James Chumbley v. Snohomish County ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JAMES and EVELYN CHUMBLEY,
husband and wife; BNSF RAILWAY No. 74528-0-1
COMPANY, INC., a Delaware corpora
tion, DIVISION ONE
Appellants,
and
IRENE ARTHERHOLT; THE LESTER
G. AND IRENE ARTHERHOLT
REVOCABLE TRUST; GLENN AND
PATRICIA DALBY, husband and wife;
ROY MAIN; THOMAS and MADELINE
NORMAN, husband and wife; PUBLISHED OPINION
Plaintiffs, FILED: December 27, 2016
SNOHOMISH COUNTY, a Washington
municipal corporation; SNOHOMISH
HEALTH DISTRICT, a Washington
municipal corporation; BEGIS
BUILDING INC., a Washington
corporation; JAKE BEGIS,
Respondents,
and
KEE BONG KIM and DIANA YONG,
husband and wife,
Defendants.
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Becker, J. — Steep bluffs rise above the railroad tracks that run along the
shoreline between Edmonds and Mukilteo. A developer built a residence on an
upland lot and began to install an approved sewage disposal system on two
hillside lots below. While grading the hillside for the drain field, the installer
struck a spring and caused seepage to flow down the slope and into a private
driveway. The railroad and neighboring homeowners sued to stop the use of the
sewage disposal system pending further engineering analysis. They alleged that
grading had occurred on the hillside lots without enforcement of Snohomish
County ordinances regulating the disturbance of land in landslide hazard
areas. The trial court dismissed the action as an untimely land use petition that
should have been brought months earlier when the sewage system was
approved and the building permit was issued.
The dismissal was a misapplication of Samuel's Furniture, Inc. v. Dep't of
Ecology. 147 Wash. 2d 440, 54 P.3d 1194, 63 P.3d 764 (2002). The county has an
independent and ongoing responsibility to regulate grading on steep
slopes. That responsibility is not discharged or preempted when a health district
approves a sewage system for placement on a slope. Because this action was
timely filed within 21 days of the county's final decision that a permit to grade the
hillside lots was not required, we reverse and remand for reinstatement of the
complaint.
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CHRONOLOGY
In 2014, respondents Jake Begis and his company, Begis Building Inc.
("Begis"), made plans to build a single-family residence at 11706 Marine View
Drive, Edmonds, Washington. The Marine View Drive address for the residence
Begis planned is on an upland lot numbered 36.
To begin the project, Begis had to get permission from two distinct
governmental entities. He needed to get a building permit from the Snohomish
County Department of Planning and Development Services ("County Planning").
County Planning administers the Snohomish County Unified Development Code,
Title 30 of the Snohomish County Code (SCC). When application is made for
construction on a parcel of land not served by a public sanitary sewer system,
County Planning may not issue a building permit "without prior approval from the
Snohomish Health District of an approved means of waste disposal." SCC
30.50.104(2). Because lot 36 is not served by a public sewer, Begis also needed
an approval from the Snohomish Health District, an independent special purpose
district. The Health District regulates location, design, operation, maintenance,
and monitoring of onsite sewage systems in the county under rules adopted by
the State Board of Health. RCW 43.20.050(3); WAC 246-272A-0001(2); see
Snohomish Health District Sanitary Code chs. 8.1, 8.5, 8.6.
On August 11, 2014, Begis applied to the Health District for an onsite
sewage disposal permit. Clerk's Papers at 236. Begis applied for a permit for
what is referred to as an "onsite" system even though the drain field was, in a
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sense, offsite; that is, it was not going to be on lot 36 with the residence.1 As
would later become clear in the course of the Health District's review, see Clerk's
Papers at 411-13, 426, 453, the application proposed to pipe the septic effluent
down the street, across an easement over a neighbor's property, and downhill to
two vacant lots Begis owns on the blufffacing west. These hillside lots are
numbered 60 and 61. They are located above the north-south line of tracks for
respondent Burlington Northern Santa Fe Railroad and homes on the west side
of Possession Lane.
On December 2, 2014, Begis applied to County Planning for a building
permit to build the residence on lot 36. Clerk's Papers at 691. The building
permit application did not mention lots 60 and 61. And it did not mention the plan
for building a septic drain field on the hillside below the residence.
