IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
KHUSHDEV MANGAT and No. 67712-8-l/Linked w/68739-5-1
HARBHAJAN MANGAT, and the marital
Community comprised thereof, DIVISION ONE
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SNOHOMISH COUNTY, a political PUBLISHED OPINION
Subdivision of the State of Washington V? "J? CO
LUIGI GALLO, a single man, en ~lc"
JOHANNES DANKERS and MARTHA
DANKERS, and the marital community
comprised thereof;
Respondents. FILED: August 26, 2013
Spearman, A.C.J. — Nothing in RCW 58.17.033 or chapter 30.70 Snohomish
County Code grants those who have filed permit applications to develop real property a
vested right to "process" the application independent of an ownership interest in the
land. As such, we reject Khushdev and Harbhajan Mangat's argument that the hearing
examiner and the trial court decisions, which allowed property owners Luigi Gallo and
Johannes and Martha Dankers to move forward with a development application the
Mangats originally filed, amounted to a taking of the Mangat's private property. Affirmed.
FACTS
This appeal arises out of the Mangats failed attempt to purchase and develop
two contiguous pieces of property, one owned by the Dankers and the other owned by
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Gallo. The purchase and sale agreements contained identical terms: they allowed the
Mangats to begin developing the land by seeking a plat application to subdivide the
properties, but in the event the Mangats defaulted on their attempt to purchase, they
were required to turn over all materials related to the plat application to the Dankers and
Gallo.
The Mangats were unable to secure financing and defaulted. The Dankers and
Gallo continued the plat application process started by the Mangats. The Mangats sued
the Dankers, Gallo, and Snohomish County, arguing that the substitution of the Dankers
and Gallo on the application amounted to an unconstitutional taking of their property
and that it violated their right to substantive due process. The complaint sought
declaratory relief and injunctive relief prohibiting Snohomish County from further
consideration of the application.
Shortly after filing suit, the Mangats obtained an ex-parte temporary restraining
order (TRO) from a court commissioner restraining the hearing examiner from further
action on the plat application. The Dankers and Gallo moved to quash the TRO, and the
parties entered an agreed order quashing it. The hearing examiner rescheduled the
hearing for May 11, 2011. The Mangats moved for a preliminary injunction, staying
proceedings on the plat application. After a hearing on May 3, 2011, the motion for a
preliminary injunction was denied.
On May 11, the hearing examiner held a hearing on the plat application. On May
17, the hearing examiner entered a decision granting approval of the Dankers' and
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Gallo's plat application. The Mangats appealed the hearing examiner's decision to the
Snohomish County Council. The Dankers and Gallo moved for dismissal, and the
Council granted dismissal on June 15, 2011.
On July 5, 2011, the Mangats filed a second lawsuit, a Land Use Petition Act
(LUPA) appeal seeking review of decisions of the Council and the hearing examiner.
The petition also sought writs of mandamus and prohibition against the County, as well
as damages against the County under chapter 64.40 RCW. Id.1
In July 2011, the County, the Dankers, and Gallo moved for summary judgment
dismissal of all claims raised in the first lawsuit. The Mangats cross-moved for summary
judgment. On August 17, 2011, Judge Kurtz granted the motions for summary
judgment, denied the Mangats' cross-motion, and dismissed the case. The Mangats
appeal of that order is the subject of this opinion.2
DISCUSSION
Standard of Review. "In reviewing a grant of summary judgment, we engage in
the same inquiry as the trial court." Devenv v. Hadaller, 139 Wn. App. 605, 616, 161
P.3d 1059 (2007) (citing Wilson v. Steinbach. 98 Wn.2d 434, 437, 656 P.2d 1030
1The Mangats apparently had filed another lawsuit against Dankers and Gallo, claiming unjust
enrichment. They voluntarily dismissed that suit, however, and it is not at issue here.
2In September 2011, the County moved for partial summary judgment, seeking dismissal ofthe
Mangats' LUPA petition and the claims for writs of mandamus and prohibition in the second lawsuit.
Dankers and Gallo joined the motion. On October 19, 2011, Judge Farris dismissed the Mangats' LUPA
petition and the claims for writs of mandamus and prohibition. On April 10, 2012, Judge Bowden
dismissed the Mangats' remaining claim for damages against the County under ch. 64.40 RCW (for
untimely processing of a permit application).The Mangats' appeal of those two orders is linked with this
appeal under No. 68739-5-I.
No. 67712-8-l/Linked w/68739-5-1/4
(1982)). "A summary judgment is appropriate 'if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.'" ]d. (citing CR 56(c) and quoting Marincovich v.
Tarabochia. 114 Wn.2d 271, 274, 787 P.2d 562 (1990)). '"We review the trial court's
conclusions of law de novo, . . .'" Id. (quoting Bingham v. Lechner, 111 Wn. App. 118,
127, 45 P.3d 562 (2002)), "but we may affirm the trial court 'on any basis the record
supports.'" ]d. (quoting Graff v. Allstate Ins. Co.. 113 Wn. App. 799, 802, 54 P.3d 1266
(2002)).
