Daniel P. Thompson, Apps. v. City Of Mercer Island, Resp. ( 2016 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 5,
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DANIEL P. THOMPSON and
THEODORE MISSELWITZ,
No. 72809-1-1
Appellants,
DIVISION ONE
CITY OF MERCER ISLAND, UNPUBLISHED OPINION
Respondent,
FILED: March 14, 2016
ANDERSON ARCHITECTURE,
Applicant, and ON THE ROCK, Owner,
Additional Parties
Pursuant to RCW
36.70C.040(2)(b)-(d).
Becker, J. — Daniel Thompson and Theodore Misselwitz appeal the trial
court's dismissal of their land use petition for lack of standing. Misselwitz lacks
standing because he failed to exhaust his administrative remedies under Mercer
Island's city code. Thompson lacks standing because he fails to demonstrate
that he was prejudiced by the land use decision. We affirm.
FACTS
On the Rock, a limited liability company, owned two vacant lots located on
Mercer Island. In 2009, the city of Mercer Island approved a short plat dividing
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the vacant lots into two 12,000-square-foot buildable lots. The short plat created
a private access and utility easement across lot one for the benefit of lot two.
The entire area of the easement was characterized as impervious surface, which
is hard surface that prevents water from entering the soil. Mercer Island's city
code limits the maximum impervious surface of a lot to 35 percent of its gross
square foot area. With the easement on lot one, there was that much less of an
allowance of surface remaining for the building footprint, patios, and driveways,
all of which would also count as impervious surface.
Seeking to avoid this limitation, On the Rock, through Anderson
Architecture, filed an application to amend the 2009 short plat in early July 2013.
The proposal was to alter the existing easement by turning part of it into a
separate tract, called Tract X. Tract X would serve as a private roadway to
access both lots. Tract X would be jointly owned by the owners of both lots.
Under the Mercer Island City Code, Tract X would not count as impervious
surface area against either lot. According to On the Rock, an additional 750
square feet of usable impervious surface area would thereby become available
for the development of lot one.
A public comment period followed the filing of the application. Daniel
Thompson is a neighbor to the property at issue. Thompson submitted written
comments in opposition to the proposed short plat.
A Mercer Island city planner approved the preliminary short plat
application on February 3, 2014. Thompson appealed the city planner's decision
to the Mercer Island Planning Commission. A public open record appeal hearing
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was held before the planning commission on July 23, 2014. As the only
appellant, Thompson was allotted 25 minutes to speak. Misselwitz, who lives just
north of the property at issue, attended the appeal hearing as a member of the
public. He was allotted 3 minutes to speak. At the end of the hearing, the
planning commission voted to uphold the city planner's approval and deny
Thompson's appeal. On July 28, 2014, the planning commission issued its
written decision.
On August 14, 2014, Thompson and Misselwitz appealed the planning
commission's decision by filing a land use petition in superior court as authorized
by the Land Use Petition Act, chapter 36.70C RCW. On the Rock and Anderson
Architecture, as owner and applicant on the land use decision, were named as
additional parties.
The city and On the Rock moved to dismiss the land use petition, arguing
that both Thompson and Misselwitz lacked standing to file a land use petition.
On November 7, 2014, the trial court granted the motion to dismiss. Thompson
and Misselwitz appeal, arguing that they both have standing.
TIMELINESS OF MOTIONS TO DISMISS
On the Rock and the city both filed their motions to dismiss based on lack
of standing on October 23, 2014. They noticed hearing for October 31, 2014.
Appellants contend the motions to dismiss were untimely.
Appellants argue that, according to a local court rule, motions to dismiss
are subject to the scheduling requirements of CR 56, requiring 28 days' notice.
The local rule states that deadlines for such motions "shall be as set forth in CR
No. 72809-1-1/4
56 and the Order Setting Case Schedule." LCR 56(c)(2). Appellants cannot
evade the plain language of the local rule, which contemplates that deadlines will
be set in the case schedule order.
The case schedule order issued for this case stated that "motions on
jurisdictional and procedural issues shall comply with Civil Rule 7 and King
County Local Rule 7, except that the minimum notice of hearing requirement
shall be 8 days." Appellants do not persuasively explain why a motion to dismiss
for lack of standing should not be characterized as a motion on a jurisdictional or
procedural issue.