On the same date, Begis applied to County Planning for a land disturbing
activity permit for the construction of the residence on lot 36. Clerk's Papers at
222. The reason for this application was that County Planning, in addition to
being in charge of issuing building permits under SCC 30.50.104, has additional
responsibilities under two other chapters: Land Disturbing Activity, chapter
30.63B SCC, and Geologically Hazardous Areas, chapter 30.62B SCC. These
are among the ordinances the county enacted to fulfill the mandate of the Growth
Management Act, chapter 36.70A RCW, for the adoption of development
regulations to protect critical areas, which include geologically hazardous areas.
1An onsite sewage system means "an integrated system of components,
located on or nearby the property it serves, that conveys, stores, treats, and/or
provides subsurface soil treatment and dispersal of sewage." WAC 246-272A-
0010(2) (emphasis added).
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RCW 36.70A.060(2); RCW 36.70A.030(5); SCC 30.10.080. Before the
commencement of any nonexempt land disturbing activity as defined in SCC
30.91 L.025, a land disturbing activity permit must be obtained from County
Planning. SCC 30.63B.030. A land disturbing activity permit will not be issued
unless there has been review under the State Environmental Policy Act, chapter
43.21C RCW, if applicable. SCC 30.63B.050(1)(g). In geologically hazardous
areas, including landslide hazard areas, development activity may not occur
without permission from County Planning, conditioned on submission of a site
development plan, a geotechnical report, and approval of a critical area site plan.
SCC30.62B.130, .140, .160.
The application for a land disturbing activity permit had a number linking it
to the building permit application for lot 36. The application described the project
as a single family residence on lot 36 with an "off site septic system." It did not
mention lots 60 and 61 as the proposed location for the septic system. Clerk's
Papers at 222. Begis did not separately apply for a land disturbing activity permit
for lots 60 and 61, even though he planned to use them as the site of the drain
field for the sewage system.
Lot 36 was designated as a critical area because of its proximity to steep
slopes. Clerk's Papers at 230. See SCC 30.91 C.340(5)(b). County Planning
reviewed the drainage plan and storm water site plan and required submission of
a critical area site plan. See generally SCC 30.62B.030-.160. Comments by
County Planning were concerned solely with lot 36. Clerk's Papers at 230.
Presumably, the same review would have been conducted for lots 60 and 61 if
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an application had been submitted for those lots. With slopes greater than 33
percent, lots 60 and 61 are also in an area designated as a critical area because
of the history and risk of landslide hazard. Clerk's Papers at 293, 296, 453.
On December 15, 2014, the Health District disapproved the application for
an onsite sewage disposal permit, noting that the area along Possession Lane
had been subject to previous landslides. The Health District required Begis to
submit an engineering report with "technical reasoning explaining how stability of
the land in the proposed primary and reserve sewage disposal areas" would
meet the requirements of State Board of Health regulations for location of onsite
sewage systems, WAC 246-272A-0210. Clerk's Papers at 242.
On January 7, 2015, Begis submitted a geotechnical report from engineer
Peter Chopelas in response to the Health District's concerns. The summary of
the report stated that the stability of the building site would not be affected by the
addition of a septic system on the bluff. Clerk's Papers at 451.
On January 29, 2015, the Health District again disapproved the
application, requesting a geotechnical report specific to lots 60 and 61. Clerk's
Papers at 453.
On February 3, 2015, Chopelas submitted a more detailed engineering
report. Clerk's Papers at 455-56.
On February 23, 2015, the Health District approved the application for an
onsite sewage disposal permit. Clerk's Papers at 682-88. Under SCC
30.50.104(2), the Health District's approval cleared the way for County Planning
to issue a building permit for the residence on lot 36.
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On February 24, 2015, County Planning issued a building permit for the
residence on lot 36 and a land disturbing activity permit for lot 36 for "Clearing,
grading and Targeted Drainage Plan" for the proposed single family residence.
Clerk's Papers at 690, 233. Neither of these permits mentioned lots 60 and 61.
On March 17, 2015, Randolph Sleight, chief engineering officer for County
Planning, sent Begis a stop work order noting "ongoing issues" relating to the
clearing and grading of lot 36 beyond the limits of the land disturbing activity
permit. The letter required Begis to stabilize the site and stop work pending drier
weather and closer inspection. "If the applicant does not comply, the County will
initiate revocation of your permits per SCC 30.85.310." Clerk's Papers at 245-46.
