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Pine Forest Owners Association v. Okanogan County

The Court of Appeals of Washington, Division Three
Nov 16, 2004
124 Wn. App. 1016 (Wash. Ct. App. 2004)

Opinion

No. 22661-1-III

Filed: November 16, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of Douglas County. Docket No: 03-2-00171-3. Judgment or order under review. Date filed: 12/16/2003. Judge signing: Hon. John Hotchkiss.

Counsel for Appellant(s), Richard B. Price, Attorney at Law, PO Box 1687, Omak, WA 98841-1687.

Counsel for Defendant(s), Heidi Elizabeth Appel, Okanogan County Prosecutors Ofc, 237 4th Ave N, PO Box 1130, Okanogan, WA 98840.

Counsel for Respondent/Cross-Appellant, J. Patrick Aylward, Jeffers Danielson Sonn Aylward PS, 2600 Chester Kimm Rd, PO Box 1688, Wenatchee, WA 98807-1688.

Tracey J. March, Karro March, PO Box 67, 102 S Glover St, Twisp, WA 98856-0067.


Harry Burkholder appeals the superior court's decision that his planned unit development (PUD) application did not vest to the regulations in effect at the time of its filing because it was a rezone application. Mr. Burkholder contends his PUD application vested statutorily; he submitted a subdivision application, not a rezone application; and the extreme vagueness and ambiguity of the Okanogan County Code (OCC) compels vesting of his application. Pine Forest Owners Association (Pine Forest) cross-appeals, contending the PUD application was not sufficiently complete to vest and Mr. Burkholder waived his vested rights in any event by requesting that his application be placed on administrative hold. Pine Forest also contends the trial court erred in applying the arbitrary and capricious standard of review to determine whether the PUD application vested. We affirm.

On November 25, 1986, Mr. Burkholder purchased 80 acres of agricultural land located immediately south and east of the Pine Forest Subdivision in Okanogan County. On October 27, 1992, he submitted a PUD application to the Okanogan County Office of Planning and Development (Planning Office). The application included a permit application, a State Environmental Policy Act (SEPA) checklist, and a brief outline of the proposed development with an attached site plan and two vicinity maps. The proposed development, Hummingbird Heaven Hideaway, included eight lodges of five individual units, a common recreation room in each lodge, and a centralized recreation facility containing one swimming pool and four tennis courts. On October 30, 1992, the Planning Office notified Mr. Burkholder that his application, maps, fees and other supplementary materials were sufficient to vest the application under the requirements of the Okanogan County Zoning Ordinance 79-8 and the Interim Amendments to the Okanogan County Zoning Ordinance 79-8.

On November 4, 1992, the Planning Office distributed notice of the PUD application to various public agencies and adjacent landowners for their comments. Notice of the application was also published in both the county and local newspaper. On December 23, 1992, the Planning Office sent Mr. Burkholder copies of the comments it had received concerning the proposed PUD. The Planning Office stated that the complex nature of the development proposal required a meeting between Mr. Burkholder and the various commenting agencies and county departments. On February 24, 1993, Mr. Burkholder requested that the Planning Office place his application on a temporary administrative hold because of water availability issues. On December 9, 1993, the Planning Office confirmed that his application was still on hold as the water issue had not been resolved.

Between 1994 and 2002, Mr. Burkholder continued to work on various issues affecting his application. In July 2002, the issue of vesting on Mr. Burkholder's application was deemed unclear by Planning Director Don Skillingstad, who determined legal counsel was needed to clarify it. On January 13, 2003, he met with the Okanogan County Board of County Commissioners to discuss the opinions of the Okanogan County Chief Civil Deputy Prosecutor and special outside legal counsel and to gather the Board's input prior to making a vesting decision. On January 22, 2003, Mr. Skillingstad notified Mr. Burkholder that his PUD application remained vested, but that it would no longer be considered on hold.

On February 11, 2003, Pine Forest appealed the Planning Office's decision that Mr. Burkholder's application remained vested. The Okanogan Board of Adjustment denied Pine Forest's administrative appeal and decided Mr. Burkholder's application remained vested. On May 29, 2003, Pine Forest appealed the Board's decision to the Okanogan County Superior Court. The court determined Mr. Burkholder's PUD application could not vest because it was a rezone application. The court denied his subsequent motion for reconsideration. He appeals.

