Jeanne Congdon v. Island County ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JEAN CONGDON, an individual,
No. 79452-3-I
Appellant,
DIVISION ONE
v.
ISLAND COUNTY, a political subdivision
of the State of Washington; and WILLIAM UNPUBLISHED OPINION
SETTER and JANE DOE SETTER,
individually and as a marital community,
Respondents,
DAVID WECHNER and JANE DOE
WECHNER, individually and as a marital
community and in David Wechner' s
former official capacity as Director Island
County Planning and Community
Development Department; JESS
COOPER and JOHN DOE COOPER
individually and as a marital community
and in Tess Copper's former official
capacity as Assistant Planner Island
County Planning and Community
Development Department; JANET
WRIGHT and JOHN DOE WRIGHT
individually and as a marital community
and in Janet Wright's official capacity as
Assistant Planner Island County Planning
and Community Development
Department,
Defendants.
CHUN, J. — Jean Congdon sued her neighbor and Island County for
damages arising out of the County’s decision on her shoreline exemption permit.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79452-3-I/2
The trial court dismissed the lawsuit on summary judgment. Congdon appeals.
We conclude that the Land Use Petition Act (LUPA) and collateral estoppel bar
her claims, and that the statute of limitations bars some of her claims. We affirm.
BACKGROUND
In 2006, Congdon purchased a waterfront lot at Lagoon Point in
Greenbank, Whidbey Island, which was located between two other lots. The
adjacent lot to the north was a developed lot with a single family residence and
the adjacent lot to the south was a vacant lot. In 2012, William Setter purchased
the vacant lot. Congdon and Setter intended to build homes on their lots, which
were both on the end of the canal and “pie” shaped, meaning each home would
be partly visible from the other property. Both applied for shoreline exemption
(SHE) permits to determine the setback distance from the shoreline or the
“Ordinary High Water Mark” (OHWM).
Under the Island County Code in place at the time, the normal shoreline
setback was 50 feet from the OHWM. ICC 17.05.200(10)(a). Under these
regulations, if there were existing principal residences on either side of the
proposed building footprint, the setback for the proposed structure “may be
reduced by review and approval of the shoreline administrator.”
ICC 17.05.200(10)(c)(i). In these cases, the setback “may be reduced to the
average of the setbacks of the existing adjacent principal residences.”
ICC 17.05.200(10)(c)(i). If there was only one existing principal residence on
either side of the proposed building site, the setback “may be reduced (with
approval of the administrator) to the average of the setbacks for the existing
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adjacent principal residence and the applicable setback for the adjacent vacant
parcel.” ICC 17.05.200(10)(c)(ii).
Setter’s permit application requested the standard 50-foot setback.
Congdon’s application proposed a 26-foot setback. On April 30, 2014, the
County Planning Department (Department) approved Setter’s permit.
In May 2014, Congdon learned from a member of the Lagoon Point
Architectural Committee that “something was going on between Setter and the
Planning Department that would affect where she could build her home.”
Department Planner Janet Wright had previously told Congdon that the setback
criteria in her proposed plot plan was correct. When Congdon asked Wright if
anything had changed with her proposed setback, Wright confirmed that the
setback remained as she proposed. About a week later, Setter saw Congdon
placing stakes on her lot for the outline of her home within 18 feet of the bank.
When Congdon told him the Department confirmed her proposed setback and
she expected to receive her permit approval the following week, Setter became
upset, concerned about the possible negative impact that the location of her
home would have on his view. He complained in an e-mail to Department
planners and the Director of Planning.
On June 13, 2014, the Department approved Congdon’s SHE permit with
several conditions, including a 43-foot shoreline setback. Citing
ICC 17.05.200.B(10)(c)(ii), the Department determined a 43-foot setback “is the
average of the 50 foot standard shoreline setback for the undeveloped lot to the
south and the 36 foot setback of the residence to the north.”