At the request of County Planning, a peer review of Chopelas' geotechnical
report was conducted, but only with respect to lot 36. Clerk's Papers at 170.
On April 23, 2015, County Planning lifted the stop work order. Clerk's
Papers at 248.
On June 11, 2015, the Health District gave Begis an installation permit for
the previously approved sewage disposal system. Clerk's Papers at 463. To
proceed with the installation, Begis hired a contractor to grade lots 60 and 61 for
use as the drain field.
On June 29, 2015, William Hultman of the consulting firm of Shannon &
Wilson Inc. wrote to County Planning and the Health District with concerns about
the construction of the drain field on lots 60 and 61. Shannon & Wilson had been
hired by the railroad to do a geotechnical review and to critique the engineering
reports submitted by Chopelas. Hultman asserted that the Chopelas reports
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mischaracterized the geology of the site, failed to account for the presence of
groundwater, recommended an alignment for piping the effluent downhill that
risked introducing additional water into a known landslide hazard area, and used
unsound engineering methods. Hultman stated the firm's opinion that the
proposed construction of the drain field on the hillside above the tracks would
possibly expose the railroad and the travelling public to added slope stability
hazards "during construction and over the service life of the installation." Clerk's
Papers at 164-71.
On July 6, 2015, attorneys for the railroad wrote to County Planning and
the Health District to inform them that within the past week, groundwater had
been seen flowing down the slope from where the contractor was drilling the path
for the pipeline to the drain field. The letter enclosed a field report by Shannon &
Wilson documenting the groundwater seepage. The report stated, "It is likelythat
the drillhole intercepted a groundwater-bearing layer in the slope." Clerk's
Papers at 177-78.2
On July 14, 2015, County Planning posted a stop work order on lots 60
and 61 "for altering drainage." The complaint investigation report notes,
"Seepage coming from site and a ditch was dug across road and onto BNSF
property." Clerk's Papers at 220.
On July 20, 2015, County Planning issued a notice of violation directed to
Begis. The notice stated that land disturbing activity on lots 60 and 61 had
2 The grading contractor later admitted to County Planning that he struck
an underground spring and dug a ditch to divert the flow onto a private road.
Clerk's Papers at 262.
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No. 74528-0-1/9
occurred without a permit. See SCC 30.63B.030. "The land disturbing activity
involved the alteration of a natural drainage course and grading within a critical
area." The suggested corrective actions included obtaining a land disturbing
activity permit. Clerk's Papers at 251.
On July 22, 2015, Sleight informed Begis that the diversion of the flow into
the ditch was unacceptable. A land disturbing activity permit for the work being
done on lots 60 and 61 was necessary, and it would have to be supported by an
alternative drainage plan. Sleight's letter stated, "No additional work is allowed
or authorized on this site until a land disturbing activity permit has been approved
by the County." Clerk's Papers at 254-55.
Also on July 22, 2015, an attorney for the county sent a letter to appellants
acknowledging receipt of the June 29 and July 6 correspondence. The letter
advised that concerns regarding the approved sewage system should be
specifically directed to the Health District because it was the issuing agency. The
letter stated, "On July 14, 2015, the County issued a stop work order for
additional work in the area separate and distinct from the OSS [onsite sewage
system] concerning Land Disturbing Activity without the necessary permits and
approvals. The County is following its standard procedures to address that
matter." Clerk's Papers at 189.
On August 5, 2015, Begis applied for a land disturbing activity permit for
lots 60 and 61. The application was separate from the earlier application
pertaining to lot 36. The project was to "add a drainage culvert for run-off control
No. 74528-0-1/10
on Possession Lane to catch seepage and convey it to existing catch basin."
Clerk's Papers at 265-66.
On August 12, 2015, appellants wrote to the county and the Health
District, noting the absence of any documented review of lots 60 and 61 for land
disturbing activity and development in critical areas. They asserted that County
Planning—not the Health District—was responsible for conducting that review.
Their letter claimed that despite the stop work order posted on July 14, Begis
was still clearing brush and drilling perk test holes on the hillside lots as recently
as August 11 and there was a continuing discharge of turbid water and sediment
water from the previously drilled hole. Clerk's Papers at 159.
