Chelan County v. Nykreim

Alexander, C.J.

(dissenting) — The majority concludes that the challenge of Chelan County (County) and the intervening parties (Neighbors) to Michael and Laurie Nykreim, Rick and Vickie Whitney, and William and Jane Kelly’s (Nykreim) boundary line adjustment (BLA) is time-barred because it was not filed within the prescribed 21 days for filing petitions for judicial review of land use decisions under the Land Use Petition Act (LUPA), chapter 36.70C RCW. In reaching that conclusion, the majority holds that, under LUPA, County had standing to challenge the validity of its own BLA decision. I disagree with that *941determination because County is not, in my view, a person “aggrieved or adversely affected” by its own land use decision. RCW 36.70C.060(2). That being the case, I fail to see how LUPA and its 21-day time bar apply to this action. I would, therefore, affirm the decision of the Court of Appeals. Because the majority does otherwise, I dissent.

I

The essential facts are undisputed. In July 1997, Nykreim purchased as tenants in common approximately 40 acres of land near Leavenworth. The northwest corner of this property is traversed at one location by Icicle Road and at another location by Icicle Creek. Although the deed to the property described the property as a single parcel, Nykreim applied to County to adjust the boundaries of three purported “parcels” within the property. A map accompanying Nykreim’s application showed three existing, irregular parcels denominated: “Old Parcel C” located at the northwest comer of the property and covering land north of Icicle Road; “Old Parcel B” spanning the portion of land between Icicle Road and Icicle Creek; and “Old Parcel A” describing the remainder of the property.148 Clerk’s Papers (CP) at 393. Nykreim sought to create “new parcels A, B, and C” consisting of three rectangular lots with parallel boundaries.149

In October 1997, the director of County’s Planning Department, John Harrington, approved Nykreim’s BLA application by signing a “certificate of exemption,” which exempted the BLA from Chelan County Subdivision Resolution requirements.150 CP at 243-46. Harrington based his *942approval of Nykreim’s application on his interpretation of County’s requirement that no new lots be created as a result of the BLA.151 Because it appeared from the application that no new lots were being created, the certificate was issued without the benefit of any public notice or hearing.152 In fact, Harrington testified that he believed the adjustment was lawful because the property already contained three lots due to the location of the road and creek. Notices of title to the three new lots were filed the same day as the certificate of exemption.

Seven months later, in May 1998, Neighbors first learned of the BLA when Nykreim applied for a conditional use permit to construct three new homes—one on each “new” parcel of land. Neighbors appeared at a Design Review Committee hearing in July 1998 to voice their objections to the new boundary lines and raise concerns about the validity of the BLA. Shortly thereafter, one of the neighbors, an attorney, wrote a letter to Harrington in which he claimed that the BLA was illegal. The County Planning Department responded to the letter by indefinitely postponing the design review hearing. On August 25, 1998, the Planning Department officially withdrew Nykreim’s certificate of exemption.

Approximately three months after revoking Nykreim’s BLA, County filed an action for declaratory judgment asserting that Nykreim’s BLA and the notices of title were invalid. Neighbors sought to intervene in support of County *943and the trial court permitted them to do so. The trial court then granted County’s summary judgment motion, holding that the BLA was null and void. The Court of Appeals affirmed the trial court’s decision, rejecting Nykreim’s affirmative defense, raised for the first time on appeal, that Chelan County was time-barred from revoking its BLA decision under LUPA.153 We, thereafter, granted Nykreim’s petition for review.

II

In reaching its conclusion that County’s challenge to Nykreim’s BLA is time-barred, the majority holds that LUPA applies to ministerial land use decisions of government planning agencies. Although I question the correctness of that holding for the reason that a person aggrieved by a ministerial decision will likely not have notice or actual knowledge of the decision within the time for appeal, I do not believe that it is necessary for us to decide here whether LUPA applies to ministerial land use decisions. I reach that conclusion because County cannot be viewed as a party “aggrieved or adversely affected” by its own land use decision. See RCW 36.70C.060.154 It, therefore, lacked standing under LUPA and, thus, was not subject to the provision in LUPA requiring “aggrieved or adversely af*944fected” parties to challenge land use decisions within 21 days.