While neither party has cited case authority exactly on point, we note that
the Supreme Court in another context has referred to standing under the Land
Use Petition Act as "jurisdictional." Knight v. City of Yelm. 173 Wash. 2d 325, 336,
267 P.3d 973 (2011). The statute itself calls for motions on "jurisdictional and
procedural issues" to be noted for resolution at the initial hearing, and it provides
that the defense of "lack of standing" also is to be raised by timely motion noted
for the initial hearing—in contrast to a hearing "on the merits," which can occur
later. RCW 36.70C.080(2)-(4). We conclude it is most consistent with the statute
to interpret the local rule as including a motion to dismiss for lack of standing in
the category of a motion on a jurisdictional or procedural issue. Such motions
under the case schedule order require only eight days' notice. On the Rock and
the city complied with the superior court's case schedule order because they filed
their motions to dismiss based on lack of standing exactly eight days before the
scheduled hearing.
No. 72809-1-1/5
Because the motions to dismiss complied with the superior court's case
schedule order, they were not untimely.
MISSELWITZ LACKED STANDING
The trial court found that Misselwitz lacked standing because he failed to
exhaust his administrative remedies. Appellants assign error to this
determination. Our review is de novo. See, e.g.. City of Burlington v.
Washington State Liguor State Control Board, 187 Wash. App. 853, 861, 351 P3d
875(2015).
A person who claims to be aggrieved or adversely affected by a land use
decision has standing to bring a land use petition only if he has exhausted his
administrative remedies to the extent required by law. RCW 36.70C.060(2)(d).
"The Legislature sensibly confined the category of non-owners eligible to seek
judicial review of such decisions to those who participated in the administrative
process to the extent allowed. This approach vests greatest discretion in local
decisionmakers, and is thus consistent with the Legislature's policy to accord
deference to local government and allow only limited judicial interference." Ward
v. Bd. of Skagit County Comm'rs, 86 Wash. App. 266, 271-72, 936 P.2d 42 (1997).
The Mercer Island City Code outlines the administrative approval process
for a preliminary short plat application. Upon receiving the application, the city
issues a public notice of the application. The notice must include a statement
that only people who submit written comments will be parties of record and only
parties of record will receive notice of the decision and have the right to appeal.
MICC 19.15.020(E)(2)(e). After the public comment period, the city issues its
No. 72809-1-1/6
decision. Any party of record may appeal the decision to the Mercer Island
Planning Commission by filing a letter of appeal with the city clerk. MICC
19.15.020(J)(1), .010(E). The city issues a public notice of the appeal. MICC
19.15.020(J)(4). An open record appeal hearing is then held before the planning
commission, which issues the final administrative decision. MICC
19.15.020(J)(5)(b), .010(E). The planning commission's decision may be
appealed "by a party of record with standing to file a land use petition in King
County Superior Court." MICC 19.15.020(J)(5)(g).
Misselwitz did not submit written comments in response to the city's public
notice of application. He did not file a letter of appeal to the planning
commission. He did, however, attend and speak at the open record appeal
hearing that occurred on July 23, 2014, before the planning commission. This
participation did not confer standing to appeal the planning commission's
decision to superior court because he spoke only as a member of the public, not
as an appellant. Because Misselwitz did not use the administrative process to
protest the application, he failed to exhaust administrative remedies.
Appellants argue that Misselwitz nevertheless has standing because of
the wording of the public notice appeal form sent to him and to other neighboring
property owners by the city. The form, "Public Notice of Open Record Appeal
Hearing," states: "Only those persons who submit written comments or testify at
the open record hearing will be parties of record; and only parties of record will
receive a notice of the decision and have the right to appeal." Appellants argue
that Misselwitz, by virtue of this form, became a party of record and acquired the
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right to appeal to superior court because he testified at the July 23 open record
hearing before the planning commission. The city concedes that the form
language is mistaken. Under the city code, one becomes a party of record by
submitting written comments on the initial application, and only a party of record
has the right to appeal the administrative staff approval to the planning
commission. The notice sent to Misselwitz incorrectly made it appear that he
would become a party of record simply by speaking before the planning
commission. The incorrect notice, however, does not override the provisions of
the city code for purposes of determining whether Misselwitz exhausted his
remedies. Misselwitz's opportunity to become a party of record occurred well
before he received the public notice of open record appeal hearing. Unlike
Thompson, Misselwitz did not submit written comments about the application and
did not appeal the decision to the planning commission. These are the steps in
the administrative process that he failed to complete.
