Engley Diversified challenged the determination of the Port Orchard City Council, which found that although Engley’s constriction permit applications should not have been denied, his applications did not vest and he would be required to submit building permit applications. The United States District Court, Western District of Washington reversed.
In Washington, the Land Use Protection Act governs the judicial review of local land use decisions. It provides that where a party challenges a final determination of the locality, this party has the burden of showing that at least one of six faults invalidates the local ruling. Pertinent to this case, the challenger can show that despite affording deference, “[t]he land use decision is an erroneous interpretation of the law.” In addition, the challenger can also show “[t]he land use decision is a clearly erroneous application of the law to the facts.”
Washington law also provides that once a developer files a valid and fully completed building permit application for a structure, in compliance with local law, this person has a vested right in the laws and regulations in effect at that time. The City claims Engley’s permits are not entitled to vesting because they are only construction permits and are incomplete.
During the time between Engley’s filing of the permit applications and this opinion, the City had enacted an ordinance prohibiting the construction of billboards in all zone districts. The City moved to have Engley’s appeal dismissed as moot, claiming his rights did not vest. A Hearing Examiner of the court found that Engley’s applications where for building permits and all the applications were complete before the City enacted the ordinance prohibiting billboards.
The District Court affirmed the determination of the Hearing Examiner. The court agreed with the examiner that the City failed to show how the sign and building permit processes were distinct from one another. Engley provided the City with the same materials that would have been required had Engley sought a building permit, and for four of the applications, the City even charged Engley the building permit fee. In addition, the court also found the applications where fully complete and vested under the applicable state law. Although the City claimed the applications were missing information, the court found this argument unavailing as the City failed to specifically show what was missing. As a result, the District Court found the City’s determination was erroneous and ordered the reversal thereof.
Engley Diversified v. City of Port Orchard, 2012 WL 4023333 (U.S.D.C., W.D. Wash., Sept. 12, 2012).