On the same date, Sleight wrote to Begis that the grading and seepage on
lots 60 and 61 was a violation that had to be resolved by restoration before a
certificate of occupancy could be issued for the residence, and he reiterated that
a land disturbing activity permit was required. Sleight informed Begis that the
Shannon & Wilson report had raised "concerns regarding the location of the
proposed drainfield on Lots 60 and 61." His letter stated that the county did not
issue or approve permits for this work and deferred to the Health District for
review and next steps in addressing the concerns raised by Shannon &Wilson.
Clerk's Papers at 274.
On August 18, 2015, Chopelas reported to County Planning that adding a
culvert would solve the problem of surface drainage and "no drainage
modification approval should be necessary." Clerk's Papers at 277.
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No. 74528-0-1/11
On September 4, 2015, County Planning wrote to Begis stating that
approval of the drainage modification could not be recommended due to
insufficient information. Clerk's Papers at 283.
On September 8, 2015, Begis responded to County Planning by e-mail
concerning his application for a land disturbing activity permit for work on lots 60
and 61. His message stated, "The seepage is permanently stopped. So, we will
not be needing this permit, and, I am withdrawing the application." Clerk's
Papers at 283.
On September 9, County Planning made the following entry into its case
activity log:
• Begis is taking out the pipe and filling in the ditch with dirt
• No permit will be required
• No water is discharging through the area
• The leak has been located and corrected
Clerk's Papers at 260.
That same day, County Planning closed its case file on the enforcement
action.3
On September 17, 2015, the Health District asked County Planning to
confirm that the stop work order and notice of violation had been remedied. A
County Planning manager responded that the grading code violation and stop
work order "are being addressed and are not viewed as related to the final
inspection of the building permit." The Health District pressed for assurance that
3 The date of case closure is listed as September 9, 2015, in a summary of
the enforcement action initiated by the stop work order on July 14, 2015. Clerk's
Papers at 291. The case activity log lists the date of case closure as September
11, 2015. Clerk's Papers at 260. For purposes of this appeal, we assume the
closure occurred on September 9.
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No. 74528-0-1/12
the notice of violation had been resolved because the outcome might affect the
Health District's final review of the sewage system as built. The County Planning
manager replied, "It doesn't matter, the drainfield is a separate issue. However,
it's my understanding that the stop work has been resolved through restoration."
Clerk's Papers at 286-87 (e-mail correspondence). The Health District inspected
the site and gave final approval of the installation of the sewage disposal system
on September 18, 2015. Clerk's Papers at 400, 402, 463.
On September 22, 2015, County Planning made a final inspection of the
work done under the building permit for lot 36. The final inspection approval
constituted a certificate of occupancy for the residential structure. Clerk's Papers
at 469-70.
On September 25, 2015, Begis sold the completed home to respondents
Kee Bong Kim and Diana Yong. Clerk's Papers at 389.
On September 30, 2015, the present action was filed against the county,
the Health District, Begis, and new homeowners Kim and Yong. The plaintiffs
are the railroad and neighboring homeowners. Some own property on
Possession Lane below lots 60 and 61, and some own property on Marine View
Drive that rely on lots 60 and 61 for lateral and subjacent support. Among other
things, their amended complaint alleges that County Planning failed to assure
that the construction of the sewage system drain field on lots 60 and 61 complied
with the county's land disturbing activity code and critical areas ordinances.
According to the complaint, the county improperly deferred enforcement to the
Health District.
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No. 74528-0-1/13
The complaint seeks various forms of relief, including review under the
Land Use Petition Act (LUPA), chapter 36.70C RCW. The complaint asks the
court to enjoin the homeowners from using the sewage system and to prohibit
County Planning and the Health District from issuing further approvals in the
absence of proper review.
On October 7, 2015, the plaintiffs moved for an order to show cause why
writs of review, mandamus, and prohibition should not be issued.
On October 28, 2015, the county filed an answer admitting that it did not
perform any "permitting review" relating to the location of the sewage system on
lots 60 and 61. The county's answer asserted that it did not have to perform
such review because the Health District had exclusive authority to approve
applications for the design and installation of onsite sewage systems. Clerk's
Papers at 663-65. The Health District filed an answer stating that the county had
the exclusive responsibility for reviews required by the critical areas ordinances.
Clerk's Papers at 638.