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Congdon appealed the Department’s decision to the Island County
Superior Court under LUPA, RCW 36.70C. She claimed two Department
planners, first Jason Johnson and then Wright, verbally approved her 26-foot
setback, but after Setter complained to the County, the Director of Planning,
David Wechner, “became involved in the setback decision” and she “was then
informed that the new setback would be 50 feet, which was shown as a string
line on a County-edited drawing of [her] submitted plot plan.” She further claimed
“substantial evidence in the record” showed the County should have approved
her application for a 28-foot1 setback without any changes and that “the County
failed to properly review and approve a decision [on her setback application].”
Finally, she claimed the decision violated her constitutional rights to due process
because the County “failed to afford [her] her opportunity for an open record
administrative appeal hearing” and “failed to adequately review and issue a
decision in a fair and equitable manner and in a manner that treated the
application equally to other shoreline determinations made within Island County
generally and the more immediate area.” She asked the court to reverse the
decision or remand for an open record hearing before the County’s Hearing
Examiner, for permission to amend the pleading to conform to the proof, and
“other and further relief as may be just and equitable.”
In February 2016, the superior court granted the County’s motion for
summary judgment, affirming the County’s decision and dismissing Congdon’s
1
Congdon’s LUPA petition states her requested setback was for 28 feet though
her complaint for damages states that it was for 26 feet.
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LUPA petition with prejudice. The court found the County correctly interpreted
and applied ICC 17.05.200(B)(c)(10)(ii) to Congdon’s shoreline exemption permit
application. The court further found that testimonial evidence was unnecessary
because code interpretation is a question of law and “because the County’s plain
language analysis is correct, any prior informal interpretation to the contrary
would not bind the County to such an incorrect reading or application of the
Code.” Congdon did not appeal this order.
In early 2016, Island County amended its Shoreline Master Program and
included a provision that changed the minimum setbacks to 40 feet.
ICC 17.05A.090(D)(3), Table 3 (setbacks for SRCC or “Shoreline Residential-
Canal Community”). The amendments also changed the formula for averaging
setbacks of existing residences. ICC 17.05A.090(F)(1), (2).
In May 2016, Congdon applied for a new SHE permit seeking a 37-foot
setback under the new rules.2 County staff confirmed to her the accuracy of her
submission and proceeded to process her Shoreline Exemption request. During
this process, County staff concluded that both Congdon and staff had misapplied
the setback averaging provisions. The County notified Congdon of the new
interpretation and issued a formal decision granting her shoreline exemption with
a 38-foot shoreline setback.
2
Congdon’s May 2016 permit application was not designated on appeal. The
facts relating to this application are taken from the Island County Hearing Examiner’s
findings on Congdon’s appeal of the application decision. Because she did not appeal
the Hearing Examiner’s decision, we accept the findings of fact as verities.
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Congdon appealed the County’s decision to the Island County Hearing
Examiner. The parties presented evidence in a public hearing before the
Hearing Examiner on October 20, 2016. Applying ICC 17.05A.090(F)(2), the
Hearing Examiner concluded that the County properly reduced the setback to 38
feet and denied the appeal. The Hearing Examiner rejected Congdon’s
interpretation of subsection (2) which “requires reading into the Ordinance
additional language not present, and violates a standard rule of statutory
construction.” Congdon did not appeal the Hearing Examiner’s decision.3
In 2018, representing herself, Congdon filed a complaint for damages
against the County, Department staff, and Setter. She claimed the County’s
conduct during her permit approval process deprived her of her constitutional
right to the use and enjoyment of her property under the federal and state
constitutions, deprived her of a property interest without notice and opportunity to
be heard under the federal and state constitutions, and violated the right to equal
protection under the federal and state constitutions. She further claimed the
County created a “view protection” right for Setter, retaliated against her when
she complained about her permit in violation of her First Amendment rights,
negligently delayed processing her application, and intentionally misrepresented
to her that her setback had not changed despite an agreement with Setter to
increase his setback to her detriment.
