not comparable. As the hearing examiner noted, `Building codes and case authority provide that a building official, when considering a building permit application, must grant the permit if the application meets the specific and non-discretionary requirements of the zoning and building codes.' The `building official shall issue a permit' to the applicant whose application conforms to the requirements of the building code and other pertinent laws and ordinances. UBC sec. 303(a) (1991) (emphasis added) (code in effect at the time Palmer submitted its application).
Clerk's Papers at 24 (Hearing examiner's findings, conclusions, and decision filed February 5, 2002).
Furthermore, even where preliminary plats are concerned, Friends of the Law did not write a blank check to developers to modify the design of a plat at will in the future while still maintaining the original date of the vested right. Rather, the proposal must show at the time of application that the project, with proper modifications and conditions, can be brought into compliance with existing laws. `If not, it will be rejected and the process may begin again.' Friends of the Law, 123 Wn.2d at 529. Palmer contends that a complete building permit application vests the applicant with the right to have not only that application, but all future modifications of it, considered under the law as it existed at the time of the original application. This position not only goes beyond the holding of Friends of the Law, but is also inconsistent with the Supreme Court's articulation of the vesting doctrine in Noble Manor v. Pierce County, 133 Wn.2d 269, 284, 943 P.2d 1378 (1997). In that case, the court first held that a developer who applied for a short plat obtained a vested right not only to divide the land, but also to develop it. But the court also held that the development rights that vest are only for the particular uses disclosed at the time of application, not for all possible uses allowed by the zoning and land use laws in effect on the date of application. Noble Manor, 133 Wn. 2d at 283. Although Noble Manor is concerned with a subdivision application, its holding drew upon, and quoted, a case where as here the application was for a building permit:
In West Main, this Court stated that under the vested rights doctrine, `developers who file a timely and complete building permit application obtain a vested right to have their application processed according to the zoning and building ordinances in effect at the time of the application.' West Main Associates, Inc. v. City of Bellevue, 106 Wn.2d 47, 50-51, 720 P.2d 782 (1986) (emphasis added).
Noble Manor, 133 Wn.2d at 283.
The Legislature codified West Main Associates, Inc. v. City of Bellevue, 106 Wn.2d 47, 50-51, 720 P.2d 782 (1986), in the statute that now defines the vesting of a building permit application:
A valid and fully complete building permit application for a structure, that is permitted under the zoning or other land use control ordinances in effect on the date of the application shall be considered under the building permit ordinance in effect at the time of application, and the zoning or other land use control ordinances in effect on the date of application.
RCW 19.27.095(1). This statute, like West Main, provides that a completed application will be considered under ordinances that were in effect at the time of the application. It does not provide that later modifications will relate back to the original date.
We conclude that neither the statute nor caselaw support Palmer's argument that an application for a building permit will remain vested to the date the original application was filed even if it is modified by different designs and versions over the ensuing years before issuance is sought. The Court went on to say in Noble Manor, `Since we conclude that what is vested is what is sought in the application for a short plat, then the question becomes what the Developer's application sought in this case.' Noble Manor, 133 Wn.2d at 284. Similarly here, the question is what did Palmer seek in its initial complete application in 1993 for a building permit? Palmer presented a specific building design and site plan. This was the design `sought', not the amended designs presented in the year 2000. Allowing modified plans to relate back, no matter how significant the modifications, would encourage `permit speculation', a consequence the Noble Manor court was at pains to prevent. See Noble Manor, 133 Wn.2d at 283.
It does make sense that a local government might choose to allow minor changes to relate back. In this case it appears the City — when presented with a new concept for the project in April 2000 — at first assumed it had the right to accept changes in the application, so long as they were not `significant and material,' without demanding a new application that would have a new vesting date. It also makes sense that a city would define such a policy in writing, to assure fairness in administration. In this vein, Palmer contends the `significant and material' change standard utilized by the hearing examiner was arbitrary and unwritten. According to Palmer, The `policy' announced by the City Planning Director that `significant and material changes' in a permit application would allow the City to terminate review of a vested application and treat it as a new application is not contained in the King County Code, the City of Newcastle Code or any City policy — it is purely a figment of the City Planning Director's imagination.