In November 2015, the defendants moved to dismiss the complaint as an
untimely land use petition. The parties filed briefs.
On December 2, 2015, after a hearing, the court entered a written order
granting the motion to dismiss. The court concluded that LUPA provided an
adequate remedy at law for all stated causes of action and the complaint was
untimely because it was filed months after the 21-day deadline expired for
challenging the building permit under LUPA.
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No. 74528-0-1/14
This appeal followed. Denial of a motion to dismiss a LUPA action is
reviewed de novo. Durland v. San Juan County. 175 Wash. App. 316, 320, 305
P.3d 246 (2013), affd, 182 Wash. 2d 55, 340 P.3d 191 (2014).
DISCUSSION
A land use petition is timely if it is filed within 21 days "of the issuance of
the land use decision." RCW 36.70C.040(3)(2). This deadline is "stringent."
Asche v. Bloomguist. 132 Wash. App. 784, 795, 133 P.3d 475 (2006), review
denied, 159 Wash. 2d 1005 (2007). It reflects a strong public policy of finality in
land use decisions. Samuel's Furniture. 147 Wash. 2d at 458-59. Even illegal land
use decisions will be allowed to stand if not timely challenged under LUPA.
Habitat Watch v. Skagit County. 155 Wash. 2d 397, 407, 120 P.3d 56 (2005).
"Land use decision" means a final determination by a local jurisdiction's
body or officer with the highest level of authority to make the determination on
three different types of decisions. RCW 36.70C.020(2).4 A land use decision
4 (2) "Land use decision" means a final determination by a local
jurisdiction's body or officer with the highest level of authority to
make the determination, including those with authority to hear
appeals, on:
(a) An application for a project permit or other governmental
approval required by law before real property may be improved,
developed, modified, sold, transferred, or used, but excluding
applications for permits or approvals to use, vacate, or transfer
streets, parks, and similar types of public property; excluding
applications for legislative approvals such as area-wide rezones
and annexations; and excluding applications for business licenses;
(b) An interpretative or declaratory decision regarding the
application to a specific property of zoning or other ordinances or
rules regulating the improvement, development, modification,
maintenance, or use of real property; and
(c) The enforcement by a local jurisdiction of ordinances
regulating the improvement, development, modification,
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No. 74528-0-1/15
should memorialize the terms of the decision, not simply refer to them, in "some
tangible, accessible way" so that a diligent citizen may "know whether the
decision is objectionable or, if it is, whether there is a viable basis for a
challenge." Vogel v. City of Richland. 161 Wash. App. 770, 780, 255 P.3d 805
(2011); see ajso Durland v. San Juan County. 174 Wash. App. 1, 13, 298 P.3d 757
(2012).
The building permit did not memorialize in a tangible, accessible way any
terms controlling development on lots 60 and 61. A diligent citizen who
examined the building permit and the land disturbing activity permit issued on
February 24, 2015, would have learned only about the construction proposed for
lot 36.
Respondents nevertheless contend the complaint is a belated challenge to
the issuance of the building permit. The building permit was issued for lot 36 on
February 24, 2015, after the Health District approved the design and location of
the onsite sewage system. Respondents contend the issuance of the building
permit was a "determination by inference" that Begis could build the residence
without further reviews and permits. They argue that if the railroad and
homeowners believed review under the code provisions for land disturbing
activity and critical areas was legally required, they had to bring a LUPA petition
within 21 days of the building permit issuance. They say under Samuel's
Furniture, another case involving government entities with overlapping regulatory
maintenance, or use of real property. However, when a local
jurisdiction is required by law to enforce the ordinances in a court of
limited jurisdiction, a petition may not be brought under this chapter.
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No. 74528-0-1/16
responsibilities, the building permit implied that Begis had been cleared to grade
lots 60 and 61.
In Samuel's Furniture, the city of Ferndale determined that a furniture
business did not require a shoreline permit to expand for expansion of its store
because the project was outside the designated shoreline area. Samuel's
Furniture, 147 Wash. 2d at 444. Ferndale issued a building permit and a fill and
grade permit. Samuel's Furniture, 147 Wash. 2d at 445. A year later, when the
project was already under construction, the Department of Ecology used a
different map and concluded the project was inside the designated shoreline
area. The Department of Ecology threatened enforcement action unless the
business obtained a permit for substantial development on a shoreline. Samuel's
Furniture, 147 Wash. 2d at 445. The Supreme Court held that the Department of
Ecology, having failed to challenge Ferndale's permitting decision by means of a
timely LUPA petition, was barred from collaterally attacking the decision by
means of an independent enforcement action. Samuel's Furniture, 147 Wash. 2d at
463.