3
Neither Congdon’s “Comprehensive Statement of Appeal” nor the record before
the Hearing Examiner have been designated on appeal. Accordingly, our review of that
record is limited to the Hearing Examiner’s findings and decision.
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As to Setter, Congdon claimed he made material misrepresentations to
the Department and conspired with the Department to conceal them from her.
Finally, she claimed both the County and Setter caused her severe emotional
distress. Congdon claimed she was unaware of the collusion between Setter
and the Department until she made a public records request in 2017 and
obtained e-mails exchanged in 2014 containing Setter’s complaints and the
County’s response. She sought “compensatory, emotional and punitive
damages in an amount not less than $300,000.”
Both Setter and the County moved for summary judgment, arguing the
complaint was barred by collateral estoppel, LUPA preemption, and the statute of
limitations and asserted other substantive defenses. The trial court granted
summary judgment and dismissed the complaint with prejudice.
Congdon appeals.
ANALYSIS
We review de novo a trial court’s order on summary judgment. Spokane
Research & Def. Fund v. City of Spokane, 155 Wn.2d 89, 106, 117 P.3d 1117(2005). In reviewing a summary judgment order, we perform the same inquiry as
the trial court. Sheikh v Choe, 156 Wn.2d 441, 447, 128 P.3d 574 (2006). “We
consider all facts submitted and all reasonable inferences from the facts in the
light most favorable to the nonmoving party.” Rublee v. Carrier Corp., 192 Wn.2d
190, 199, 428 P.3d 1207 (2018). “Summary judgment is proper when the record
demonstrates there is no genuine issue of material fact and the moving party is
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No. 79452-3-I/8
entitled to judgment as a matter of law.” Munich v. Skagit Emergency Commc’ns
Ctr., 175 Wn.2d 871, 877, 288 P3d 328 (2012).
LUPA preemption
Congdon contends LUPA does not preempt her complaint because the
statute does not apply to claims for monetary damages or compensation. We
disagree.
LUPA governs the process for judicial review of land use decisions. A
“land use decision” is “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,” and includes final determinations on “[a]n application
for a project permit or other governmental approval required by law before real
property may be improved, developed, modified, sold, transferred, or used,” and
“[a]n 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. . . .”
RCW 36.70C.020(2)(a), (b). An unappealed land use decision “becomes final
and binding and is deemed valid and lawful.” Mercer Island Citizens for Fair
Process v. Tent City 4, 156 Wn. App. 393, 399, 232 P.3d 1163 (2010).
Accordingly, “even illegal decisions must be challenged in a timely, appropriate
manner.” Mercer Island Citizens, 156 Wn. App. at 399.
RCW 36.70C.030 provides LUPA “shall be the exclusive means of judicial
review of land use decisions,” but lists exceptions where it does not apply,
including:
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Claims provided by any law for monetary damages or compensation.
If one or more claims for damages or compensation are set forth in
the same complaint with a land use petition brought under this
chapter, the claims are not subject to the procedures and standards,
including deadlines, provided in this chapter for review of the petition.
The judge who hears the land use petition may, if appropriate,
preside at a trial for damages or compensation.
RCW 36.70C.030(1)(c).
Generally, this section applies to exclude from LUPA claims that seek
compensation rather than a reversal or modification of a land use decision.
Lakey v. Puget Sound Energy, 176 Wn.2d 909, 928, 296 P.3d 860 (2013). But
where “plaintiffs needed to show the illegality of part of the permit to succeed on
their claims,” this amounts to “an attack on a land use decision time barred by
LUPA.” Lakey, 176 Wn.2d at 926 n.11 (citing James v. County of Kitsap, 154
Wn.2d 574, 583 -586, 115 P.3d 286 (2005)); see also Asche v. Bloomquist, 132
Wn. App. 784, 801, 133 P.3d 475 (2006) (LUPA precludes public nuisance claim
that depended on a finding that County improperly applied zoning code to
specific property); Woods View II, LLC v. Kitsap County, 188 Wn. App. 1, 24-25,
352 P.3d 807 (2015) (“a damage claim may still be controlled by LUPA if it is
dependent on ‘an interpretative decision regarding the application of a zoning
ordinance.’”). Accordingly, “claims for damages based on a LUPA claim must be
dismissed if the LUPA claim fails.” Mercer Island Citizens, 156 Wn. App. at 395-
96, 405 (dismissing claims for damages under 42 U.S.C. §1983 that depended
on the validity of permit); see also Shaw v. City of Des Moines, 109 Wn. App.
