Gregory And Janette Kovsky v. Robert Fanfant And Melanie Bishop ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
GREGORY and JAN ETTE KOVSKY,
husband and wife, No. 76142-1-1
Appellants,
ORDER GRANTING MOTION
V. FOR RECONSIDERATION IN PART AND
DENYING IN PART, AND WITHDRAWING
ROBERT FANFANT and MELANIE R. OPINION AND SUBSTITUTING
BISHOP, husband and wife, and KING OPINION
COUNTY,
Respondents.
The appellants, Gregory and Janette Kovsky, have filed a motion for
reconsideration. The respondents, Robert Fanfant and Melanie Bishop, and King County,
have filed answers. The court has taken the matter under consideration and has
determined that the motion for reconsideration should be granted in part and denied in
part.
Now, therefore, it is hereby
ORDERED that the motion for reconsideration is granted in part as to the
scrivener's errors in the opinion and denied in part as to the remaining issues; and, it is
further
ORDERED that the opinion in the above-referenced case filed on February 12,
2018, is withdrawn and a substitute opinion be filed in its place. C-5
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COURT OF APPEALS DIV I
STATE OF VIASHINGTOR
2018 APR 16 AM II:05
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
GREGORY and JANETTE KOVSKY,
husband and wife, No. 76142-1-1
Appellants,
DIVISION ONE
V.
UNPUBLISHED OPINION
ROBERT FAN FANT and MELANIE R.
BISHOP, husband and wife, and KING
COUNTY,
Respondents. FILED: April 16, 2018
TRICKEY, J. — Robert Fanfant obtained a permit to construct an 89-foot tall
amateur (Ham) radio tower on the, residential property he shares with Melanie
Bishop.' Gregory and Janette Kovsky, Fanfant's neighbors, brought a nuisance
suit against Fanfant and King County. The trial court granted summary judgment
in favor of Fanfant and King County because the suit was time barred by the Land
Use Petition Act (LUPA), chapter 36.70C RCW. The Kovskys appeal the trial
court's order of summary judgment for Fanfant and King County. Finding no error,
we affirm.
FACTS
The Kovskys have lived in their home in Redmond, Washington for over
twelve years. In 2015, Fanfant purchased a neighboring home. The two homes
are adjacent, share a common boundary line, and are separated by a wooden
'This opinion refers to Robert Fanfant as Robert, and Robert Fanfant and Melanie Bishop
collectively as Fanfant where applicable. No disrespect to the parties is intended.
No. 76142-1-1 / 2
fence. The properties are zoned-RA-5.2 -
Robert is a licensed Ham radio operator. When Fanfant bought the home,
Robert intended to install an 89-foot antenna and tower on the property. Prior to
buying the home, Robert visited the King County Department of Permitting and
Environmental Review(DPER)and inquired into the permitting process for a Ham
radio tower.
In May 2015, Fanfant submitted a building permit application for the Ham
radio tower. DPER approved the permit on July 7, 2015, and posted notice of the
issuance of the building permit on its website on July 31, 2015. DPER staff
inspected the completed Ham radio tower, and the permit received final approval
on September 28, 2015.
The Kovskys were not notified of Robert's plans to build the Ham radio
tower or the issuance of the building permit. They had observed construction
activity on Fanfant's property, including tree removal and construction of a metal
structure. On January 31, 2016, the Kovskys returned from a walk to discover that
an 89-foot tall metal latticework structure with horizontally protruding antennae had
been erected in Fanfant's yard. The tower is closer to the Kovskys' home than
Fanfant's home and highly visible from both the Kovskys' backyard and inside their
house.
The Kovskys contacted King County for more information about the Ham
radio tower. On February 9, 2016, the Kovskys learned that Robert had obtained
a building permit and that the Ham radio tower had passed the DPER final
2 RA-5 is a rural area, with one dwelling per 5-acre lot.
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No. 76142-1-1 /3
inspection. King County inforrne'd them that no,community notice was required or
provided during the permitting process.
The Kovskys also learned that DPER had opened a code enforcement
investigation into the Ham radio tower due to complaints from Fanfant's neighbors.
The code enforcement officer found that licensed Ham radio stations are allowed
in all classes of property zones and are considered an accessory residential use.