Appellants further argue that Misselwitz did not need to exhaust
administrative remedies to have standing on his own because he was in effect
joining Thompson, who did become a party of record with the right to appeal to
the planning commission. This argument contradicts the plain statutory language
requiring exhaustion of remedies, which is written in the singular person: "A
person is aggrieved or adversely affected . . . when ... the petitioner has
exhausted his or her administrative remedies to the extent required by law."
RCW 36.70C.060(2).
No. 72809-1-1/8
Appellants rely on Jones v. The Town of Hunts Point, 166 Wash. App. 452,
456, 272 P.3d 853 (2011). review denied. 174 Wash. 2d 1016 (2012). That case is
not about exhaustion of remedies. It is not helpful in deciding whether Misselwitz
has standing.
We conclude Misselwitz lacked standing to file a land use petition in
superior court because he failed to exhaust his administrative remedies.
THOMPSON LACKED STANDING
The trial court found that Thompson lacked standing because he did not
establish that he was personally prejudiced by the land use decision. Appellants
assign error to this determination.
An allegedly aggrieved person has standing to file a land use petition only
if he shows that the land use decision has prejudiced him, or is likely to. RCW
36.70C.060(2)(a). To satisfy the prejudice requirement, a petitioner must show
that he would suffer injury in fact as a result of the land use decision. Chelan
County v. Nvkreim, 146 Wash. 2d 904, 934, 52 P3d 1 (2002). To show an injury in
fact, the petitioner must allege a "'specific and perceptible'" harm. Knight, 173
Wash. 2d at 341, quoting Suguamish Indian Tribe v. Kitsap County, 92 Wash. App.
816, 829, 965 P.2d 636 (1998). Ifthe petitioner alleges a threatened rather than
an existing injury, he "'must also show that the injury will be immediate, concrete
and specific; a conjectural or hypothetical injury will not confer standing.'"
Suguamish, 92 Wash. App. at 829, quoting Harris v. Pierce County. 84 Wash. App.
222, 231, 928 P.2d 1111 (1996) (internal quotation marks omitted).
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No. 72809-1-1/9
In Suguamish, there was evidence that Indian tribal members, one of
whom lived 150 feet from the proposed project and another whose property
would be surrounded on three sides by the proposed project, would be affected
by the large predicted increase in traffic. This evidence was held sufficient to
establish injury in fact. Suguamish, 92 Wash. App. at 831. In another case, a
petitioner owned land 1,300 feet away from the proposed subdivisions and
alleged that the development's use of an already-overdrawn aquifer would
adversely affect her ability to exercise her senior water rights. Knight, 173 Wash. 2d
at 342-43. These allegations were held sufficient to establish injury in fact.
Knight. 173 Wash. 2d at 343. In another case, a petitioner testified that his 60-acre
property adjacent to the proposed project would be damaged by storm water
runoff from the proposed project site. This too was held sufficient to establish
injury in fact. Anderson v. Pierce County. 86 Wash. App. 290, 300, 936 P.2d 432
(1997).
In contrast, in Nvkreim, four married couples who owned property
upstream from the property at issue alleged that their sole interest in the matter
was to preserve zoning protections in their district. Unaccompanied by other
allegations alleging specific injuries to petitioners or their properties, this interest
was too abstract to confer standing. Nvkreim. 146 Wash. 2d at 935. To have
standing, a petitioner's interest "must be more than simply the abstract interest of
the general public in having others comply with the law." Nvkreim, 146 Wash. 2d at
935.
No. 72809-1-1/10
Thompson believes the creation of Tract X violates the city's code and
comprehensive plan for land use, as well as Washington law. His land use
petition identifies 11 legal errors surrounding the creation and approval of Tract
X. But it does not allege any specific injury to Thompson or his property.
Thompson's sole interest is trying to enforce zoning protections in his
neighborhood. His abstract interest in having others comply with the law is not
enough to confer standing. See Nvkreim, 146 Wash. 2d at 935.