896, 901, 37 P.3d 1255 (2002) (“If the petitioner loses the LUPA appeal, the
damages case is moot and the matter is over.”).
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Here, the complaint for damages is based on the County’s “conduct
throughout Congdon’s SHE Permit application process.” The complaint also
asserts the County “engaged in unlawful procedure in contravention of
RCW 36.70C.130(1)(a),” and alleges:
By altering the appeals statement in Congdon’s SHE 074/14, the
Department Defendants sought to circumvent the administrative
appeal that would have been available to Congdon. The Department
Defendants engaged in unlawful procedure in contravention of RCW
36.70C.130(1)(a), when they changed Congdon’s application without
her knowledge or authorization, improperly revised her setback and
failed to follow prescribed procedures under Island County Code.
There is no Code provision that authorizes Department Staff to
change a SHE Permit application once submitted.
Indeed, in her LUPA petition she challenged the same conduct as a land use
decision claiming “[t]hat Decision erroneously relied on a site plan which was not
submitted by, nor authorized by Petitioner,” and “[t]he County failed to properly
review and approve a decision based on the applied for 28 foot stringline
setback.” See RCW 36.70C.130(1)(a) (a court may grant relief under LUPA
where “[t]he 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.”). Specifically, her LUPA petition alleged:
Instead of issuing a decision on Petitioner’s application, the County
materially changed the application and issued an approval of a
shoreline decision not based on Petitioner's applied for plans and
project. In doing so, the County denied Petitioner the opportunity for
administrative appeal. Further, the County both failed to properly
evaluate and issue a decision on the actual application. As well, the
County’s decision was materially and substantively unsupported by
applicable facts and shoreline, critical area, and environmental laws
and regulations.
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No. 79452-3-I/11
Congdon’s due process and equal protection claims are also based on the
County’s “conduct throughout Congdon’s SHE Permit application process” and
allege the County’s conduct violated her constitutional rights. Indeed she alleged
these same constitutional violations in her LUPA petition:
The Land Use Decision . . . violates Petitioner’s constitutional rights
to procedural due process because the County failed to afford
Petitioner her opportunity for an open record administrative appeal
hearing. . . .
...
The Land Use Decision . . . violates Petitioner’s constitutional rights
to procedural due process because the County failed to adequately
review and issue a decision in a fair and equitable manner and in a
matter that treated the application equally to other shoreline
determinations made within Island County generally and the more
immediate area.
See RCW 36.70C.130(1)(f) (a court may grant relief under the statute if “the land
use decision violates the constitutional rights of the party seeking relief.”). Her
First Amendment claim likewise alleges the County acted improperly in
processing her permit, claiming the County altered the appeal statement in her
permit and ignored her complaints to prevent her from challenging its decision.
And as she apparently acknowledges in her complaint, LUPA was the proper
avenue to assert this claim:
After receiving her SHE permit, Congdon contacted Island County
Commissioners Helen Price Johnson, Aubrey Vaughan and Jill
Johnson, to voice her concerns about the Department’s drastic
alteration of her plot plan, the 43 foot setback requirement on her
property, and how she was singled out and treated differently from
her neighbor - but finding no Commissioner willing to investigate her
concerns, Congdon was left with no other option than to hire an
attorney and file a costly Washington Land Use Petition Act (LUPA).