The enforcement officer also found that Ham radio towers are exempt from the
development standards for communication facilities, but require a building permit.
The enforcement officer concluded that Fanfant's Ham radio tower was allowed
and that all required permits and approvals had been obtained. The enforcement
officer closed the code enforcement inquiry on January 27, 2016.
On February 22, 2016, the Kovskys filed suit against Fanfant and King
County alleging that the Ham radio tower is a nuisance in fact and law. They
alleged that Fanfant had failed to comply with zoning and permit requirements
when constructing the Ham radio tower. The Kovskys sought review of the building
permit, an injunction requiring removal of the tower and antenna, and a writ of
mandamus directing King County to enforce its land use regulations.
The parties moved for summary judgment. The trial court concluded that it
lacked the necessary jurisdiction under LUPA, RCW 36.70C.040. The trial court
granted summary judgment in favor of Fanfant and King County and dismissed the
case. The Kovskys appeal.
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No. 76142-1-1 / 4
ANALYSIS.
The parties filed cross motions for summary judgment, and the trial court
granted summary judgment in favor of Fanfant and King County. Summary
judgment is appropriate if there are no genuine issues of material fact and the
moving party is entitled to a judgment as a matter of law. CR 56(c); Macias v.
Saberhagen Holdings, Inc., 175 Wash. 2d 402, 408, 282 P.3d 1069(2012). "By filing
cross motions for summary judgment, the parties concede there were no material
issues of fact." Pleasant v. Repence BlueShield, 181 Wash. App. 252, 261, 325 P.3d
237(2014). The appellate court reviews an order of summary judgment de novo.
Enterprise Leasing, Inc. v. City of Tacoma, 139 Wash. 2d 546, 551, 988 P.2d 961
(1999).
Because the trial court granted summary judgment following cross motions
by the parties, we need only examine the legal issues presented and review them
de novo.
LUPA
The trial court granted summary judgment in favor of Fanfant and King
County because the case was time barred by LUPA. The Kovskys argue that
summary judgment was improperly granted because LUPA does not apply to their
nuisance claim.
LUPA is the exclusive means of judicial review of land use decisions. RCW
36.70C.030(1); see Habitat Watch v. Skagit County, 155 Wn.2d 397,407,120 P.3d
56(2005). LUPA was established to create "uniform, expedited appeal procedures
and uniform criteria" for reviewing land use decisions "in order to provide
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No. 76142-1-1/ 5
consistent, predictable, and timely judicial review." RCW 36.70C.010. To this end,
LUPA requires that a party appeal a land use decision within 21 days of issuance.
RCW 36.70C.040(3).
Under LUPA, a land use decision is issued (1) three days after a written
decision is mailed or notice is provided that the decision is publically available,(2)
the date a legislative body sitting in a quasi-judicial capacity passes the ordinance
or resolution, or (3) the date the decision is entered into the public record if the
decision is not written or an ordinance or resolution. RCW 36.70C.040(4)(a)-(c).
If a claim is not filed within 21 days, the claim is time barred and the trial court may
not grant review. RCW 36.70C.040(2). The procedural requirements, including
this time limitation, must be strictly met before a trial court's appellate jurisdiction
under LUPA is properly invoked. Citizens to Preserve Pioneer Park, LLC v. City
of Mercer Island, 106 Wash. App. 461, 467, 24 P.3d 1079 (2001). This deadline is
stringently enforced and applies even to erroneous or illegal land use decisions.
Chumbley v. Snohomish County, 197 Wn App. 346, 359, 386 P.3d 306 (2016).
The issuance of a building permit constitutes a land use decision under
LUPA. Asche v. Bloomquist, 132 Wash. App. 784, 790, 133 P.3d 475 (2006). A
building permit is best classified as a written decision, which is considered issued
three days after the decision is mailed or the date on which the local jurisdiction
provides notice that a written decision is publically available. Habitat Watch, 155
Wash. 2d at 408.