Thompson argues that this court must assume his allegations of legal
error are true and "presume" harm to adjacent property. He argues that the
proposed short plat application violates principles in the Mercer Island City Code
that promote "air, light, open space, adequate roads, sufficient area to subdivide,
consistent bulk and scale, prevention of overcrowding of land, all of which
provide attractive neighborhoods and affect the value of surrounding property."
He predicts that the "ultimate result" of this proposed short plat will be houses
that are inconsistent with the zone and neighborhood, overcrowd land, create a
negative effect on open space, air, light, comfort and aesthetics, and diminish the
value of surrounding properties like his own.
Thompson does not cite authority allowing a court to presume harm.
Granting that the creation of Tract X will increase the amount of impervious
surface area available for development on lot one, Thompson has failed to show
any "'immediate, concrete, and specific'" injury. Suguamish, 92 Wash. App. at 829,
quoting Harris, 84 Wash. App. at 231 (internal quotation marks omitted). Because
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No. 72809-1-1/11
Thompson failed to show that the creation of Tract X prejudiced him, or is likely
to, he lacked standing to bring a land use petition.
MOTION FOR SUBSTITUTION
On the Rock executed a statutory warranty deed conveying the property at
issue to GIB Development LLC on August 12, 2014, two days before appellants
filed their land use petition in superior court. The deed was recorded on August
19,2014.
On June 16, 2015, On the Rock filed a motion to substitute GIB
Development as the new owner of the property at issue. In support of the
motion, On the Rock's attorney stated that he did not become aware that the
property at issue had been conveyed to GIB Development until June 1, 2015,
after he received a letter from an attorney representing appellant Misselwitz in a
separate matter. Both limited liability companies are under the effective
management authority of the same person, Scott Gibson. Gibson's attached
affidavit stated that his tax advisors told him that the property at issue was more
appropriately held by GIB Development because he planned to develop it.
Gibson further stated that the failure to substitute GIB Development as the new
owner was purely an oversight.
Appellants opposed On the Rock's motion to substitute. On June 16,
2015, they filed a motion asking this court to vacate the trial court's order of
dismissal and remand. In June and July 2015, appellants filed additional motions
to supplement the record with further evidence supporting their request to vacate
and remand, to strike On the Rock's motion to substitute for lack of standing, to
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No. 72809-1-1/12
compel On the Rock to submit further evidence regarding why it transferred the
property at issue, and for judicial estoppel and attorney fees ifthis court vacates
and remands.
On the Rock's motion to substitute is proper under the plain language of
RAP 3.2(a): "The appellate court will substitute parties to a review when it
appears . .. that the interest of a party in the subject matter of the review has
been transferred." The property at issue has been transferred from On the Rock
to GIB Development.
On the Rock further requests that the substitution relate back to the time
the appellants' land use petition was filed. RAP 3.2 neither expressly permits nor
prevents a substitution to relate back to the time of filing. Miller v. Campbell. 164
Wash. 2d 529, 536-37, 192 P.3d 352 (2008). In Miller, the court allowed the
substitution to relate back to the time of original filing because the party opposing
substitution was not prejudiced. Miller, 164 Wash. 2d at 538. Likewise here,
appellants will not be prejudiced if GIB Development is substituted for On the
Rock. GIB Development acknowledges that it will be bound by this court's
decision on the merits. The identity of the limited liability company that holds the
property is irrelevant to the basis on which the appellants opposed the land use
decision—legal errors regarding the creation and approval of Tract X—and to the
basis on which their land use petition was denied—lack of standing.
Appellants argue that substitution or joinder is available only at the trial
court under CR 17(a) or CR 19 and that it requires consideration of inexcusable
neglect under CR 15(c). In support of this proposition, appellants cite Stella
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No. 72809-1-1/13
Sales. Inc. v. Johnson. 97Wn.App. 11, 17-20, 985 P.2d391. review denied. 139
Wash. 2d 1012 (1999). But Stella Sales addressed substitution in the trial court; it
does not discuss substitution on appeal under RAP 3.2.
We grant On the Rock's motion to substitute GIB Development. That
substitution will relate back to the time the appellants' land use petition was filed.
We deny the appellants' motion to vacate the order of dismissal. The remaining
motions filed by appellants are also denied.
Affirmed.
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WE CONCUR:
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