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The other tort claims are also preempted by LUPA because they depend
on a determination that the County acted improperly in granting her permits. See
Asche, 132 Wn. App. at 800; Woods View II, 188 Wn. App. at 24-25. The
complaint alleges that Setter misrepresented the applicable distances to be used
in the setback calculation, resulting in a permit that improperly put her setback
farther from the shoreline, thereby depriving of her use and enjoyment of her
property for which she claims damages. The complaint also alleges that the
County misrepresented that her setback had not changed during the permit
review process and concealed from her the Department’s agreement with Setter
“to increase Setter’s setback to Congdon’s detriment.” But again, the only
“detriment” Congdon identifies is the County’s approval of a setback that was
less favorable to her, a decision upheld in the LUPA action. The concert of action
and emotional distress claims seek damages for the same conduct. But the final
orders in Congdon’s LUPA action and her appeal to the Hearing Examiner
determined that the setbacks were properly calculated under the applicable
regulations and dismissed the LUPA claims. Accordingly, since her LUPA claim
failed, any “damages based on [that] LUPA claim must be dismissed.” Mercer
Island Citizens, 145 Wn. App. at 405.
The negligent delay claim likewise depends on a finding that the County
acted improperly in approving the permit. The complaint alleges the County
delayed Congdon’s SHE permit approval in order to allow Setter to build farther
landward to accommodate his large home and improve his view, but the only
damages she claims is that she received a setback that unfairly favored Setter.
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Woods View II, cited by Congdon, is inapposite. There, the claims for damages
did not challenge the permit decision itself but alleged the delay in issuing the
permit caused financial damage to the plaintiff developer (lots sold for less,
business loan went into default, property went into foreclosure, developer went
bankrupt). Woods View II, 188 Wn. App. at 17. Thus, the court held LUPA did
not bar those claims. Woods View II, 188 Wn, App. at 25. But here, all of the
damages claimed are a result of the permitting decision itself.
Accordingly, because all of Congdon’s claims challenge the County’s
actions in its approval of her permits, LUPA preempts them. And because she
failed to appeal the court’s order dismissing the LUPA petition on summary
judgment and the Hearing Examiner’s decision upholding the 2016 permit, they
remain final, binding orders. Consequently, any claims for damages based on
those actions must be dismissed. Mercer Island Citizens, 145 Wn. App. at 405.
Collateral Estoppel
Also, collateral estoppel bars Congdon’s claims for damages. We review
de novo whether collateral estoppel bars relitigation of an issue. Christensen v.
Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 305, 96 P.3d 957 (2004).
Collateral estoppel is “a means of preventing the endless relitigation of issues
already actually litigated by the parties and decided by a competent tribunal.”
Hadley v. Maxwell, 144 Wn.2d 306, 311, 27 P.3d 600 (2001) (citations omitted).
“Collateral estoppel is not a technical defense to prevent a fair and full hearing on
the merits of the issues to be tried,” rather, the focus is on “whether the parties to
the earlier proceeding had a full and fair hearing on the issue.” Hadley, 144
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Wn.2d at 311. Collateral estoppel bars subsequent claims when all of the
following are established:
(1) identical issues; (2) a final judgment on the merits; (3) the party against
whom the plea is asserted must have been a party to or in privity with a
party to the prior adjudication; and (4) application of the doctrine must not
work an injustice on the party against whom the doctrine is to be applied.
Hadley, 144 Wn.2d at 311 (citation omitted).
Here, all the elements of collateral estoppel are established.4 Congdon
raised issues in her LUPA petition identical to those raised in her complaint for
damages, which were actually litigated in the LUPA proceeding. As discussed
above, the LUPA petition challenged the County’s approval process of her
permit, alleging the County acted improperly by changing Congdon’s 2014
application and approving a permit that was not based on her submitted plans,
and making a decision that was not based on the applicable facts and law. The
court found that the County properly applied the setback averaging provision of
the County code and rejected her argument that the County was bound by any
preliminary determinations of the setback distance. In her appeal to the Hearing
Examiner, she challenged the County’s application of the new setback
regulations to her 2016 permit. The Hearing Examiner concluded the County
properly reduced the setback.