The King County Code (KCC) establishes the notice requirements for
issuing building permits. A building permit is a Type 1 decision made by the
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No. 76142-1-1 /6
director or designee of DPER. KCC 20.20.020(A)(1). Type 1 decisions require
public notice, which may be provided electronically. KCC 20.20.062, This notice
"shall be deemed satisfactory despite the failure of one or more individuals to
receive notice." KCC 20.20.062.3
Here, the July 7, 2015 building permit was the land use decision. DPER
posted notice of Fanfant's approved building permit on its website on July 31,
2015. Therefore, the 21-day time period to appeal the issuance of Fanfant's
building permit began on July 31, 2015. The Kovskys filed their complaint on
February 22, 2016, which is substantially more than 21 days after issuance of the
building permit. Therefore, the trial court correctly determined that the Kovskys'
complaint was time barred under LUPA and granted summary judgment in favor
of Fanfant and King County.
Minor Communication Facility
The Kovskys argue that their claim is not subject to the strict deadline in
LUPA because they are not challenging the issuance of the building permit.
Instead, the Kovskys argue that Fanfant's Ham radio tower is a nuisance per se
because Fanfant failed to obtain a conditional use permit(CUP)in compliance with
the development standards applicable to minor communication facilities. Because
the Ham radio tower4 is exempt from the development standards governing minor
communication facilities, the Kovskys' distinction fails.
3DPER posts notice of approved building permits online on its website.
At oral argument the Kovskys made a brief reference to the possibility that Fanfant's
Ham radio tower is not a "station" exempted under KCC 21A.26.020(G). Wash. Court of
Appeals oral argument, Kovsky v. Fanfant, No. 76142-1-1 (Nov. 3, 2017), at 18 min., 57
sec. to 19 min., 17 sec. We do not consider arguments made outside the briefing. RAP
10.3.
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No. 76142-1-1 /7
The KCC's zoning regulations govern the siting for towers and antennas for
communication facilities. Ch. 21A.26 KCC. The goal of these zoning requirements
is to minimize the number and visual impact of communication facilities' towers
and antennas. KCC 21A.26.010. Minor communication facilities have their own,
separate development standards. Ch. 21A.27 KCC.
The category of minor communication facilities includes facilities for the
transmission and reception of two-way radio signals. KCC 21A.06.215. New
transmission support structures for minor communication facilities must comply
with extensive preapplication procedures and review. KCC 21A.26.030(D); ch.
21A.27 KCC. These requirements include obtaining a CUP for transmission
support structures that will be over 60-feet tall when completed. KCC 21A.27.020,
.030.
Determining whether the Ham radio tower is subject to the regulations of a
minor communication facility, and therefore subject to the regulations governing
such facilities, requires examination of KCC ordinances. In construing ordinances
and statutes, the goal "is to effectuate legislative intent, giving effect to the plain
meaning of ordinary statutory language and the technical meaning of technical
terms and terms of art." Foster v. Wash. State Dep't of Ecology, 184 Wash. 2d 465,
471, 362 P.3d 959 (2015). The same rules of construction apply to interpretation
of municipal ordinances as to statutes. Faciszewski v. Brown, 187 Wash. 2d 308,
320, 386 P.3d 711 (2017). Interpretation of the law is de novo. Foster, 184 Wash. 2d
at 471. But appellate courts "give considerable deference to the agency charged
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No. 76142-1-1 /8
with enforcing an ordinance where the ordinance is ambiguous." Asche, 132 Wn.
App. at 797.
Ham radio is a two-way signal. As such, Ham radio towers meet the
definition of a minor communication facility. KCC 21A.06.215(A)(1). Therefore,
Ham radio towers would ordinarily be required to adhere to the development
standards of a minor communication facility under chapter 21A.27 KCC.
But, Ham radio stations are not subject to the provisions of chapter 21A.27
KCC. The KCC exempts licensed Ham radio stations from the provisions of
chapter 21A.26 KCC and permits them in all zones. KCC 21A.26.020(G). Ham
radio stations are also exempt from the standards and process requirements for
minor communication facilities.
All communication facilities that are not exempt under K.C.C.
21A.26.020 shall comply with this chapter as follows:
D. New, modified or consolidated minor communication
facilities shall comply with the standards of this chapter and K.C.C.
chapter 21A.27. In the case of a conflict between this chapter and
K.C.C. chapter 21A.27,[K.C.C.] chapter 21[A].27 shall apply.