The central issue is whether Mr. Burkholder's PUD application vested to the regulations in effect at the time the application was filed. ``Vesting' refers generally to the notion that a land use application, under the proper conditions, will be considered only under the land use statutes and ordinances in effect at the time of the application's submission.' Friends of the Law v. King County, 123 Wn.2d 518, 522, 869 P.2d 1056 (1994). `The purpose of vesting is to provide a measure of certainty to developers, and to protect their expectations against fluctuating land use policy.' Id. Vesting, however, does not apply to rezones. See Teed v. King County, 36 Wn. App. 635, 644, 677 P.2d 179 (1984). `A request for a PUD is treated as a request for a rezone.' Johnson v. City of Mount Vernon, 37 Wn. App. 214, 218, 679 P.2d 405 (1984). Mr. Burkholder contends his PUD application was not a rezone application. He asserts his PUD application vested because it qualified as a preliminary plat application for a subdivision in accordance with case law and RCW 58.17.033. RCW 58.17.033, also known as the `vested rights doctrine,' states in relevant part:

(1) A proposed division of land, as defined in RCW 58.17.020, shall be considered under the subdivision or short subdivision ordinance, and zoning or other land use control ordinances, in effect on the land at the time a fully completed application for preliminary plat approval of the subdivision, or short plat approval of the short subdivision, has been submitted to the appropriate county, city, or town official.

(2) The requirements for a fully completed application shall be defined by local ordinance.

See Ass'n of Rural Residents v. Kitsap County, 141 Wn.2d 185, 193, 4 P.3d 115 (2000). Mr. Burkholder asserts that because his PUD application proposed a division of land into 49 parts, contained a preliminary plat and was a fully completed and compliant subdivision application, it was entitled to vest to the zoning or other land use control ordinances in effect on the land.

Although Mr. Burkholder claims a PUD application can generally vest by demonstrating conformance with chapter 58.17 RCW, the language of RCW 58.17.033 clearly provides that the vested rights doctrine will only apply to a proposed division of land when a `fully completed application for preliminary plat approval' is submitted. RCW 58.17.033(1) (emphasis added).

In applying Noble Manor Co. v. Pierce County, 133 Wn.2d 269, 943 P.2d 1378 (1997) and Schneider Homes, Inc. v. City of Kent, 87 Wn. App. 774, 942 P.2d 1096 (1997), our Supreme Court stated, `A PUD is a form of property development and, thus, when a preliminary plat application is coupled with a PUD proposal, the PUD ordinance is one of the laws in effect at the time of application to which the vested rights doctrine applies.' Ass'n of Rural Residents, 141 Wn.2d at 195. But here, Mr. Burkholder's PUD application was not coupled with a preliminary plat application. When he submitted his application, the county had a subdivision ordinance, OCC 16, and a zoning ordinance, OCC 17. Mr. Burkholder did not submit a fully completed application for preliminary plat approval because such applications were governed by the requirements of OCC 16.20. His application did not meet OCC 16.20 requirements for seeking preliminary plat approval. Rather, he submitted only an application for a proposed PUD pursuant to OCC 17.45. Moreover, as evidenced by these two sections, the OCC did not contemplate a PUD application to be the equivalent of a preliminary plat application. Instead, the OCC required two applications: an application to subdivide the land under OCC 16.20 and an application to rezone the land under OCC 17.45. Because the OCC considered an application for a planned development to be a rezone application and Mr. Burkholder did not submit a preliminary plat application in conjunction with his PUD application, the vested rights doctrine does not apply.

The Okanogan County subdivision ordinance does not appear to be a part of our record, but the parties do not dispute its contents as attached to Pine Forest's brief.

Mr. Burkholder also asserts in the alternative that his PUD application must vest pursuant to Friends of the Law, 123 Wn.2d 518, because he followed all the Planning Office's directives and requirements and relied on their decision that his application was vested.

In Friends of the Law, the requirements for a fully completed application for preliminary plat approval under the King County Code were highly ambiguous. As a result, our Supreme Court stated that vague and discretionary vesting procedures could not be used to deny an applicant vested rights, where an applicant attempted in good faith to comply with the ordinance as interpreted by the County. See Friends of the Law, 123 Wn.2d at 525. Here, however, the OCC was not ambiguous. It specifically set out the requirements for both a preliminary plat application and a PUD application. OCC 16.20; OCC 17.45. Although Mr. Burkholder may have acted in good faith in relying on the County's vesting decision, his PUD application is still not entitled to vest under the vested rights doctrine. There is neither case law nor statutory authority to support extending the vested rights doctrine to a PUD application. To grant Mr. Burkholder's PUD application vested status on such a theory would result in judicial expansion of the vested rights doctrine, which we cannot do. Noble Manor, 133 Wn.2d at 280. Because this issue is dispositive, we need not address the contentions raised in the cross appeal.

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.

SCHULTHEIS, J. and KURTZ, J., concur.


Summaries of

Pine Forest Owners Association v. Okanogan County

The Court of Appeals of Washington, Division Three
Nov 16, 2004
124 Wn. App. 1016 (Wash. Ct. App. 2004)
Case details for

Pine Forest Owners Association v. Okanogan County

Case Details

Full title:PINE FOREST OWNERS ASSOCIATION, a Washington Nonprofit Corporation…

Court:The Court of Appeals of Washington, Division Three

Date published: Nov 16, 2004

Citations

124 Wn. App. 1016 (Wash. Ct. App. 2004)
124 Wash. App. 1016