Also, as discussed above, the complaint alleges damages caused by this
same conduct. The only damages Congdon identifies relate to the deprivation of
4
There is no dispute that element (3) is established; the party against whom
collateral estoppel is asserted (Congdon) was a party to the prior adjudication.
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her use and enjoyment of her property as a result of the County’s improper
setback determination.
While Congdon notes that her complaint asserts new tort claims and that
the County gave Setter an unlawful “view right,” collateral estoppel still applies to
bar her claims. 5 As our courts have acknowledged: “[W]hen collateral estoppel
is asserted, the second claim is always different from the first. The former claim
and the new claim can be expected to raise at least some different ultimate
issues. What matters is whether facts established in the first proceeding
foreclose the second claim.” Scholz v. Washington State Patrol, 3 Wn. App. 2d
584, 596-97, 416 P.3d 1261 (2018) (internal citation omitted). Here, Congdon’s
prior LUPA action fully and fairly resolved the issue of how close to the water she
could build her home under the Island County Code; the superior court and the
Hearing Examiner determined that the County’s approval of her setback was
proper under the applicable regulations. All of Congdon’s subsequent claims
allege damages caused by this decision, i.e., that this setback determination
prevented her from building closer to the water and enhancing her property
value, thereby depriving her of her use and enjoyment of her property. The
claims against Setter likewise seek damages resulting from the setback decision.
5
The “new” claim that the County improperly created a “view right” for Setter
alleges the same misconduct alleged in the LUPA petition, i.e., that the County gave
Setter preferential treatment.
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Since the superior court and Hearing Examiner already determined that
this setback was the legally approved distance from which she could build, her
claims for damages caused by this decision fail.
Finally, Congdon fails to show applying collateral estoppel in this context
results in an injustice. To determine whether an injustice will result, we consider
whether “the party against whom the estoppel is asserted [had] interests at stake
that would call for a full litigational effort.” Hadley, 144 Wn.2d at 312 (citations
omitted). If the party did not have sufficient motivation to fully and vigorously
litigate the issue during the first proceeding, applying collateral estoppel to
prevent that party from litigating that issue in the subsequent action works an
injustice. Weaver v. City of Everett, 4 Wn. App. 2d 303, 318-319, 421 P.3d 1013(2018). Here, Congdon was fully motivated to litigate and vigorously did so in
the first proceedings. Indeed, she acknowledges in her complaint that she “was
left with no other option than to hire an attorney and file a costly Washington
Land Use Petition Act (LUPA).” She also litigated the County’s approval of the
second permit even after the setback regulations were amended in her favor and
the County approved a setback that was only one foot away from what she
requested.
Statute of Limitations
Finally, the statute of limitations bars claims arising out of the 2014 permit
decision. See RCW 4.16.080(2) (three-year statute of limitations). The
discovery rule does not apply here to toll the limitations period as Congdon
claims. See Green v. A.P.C., 136 Wn.2d 87, 95, 960 P.2d 912 (1998) (under
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Washington’s discovery rule, cause of action does not accrue until a party knew
or should have known the essential elements of the action). Congdon alleged in
her LUPA petition filed in July 2014 that Setter improperly influenced the County
and the County improperly changed her setback. She makes these same claims
in e-mails she exchanged with the County and Setter in 2014. Thus, she had
sufficient knowledge of the essential elements of her damages claim long before
the limitations period ran. See Green, 136 Wn.2d at 95 (cause of action accrues
if party “should have discovered salient facts regarding a claim”); Busenius v.
Horan, 53 Wn. App. 662, 667, 769 P.2d 869 (1989) (“Notice that would lead a
diligent party to further inquiry is notice of everything to which such inquiry would
lead.”). Moreover, she does not explain why she waited until 2017 to file her
public records request when she had sufficient reason to do so in 2014.
We affirm.
WE CONCUR:
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