KCC 21A.26.030. Because Ham radio towers are exempt under KCC
21A.26.020(G), they are not required to comply with the standards of chapters
21A.26 and 21A.27 KCC, as described in KCC 21A.26.030(D). Only those
facilities that are not exempt are subject to the stipulated regulations. KCC
21A.26.030.
Thus, while Ham radio towers are two-way radio facilities, they are
specifically excluded from the regulations for minor communication facilities. Due
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No. 76142-1-1/ 9
to this blanket exemption, Fanfant's 89-foot Ham radio tower was exempt from the
more stringent application process for minor communication facilities in chapter
21A.27 KCC.
The Kovskys contend that the Ham radio exemption in KCC 21A.26.020(G)
only applies to provisions of chapter 21A.26 KCC, and Fanfant was, therefore,
required to comply with the development standards for minor communication
facilities in chapter 21A.27 KCC. The Kovskys support this argument with
reference to the specification in KCC 21A.26.030(D), that chapter 21A.27 KCC
governs if the two chapters conflict.
This argument ignores the language of KCC 21A.26.030. Compliance with
the standards of chapters 21A.26 and 21A.27 KCC applies only to communication
facilities that are not exempt under KCC 21A.26.020. KCC 21A.26.030(D) never
applies to exempt facilities. As an exempt facility, Ham radio stations are not
required to comply with the standards for minor communication facilities as
outlined in KCC 21A.26.030(D).
Because of the exemption, the 89-foot tall Ham radio tower was not subject
to the extensive preapplication processes and CUP requirement of chapter 21A.27
KCC. Fanfant was only required to obtain a building permit for his Ham radio
tower.
The building permit issued for Fanfant's Ham radio tower was a land use
decision under LUPA. Any challenge to the building permit was subject to LUPA's
procedural requirements. Because the Kovskys did not file their challenge within
the strict 21-day appeal period, the Kovskys' LUPA claim is time barred and the
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No. 76142-1-1 / 10
trial court lacked jurisdiction to hear the challenge. We conclude that the trial court
properly granted summary judgment in favor of Fanfant and King County.
Notice Requirement
The Kovskys contend that their claim is not time barred because they filed
suit within 21 days of receiving actual notice of the building permit. We disagree,
because LUPA only requires general notice to begin the appeal period.
"LUPA does not require that a party receive individualized notice of a land
use decision in order to be subject to the time limits for filing a LUPA petition."
Samuel's Furniture, Inc. v. State, Dep't of Ecology, 147 Wash. 2d 440, 462, 54 P.3d
1194 (2002), 63 P.3d 764(2003). Instead,"LUPA seems to require merely that a
local jurisdiction provide general public notice by virtue of publication of the land
use decision." Samuel's Furniture, 147 Wash. 2d at 462.
Here, the record clearly shows that the permit was granted on July 7, 2015,
and DPER published notice of the building permit on its website by July 31, 2015.
The DPER's online posting constituted general notice and began the appeal
period. Individualized, actual notice was not required to start LUPA's time limit to
file an appeal, which then expired well before the Kovskys filed their suit.
Therefore, the Kovskys' suit was time barred.
Attorney Fees on Appeal
Fanfant requests reasonable attorney fees on appeal as the prevailing party
in an appeal of a land use decision.
The prevailing party on appeal of a decision by a county to issue, condition,
or deny a development permit involving a building permit is entitled to reasonable
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No. 76142-1-1/ 11
attorney fees and costs. RCW 4.84.370(1). The prevailing party on appeal must
have been the prevailing party or substantially prevailing party before the county
and in all prior judicial proceedings. RCW 4.84.370(1)(a), (b). To be entitled to
fees on appeal, a party must prevail in at least two courts. Habitat Watch, 155
Wash. 2d at 413. "Prevailing" includes jurisdictional wins. Durland v. San Juan
County, 182 Wash. 2d 55, 78-79, 340 P.3d 191 (2014).
Here, Fanfant successfully obtained a building permit from King County and
prevailed in both the trial court and this court. As the prevailing party at all levels
of this case, Fanfant is entitled to fees incurred on appeal to this court.
Affirmed.
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WE CONCUR:
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