The City's issuance of the fill and grade and building permits
necessarily required a determination that the project was outside
the shoreline jurisdiction. . .. Ecology could have challenged the
issuance of those permits on the basis that they are inconsistent
with the SMA [Shoreline Management Act of 1974] because no
substantial development permit was issued.
Samuel's Furniture, 147 Wash. 2d at 451; see also Twin Bridge Marine Park, LLC v.
Dep't of Ecology, 162 Wash. 2d 825, 829, 175 P.3d 1050 (2008).
County Planning could not have issued the building permit without the
Health District's prior approval of the sewage system. The respondents thus
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No. 74528-0-1/17
argue that the building permit necessarily required a preliminary determination
that the plan to grade lots 60 and 61 had been fully reviewed for compliance with
regulations having any relationship to the sewage system, in the same way that
the Ferndale permits in Samuel's Furniture necessarily required Ferndale to
make a preliminary determination that the project was not on the shoreline. They
contend the appellants' request for revocation of the building permit pending
further environmental review is an untimely collateral attack on the building
permit.
The analogy to Samuel's Furniture is unsound. The issuance of a building
permit did not necessarily require County Planning to make a preliminary
decision approving grading for the drain field on lots 60 and 61. No ordinance or
statute requires such preliminary approval. Begis did not file an application for a
land disturbing activity permit to grade lots 60 and 61 or otherwise seek approval
from County Planning before beginning the grading.
The Health District's approval of the onsite sewage system is not a
substitute for County Planning's ongoing duty to enforce the critical areas
ordinances when a sewage system is installed in a landslide hazard area. Unlike
in Samuel's Furniture, the two regulatory agencies—County Planning and the
Health District—did not have the same decision to make and did not have
regulatory authority over the same activities. They operate under different
governing statutes with different purposes. As the Health District describes its
mission, the focus "is directed to effective treatment of sewage effluent from a
public health perspective." The Health District's review of the design and location
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No. 74528-0-1/18
of an onsite sewage system is concerned to some degree with the potential for
erosion, WAC 246-272A-0220. But the Health District is not charged with
deciding whether grading a hillside for a drain field is permitted under the
Snohomish County Code. The Health District does not enforce the county code
provisions designed to prevent landslides.
The record reflects the two agencies' understanding that they have
different responsibilities. The county's letter of July 22, 2015, characterized the
stop work order as related to "additional work in the area separate and distinct"
from the onsite sewage system. The county's final correspondence with the
Health District took pains to characterize the stop work order and notice of
violation as unrelated to the Health District's approval of the sewage system.
The Health District's answer to the complaint states that the responsibility for
enforcing the county code in critical areas is exclusively the county's.
The county argues in part that regulations for onsite sewage systems
preempt the county from enforcing its own ordinances. The Health District
disagrees with the county on this point, Clerk's Papers at 645, and rightly so.
The statute authorizing the Board of Health regulations, RCW 43.20.050, is
concerned with the appropriate design and construction of onsite sewage
systems. It contains no preemptive language negating a county's ability to
concurrently enforce ordinances protecting slope stability.
The building permit stated on its face that "all activity authorized by this
permit shall comply with chapters 30.63A and 30.63B SCC," the county code
provisions governing drainage and land disturbing activity. Clerk's Papers at
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No. 74528-0-1/19
690. This language speaks to future activity, after the building permit is issued.
Thus, County Planning's issuance of the building permit for lot 36 did not imply a
final decision not to review grading activity on lots 60 and 61 under the county
critical areas ordinances. Begis was not entitled to assume that the building
permit cleared him to grade lots 60 and 61 without a land disturbing activity
permit.
County Planning's issuance of the building permit for lot 36 also did not
imply the completion of the enforcement actions the county would later
undertake. In March 2015, County Planning issued a stop work order when
Begis exceeded the limits of the land disturbing activity permit for clearing on lot
36 and threatened to revoke the building permit. In July 2015, County Planning
posted a stop work order in response to the seepage coming from lots 60 and 61.