In their complaint, the Mangats sought declaratory and injunctive relief under two
related theories: (1) permitting the Dankers and Gallo to continue forward with the plat
application they originally started amounted to an unconstitutional taking of their
property; and (2) permitting the Dankers and Gallo to continue forward with the plat
application they originally started violated their right to substantive due process.
The Mangats make three main arguments on appeal: (1) RCW 58.17.033(1) and
Snohomish County Code (SCC), ch. 30.70 grant those who have filed permit
applications to develop real property the right to process the application; (2) any rights
provided by development permits do not attach to the land until the permit is actually
approved, therefore the right to process a development permit application "cannot be
enjoyed" by an owner who is not an applicant; and (3) permitting the Dankers and Gallo
to continue forward with the plat application the Mangats originally started, amounted to
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an unconstitutional taking of the Mangats' property. We reject these arguments and
affirm the trial court.
Applicant's alleged right to process development application. The Mangats argue
RCW 58.17.033(1) grants those who have filed permit applications to develop real
property the exclusive right to process the application. The statute reads as follows:
A proposed division of land, as defined in RCW 58.17.020, shall be
considered under the subdivision or short subdivision ordinance, and
zoning or other land use control ordinances, in effect on the land at the
time a fully completed application for preliminary plat approval of the
subdivision, or short plat approval of the short subdivision, has been
submitted to the appropriate county, city, or town official.
The Mangats contend the statute is ambiguous because "the party who benefits from
the rights in [the statute] is not defined,. . ." See Br. of Appellants at 18. Based on this
alleged ambiguity, the Mangats argue that we must resort to statutory interpretation to
resolve the issue. The Mangats then argue that in applying the rules of statutory
interpretation, it is apparent that the legislature's intent was to provide only to permit
applicants the right to process the application, to the exclusion of other parties who may
have an interest in the land.
We disagree that the statute is ambiguous and decline the Mangats' invitation to
add to RCW 58.17.033(1) a provision providing that any rights associated with the
application attach, upon filing, to a particular person or entity. The statute's plain
language provides that an application to divide land is to be considered under the
zoning ordinances in effect at the time of the application. We will not "insert words into a
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statute where the language taken as a whole, is clear and unambiguous." State v.
Watson. 146 Wn.2d 947, 955, 53 P.3d 1 (2002).3
Likewise, nothing in ch. 30.70 SCC states that those who have filed permit
applications to develop real property have some kind of ownership interest in the
application. Although the Mangats are correct that the chapter repeatedly uses the word
"applicant," that is hardly surprising given one of the purposes of the chapter is "to
establish procedures for processing project permit applications[.]" SCC 30.70.010(1).
Given the Mangats cite no authority in support of their argument, we reject it.
Moreover, as the respondents correctly point out, our courts have consistently
held that zoning and permit rights run with the land, not with the person applying for the
permits. Indeed, in Clark v. Sunset Hills Memorial Park, 45 Wn.2d 180, 273 P.2d 645
(1954), our Supreme Court explicitly recognized that land use permit rights run with the
land, and are not personal to the person who obtained the permit. In that case, Overlake
3Even if judicial construction ofthe statute was necessary, we would reach the same result.
When interpreting a statute "[t]he court must give effect to legislative intent determined 'within the context
of the entire statute."' Whatcom County v. Citv of Bellinaham. 128 Wn.2d 537, 546, 909 P.2d 1303 (1996).
(quoting State v. Elgin. 118 Wn.2d 551, 555, 825 P.2d 314 (1992)). When RCW 58.17.033(1) is read in
context with other portions of the chapter, it is clear the Legislature did not intend to grant those who file
permit applications some kind of ownership interest in the application, independent of the land or its
owners:
Every final plat or short plat of a subdivision or short subdivision filed for record
must contain a ... statement that the subdivision or short subdivision has been
made with the free consent and in accordance with the desires of the owner or
owners.
Said certificate or instrument of dedication shall be signed and acknowledged
before a notary public by all parties having any ownership interest in the lands
subdivided and recorded as part of the final plat.
RCW 58.17.165 (emphasis added).
No. 67712-8-l/Linked w/68739-5-l/7
Memorial Cemetery obtained a permit allowing its property to be used for a cemetery.
Clark, 45 Wn.2d at 183. Overlake began preparing the land to be used as a cemetery,
and filed a plat and dedication of the property as a cemetery. ]d. Overlake became
insolvent, however, and attempted to sell the property. After a title company refused to
insure the title as free from encumbrances (because of the dedication of the land as a
cemetery), Overlake started proceedings to vacate the plat and dedication, jd. After
vacating the plat, Overlake sold and conveyed the property to Modern Home Builders.
"The conveyance included the sixty-six acres zoned, R-3 Residential, with permit for a
cemetery." jd. Modern Home Builders, in turn, conveyed five acres of the property to
individuals who began operating a cemetery, Sunset Hills Memorial Park, on the five
acres. ]d.
