Posted by: Patricia Salkin | March 6, 2012

Washington Supreme Court Holds Building Permit with Misrepresentations of Material Fact Does Not Vest

The Garrisons bought a piece of waterfront property, including a single family residence.  There was a stream running across the property and a mandatory buffer zone on either side of the stream.  Louise Lauer and Derrell de Tienne were neighbors on either side.  In 2004, the Garrisons filed a building permit application seeking to build a one-family home on the property.  In the application, however, the Garrisons failed to label the stream and mandatory buffer, and mislabeled a trail on the property as an “existing drive.”  Although the county initially approved the Garrison’s application, after a site visit they discovered that the proposed building was within the buffer zone.  Thus, the county issued a cease and desist order, suspending the building permit and suggesting that the Garrisons apply for a fish and wildlife variance.  

Instead, the Garrisons challenged the cease and desist order.  After a denial of the Garrisons’ claim by a hearing examiner, they appealed to the superior court with a Land Use Petition Act (“LUPA”) petition.  Instead of pursuing the claim, however, the Garrisons reached an agreement with the town to seek a variance under the laws in effect in 2004—the county had increased the buffer zone and made acquisition of a variance more difficult as of 2005—and withdrew their petition.  Two years later, in 2007, the Garrison’s applied for a variance.  Neighbors Lauer and de Tienne actively opposed the variance and argued that the 2005, not the 2004 regulations must be applied.  The county granted the variance, applying the 2004 standard.  Lauer and de Tienne objected and filed a LUPA petition with the superior court who reversed the issuance; on appeal the court of appeals reversed the superior court.  Finally, Lauer and de Tienne appeal to the Washington Supreme Court. 

The first issue the court deals with is whether Lauer and de Tienne have standing to challenge the county’s decision.  First, the court finds that despite Garrisons’ arguments, Lauer and de Tienne are able to submit evidence beyond the scope of the administrative record to prove standing.  Since neither party had an opportunity to develop the issue of standing at the administrative stage, the court may consider evidence outside the record.  Next the court examines the conditions to standing of a non-owner of the property at issue and finds that as adjacent landowners: both Lauer and de Tienne have been injured; that that the government was required, and did, notify Lauer and di Tienne of the Garrisons’ application; that prejudice to Lauer and di Tienne could be improve; and that Lauer and di Tienne have exhausted all administrative remedies available to them.  

The second issue for the court is whether Lauer and di Tienne’s LUPA petition was timely.  The court finds that the LUPA petition is timely because it must be filed within twenty-one days of the decision being challenged and it was filed here twenty days after the decision.  Third, although the Garrisons argue equitable estoppel applies because Lauer and di Tienne failed to intervene in the Garrisons’ initial appeal of the cease and desist order, the court finds there was no statement or admission that would qualify as equitable estoppel.  Fourth, the Garrisons argue that the Futurewise decision where a plurality of Washington Supreme Court held that some laws within the jurisdiction of a Shoreline Management Act can be governed only by that act and not local laws.  The court finds that since this decision is a plurality opinion and the law was subsequently amended by the legislature, the case is not binding and the court does not consider it further. 

Finally, the court discusses the date the Garrisons’ building permit vested.  This is important, explains the court, because the applicant is entitled to the benefit of the law at the time the building permit vested.  The legislature made it clear that an application will vest when it is “fully complete.”  Here, the court finds that the Garrisons’ application was not “fully complete.”  The Garrisons omitted the stream and the required buffer and misrepresented a trail as an existing driveway.  Similarly, finds the court, the Garrisons applied for the variance after applying for the building permit, not before or contemporaneous with it, as required.  The Garrisons’ final argument that the building permit application is deemed complete if there is not a determination that it is incomplete with twenty-eight days is rejected by the court.  Being fully complete, finds the court, also requires the application to be valid.  A valid application, explains the court, would not contain false statements or knowing misrepresentations.  The court concludes that “[a] permit application that is not allowed under the regulations . . . and is issued under a knowing misrepresentation or omission of material facts confers no rights upon the applicant.  

Lauer v. Pierce County, 267 P.3d 988 (Wash. 12/15/2011) 

The opinion can be accessed at:

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