Respondent's Brief at 7-8.
We will accept for the sake of argument that a city should not be in the business of accepting `minor' changes to building permit applications without some ordinance defining the difference between major and minor. We are unable to see how that proposition leads to reversal of the hearing examiner's decision in this case. The only reason the hearing occurred was because Palmer did not want to have a permit issued based on what was sought in the original application. Palmer wanted to contest the City's refusal to agree that modifications were vested. Palmer presented a variety of arguments and the hearing examiner rejected all of them, including Palmer's argument that the amendments were not significant and material. The fact that the City litigated the very issue that Palmer raised, and persuaded the hearing examiner that the amendments were significant, does not lead to a conclusion that the City was arbitrary in insisting that Palmer file a new application in order to have a modified design considered. Because the City had no obligation to process a building permit application for a modified plan under ordinances that were in effect when the original plan was submitted, its refusal to do so in Palmer's case was not arbitrary.
The positions taken by both parties in this case have not been particularly easy to understand. There is a pervasive sensation of moving targets. A picture emerges of negotiations that moved away from solid ground into the realm of hope that everything would eventually work out. Ultimately, Palmer's effort to make the City responsible for the resulting muddle has not been persuasive. We are unable to conclude that the hearing examiner's decision was erroneous or unlawful.
Reversed.
I would reverse as well, but to remand to the hearing examiner for a determination of whether the August 2000 plans were such a substantial modification of the 1993 plans as to require the application process begin anew. That the 2000 plans were not a `minor' modification does not answer that question, nor does it answer the question posed by the majority: `What is the scope of a vested right based on a completed building permit application?'
See majority opinion at 14.
I believe the answer requires an inquiry into the nature of the building, or more appropriate to the current lexicon, project review process, and how proposed modifications impact the analytical process occasioned by the original application. Only if the modifications are such as to seriously and significantly undermine the premises on which the original approval was based should they be deemed so sufficient, or substantial, as to require the process begin anew thus losing its vested status.
I do not fault the majority for its frustration with the facts of this case. I agree that this has gone on too long and reflects a process gone seriously awry. However, I resist the temptation to let hard facts make bad law and cannot agree that these hard facts justify ignoring what little law we have in this state that reflects on this issue.
The building permit process has become, in most if not all but the most insignificant cases, a project review process much more akin to the plat approval process than not. As such, I believe this court must look to Friends of the Law, and Noble Manor for guidance, and not dismiss them by begging the question as does the majority. Those cases were about the scope of the vesting doctrine and in its decisions on those two cases the Supreme Court recognizes that the approval process for plats involves give and take such that modifications are expected and included in the doctrine, and that the uses sought by a project proposal are the measure by which to analyze proposed changes. I do not see why these cases are not applicable here, nor do I see how the building or project approval process at issue here is so different from the process at issue in those cases.
Friends of the Law v. King County, 123 Wn.2d 518, 869 P.2d 1056 (1994).
Noble Manor v. Pierce County, 133 Wn.2d 269, 284, 943 P.2d 1378 (1997).
What is required in this case, indeed in all similar cases where the scope of modifications is at issue, is a fact specific inquiry into the proposed modifications in relation to the original application. The question should be: Do the proposed modifications substantially undercut the basis for the original approval? This requires more than a numbers game of 36 versus 42 units, or the location of parking entrances and exits. Do the changes impact the original environmental assessment, stream setbacks or the like, and if so, how and how much? We do not have a record that reflects such an inquiry.
The majority says what it cannot know from this record: that the decision to refuse the modifications was not arbitrary. We simply cannot say that here unless we treat, as the majority does, all building permit applications as fixed in stone on the date submitted, something we should not do and something the Legislature directs local authorities and applicants not to do.
See RCW 36.70B.070(2), majority opinion at 15.
If delay is a concern, as it should be, then the application of timelines and deadlines contained in the applicable ordinances and statutes is the answer, an issue that is not before this court.
In sum, in this case and on this record I would reverse and remand to the hearing examiner for a hearing to determine whether the proposed modifications so significantly change the application as to throw into question the basis for the original approval.