In August 2015, County Planning threatened to withhold the occupancy permit
unless Begis obtained a land disturbing activity permit for the grading on these
lots. The building permit issued on February 24, 2015, could not have been a
final land use decision as to these later enforcement actions.
When the seepage was observed in July 2015, County Planning readily
recognized its independent responsibility to protect the hillside. Sleight directed
Begis to apply to County Planning—not to the Health District—for a land
disturbing activity permit for the restoration work being done on lots 60 and 61.5
5 On August 6, 2015, Sleight documented a phone call from the grading
contractor:
He acknowledged that he had done the temporary diversion of
drainage that was coming from his drilling excavation work ....
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No. 74528-0-1/20
Sleight recognized that the installation of the sewage system, though permitted
by the Health District, also needed a permit from County Planning because it was
being done in a critical area and it threatened the stability of the hillside. It is
unclear why County Planning decided in September 2015 that a permit was not
required.
We reject the respondents' argument that the complaint is an implied
challenge to or a belated collateral attack on the building permit. The building
permit was for lot 36. It did not memorialize or imply a decision that permits and
review under the land disturbing activity and critical areas ordinances was
unnecessary for work done on lots 60 and 61. Insofar as the building permit had
any relationship to lots 60 and 61, the most it may have implied is that the design
and location of the onsite sewage system satisfied State Board of Health rules
that are primarily concerned with the effective treatment of effluent.
. . . clearly he must have tapped a shallow perched aquifer
or water table at the top of the bluff and redirected it down over the
bank via his drilling operation.. . .
I asked him how he would feel if someone piped water
directly onto his property and he agreed that this was not right....
I asked why he diverted the flows onto the neighbor and he
said that was a better place than going down the driveway. . . .
I then told him that this violation is a potentially very serious
problem which he may have made worse and that being the overall
stability of the hillside and that he and Mr. Begis were responsible
to correct the violations that had occurred.. . .
He closed the conversation by indicating he would be trying
to find and stop the migration of water at its source and thus
relieve the flow going into the temporary pipe and restore the
ground and remove the pipe. I told him even this work would
require a permit... since all the work that he was describing was
in a critical area.
Clerk's Papers at 262.
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No. 74528-0-1/21
A building permit is one type of land use decision. RCW
36.70C.020(2)(a). It is not the only type. A land use decision may also be a final
determination on "the enforcement by a local jurisdiction of ordinances regulating
the improvement, development, modification, maintenance, or use of real
property." RCW 36.70C.020(2)(c). A final determination is one which leaves
nothing open to further dispute and which sets at rest the cause of action
between parties. Samuel's Furniture, 147 Wash. 2d at 452.
The complaint seeks review of the county's decision that Begis did not
have to obtain a permit to grade lots 60 and 61. This was a "land use decision"
concerning enforcement. RCW 36.70C.020(2)(c). It did not become final with
the issuance of the building permit because the potential for enforcement of the
county code on lots 60 and 61 continued to exist after the issuance of the
building permit.
County Planning closed its enforcement file on September 9, 2015, with
the decision that "no permit will be required." County Planning certified the
building for occupancy on September 22, 2015. These were County Planning's
final determinations that the county was finished with enforcement of land
disturbing activity and critical area ordinances on lots 60 and 61. Until these
decisions were made, it was open to further dispute whether County Planning
would require Begis to apply for a permit and submit to a rigorous geotechnical
review such as County Planning conducted for lot 36.
Because the present action was filed on September 30, 2015, it was within
the 21-day deadline. It was timely and should not have been dismissed.
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No. 74528-0-1/22
Whether the county code requires further review and permitting for lots 60
and 61 is an issue yet to be resolved on the merits. Our only holding is that the
complaint should not have been dismissed as untimely. On remand, all causes
of action in the complaint will be subject to resolution by the trial court.
Begis contends that even if the order of dismissal is reversed as to the
other respondents, it should be affirmed as to him and his company because
they retained no interest in the property and the complaint seeks no relief from
them. We reject this argument. Applicants as well as owners are necessary
parties to an action under LUPA. RCW 36.70C.040(2).
The order of dismissal is reversed and remanded for reinstatement of the
complaint and further proceedings not inconsistent with this opinion.
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WE CONCUR:
A. (^y"^
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