Several people who owned property in the vicinity sued to enjoin operation of the
cemetery. Among other things, they argued that establishment of the cemetery was
unlawful because no permit was issued specifically to Sunset Hills. The supreme court
rejected this argument holding that "the term 'permit,' when used in connection with
zoning, is merely a matter of zoning terminology, a sub-classification or refinement of
land-use classification, rather than a personal privilege or license." Id. at 189. The court
went on to hold:
The exercise of zoning powers by county planning commissions and
boards of county commissioners involves more than the granting of
purely personal licenses or privileges . . .
No. 67712-8-l/Linked w/68739-5-l/8
These powers do not contemplate the restriction or authorization
of land use on the basis of ownership by particular persons.
jd. at 189-90). We reject the Mangats' arguments on this issue.
The Mangats next contend that any rights provided by a development permit do
not attach to the land until the permit is actually approved.4 From this premise, the
Mangats argue there is a right of "processing of the application" that "cannot be
enjoyed" by an owner who is not an applicant. We disagree. The Mangats argue that
the subdivision process is not an in rem proceeding until there is a preliminary plat
approval. But as the Dankers and Gallo point out, this would mean that "the vested
rights of a subdivision application float as personal rights of the applicant to be assigned
and governed by the applicant's whim until the moment of preliminary approval of the
subdivision, when they then attach to the real property." Response Brief of Dankers at
25. The Mangats have cited no authority for this novel legal theory and we decline to
adopt it.
The Mangats also argue that Washington's vested rights doctrine protects only
right of the developer-applicant before a permit is granted. But their reliance on Hull v.
Hunt, 53 Wn.2d 125, 331 P.2d 856 (1958) in support of that proposition is misplaced.
The central holding in Hull was that, unlike what was then the majority rule regarding
vested rights, Washington courts measure when rights are vested by the date of the
permit application. HuH, 53 Wn.2d at 130. Although the court rejected the City of
4The Mangats do notciteto any authority which explicitly supports this premise. Instead, they
provide a litany of citations to, among other things, authority defining the meaning of in rem jurisdiction;
case law where the court held a conditional use permit ran with the land; case law where the court held a
construction permit ran with the land; case law defining when a covenant runs with the land; and multiple
cases holding that personal contracts do not run with the land.
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No. 67712-8-l/Linked w/68739-5-1/9
Seattle's attempt to argue only an owner or agent of the owner could apply for a
development permit, the court did not hold that an applicant has some kind of ownership
interest in the application. Indeed, the court stated that for such applicants "there will
generally be a good faith expectation of acquiring title or possession for the purposes of
building[.]" ]d. In sum, we reject the Mangats arguments on this issue.
Alleged unconstitutional taking. The Mangats next argue that the County's
decision to permit the Dankers and Gallo to continue forward with the plat application
amounted to an unconstitutional taking of the Mangats' property. Under our state
constitution, "No private property shall be taken or damaged for public or private use
without just compensation having been first made, or paid into court for the owner. . . ."
Wash. Const., art. I, § 16. The threshold question that must be answered here is
whether the Mangats had any property interest in the plat application. We hold they did
not.
Here, whatever interest the Mangats had in the Dankers' and Gallo's properties
was extinguished when they defaulted on the purchase and sale agreements. It is
undisputed that after an extension of the closing date required by the purchase and sale
agreements, the Mangats were to complete the purchase by December 16, 2009. It is
also undisputed that the purchase and sale agreements "expired" without the Mangats
purchasing the property after their lender declined to advance them a development
loan. It is further undisputed that after the Mangats failed to complete the purchase, the
terms of the agreement required them give the Dankers and Gallo all documents related
No. 67712-8-l/Linked w/68739-5-1/10
to the subdivision of the property, and permitted Dankers and Gallo to proceed with
obtaining approval of the plat application.
In other words, as of December 16, 2009, the Mangats had no interest,
prospective or otherwise, in the Dankers' or Gallo's properties. As the trial court
explained when it denied the Mangats' motion for a preliminary injunction, there was
nothing left for the Mangats to own that could be subject to a taking:
6. The filing of the subdivision application by plaintiffs with
Snohomish County was merely a request to develop the subject
property. While the filing of an application vests certain
developmental rights as they relate to the subject property, there can
be no ownership interest in the application itself independent of the
real property to which it pertains. Any vested rights created by the
filing of such an application belong to the landowner who has the
legal right to develop the property.
8. When they defaulted under the contract, the plaintiffs lost the right
to purchase the property and were required to turn over to the
Dankers and Gallo the maps, drawings, reports and other work
product related to the subdivision of the land. There is nothing left for
them to own.
Clerk's Papers (CP) at 560-63 (ruling denying motion for preliminary injunction). In
short, the trial court did not err in granting summary judgment on this issue.
County's authority regarding the plat application. The Mangats make two
additional arguments: (1) the County had no authority to "revive" their application
because it had expired; and (2) the County had no authority to "backdate" the plat
application. These arguments, however, were never made to the trial court and are
instead being raised for the first time on appeal. As such, we decline to consider them.
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No. 67712-8-1/11
RAP 2.5(a) (appellate court may "refuse to review any claim of error which was not
raised in the trial court").
Affirmed.
WE CONCUR:
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