Although the majority observes that an “aggrieved or adversely affected” person “in the context of land use decisions [generally] refer [s] to parties other than government entities” (majority at 935), it concludes that County was sufficiently prejudiced by its own BLA decision so that the “aggrieved or adversely affected” person element necessary for standing was satisfied. In support of that conclusion the majority relies on our decision in Skamania County v. Columbia River Gorge Commission, 144 Wn.2d 30, 26 P.3d 241 (2001), where we concluded that the Columbia River Gorge Commission, a government entity, was “undeniably an ‘entity’ that [was] ‘adversely affected’ by a final county land use decision in conflict with the [Columbia River Gorge National Scenic Area] Act, [16 U.S.C. § 544].” Id. at 47. The majority posits that like the Gorge Commission in Skamania County, “Chelan CountyO can be prejudiced or injured by the erroneous interpretation and application of law of its own agent, its Director of Planning.” Majority at 936.

In my view, the majority’s analysis is incorrect because it fails to recognize that in Skamania County the Gorge Commission was not challenging its own decision. Rather, it sought to invoke its statutory authority to either “modif[y], terminate 0, or set aside” or to “enforce” a Skamania County land use decision. Skamania County, 144 Wn.2d at 37, 46. That distinction is, in my judgment, very significant to this case for two reasons. First, 16 U.S.C. § 544(m)(a) specifically vests the Gorge Commission with the authority to “modify, terminate, or set aside” and to “enforce” a county’s final land use decision, whereas LUPA contains no similar provision with respect to County. What is more significant is that, contrary to the majority’s suggestion, Skamania County was not seeking to challenge its own decision. Indeed, Skamania County was a defendant in the enforcement action brought by the Gorge Commission. Although I agree with the majority that one government entity may be *945aggrieved or adversely affected by the decision of another, as was the case in Skamania County, no party is asserting here that County was prejudiced by action of any entity other than itself.

The view that I espouse, that County lacked standing to seek judicial review of its own decision, is consistent with the reasoning employed by the United States Supreme Court in Director, Office of Workers’ Compensation Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 115 S. Ct. 1278, 131 L. Ed. 2d 160 (1995). There the Court said that the “status of the Government as a statutory beneficiary .. . must be sharply distinguished from the status of the Government as regulator or administrator.” Id. at 128. It then indicated that a government agency acting within its regulatory or administrative capacity should not be conferred standing “under an ‘adversely affected or aggrieved’ statute [because to confer such standing] would put the . . . courts into the regular business of deciding intrabranch and intraagency policy disputes—a role that would be most inappropriate.” Id. at 129.

The reasoning of the Supreme Court in Newport News Shipbuilding makes sense to me. In my opinion, we should be reluctant to place the courts in a position of reviewing agency policy decisions. After all, deference is due to a government agency’s decision in areas of its expertise. Unfortunately, the majority confers standing to any government entity wishing to appeal its own land use decision under LUPA. It also subjects that entity to LUPA’s 21-day time bar. This result flies in the face of the government’s inherent power to enforce its zoning laws. Furthermore, it is fatal to any future modification or withdrawal of a planning decision in cases where the government planning agency, like County, has failed to appeal its own land use decision. Although certainly not intended, the majority’s decision may force an absurd result, i.e., agencies appealing decisions they make in good faith simply in order to avoid being foreclosed from changing the decision after 21 days if *946they become convinced that the earlier decision was wrong. Finally, I would observe on this point that if the 21-day period should run against any party, it is Nykreim. I say that because from the time County changed its mind and reversed its earlier decision, Nykreim became a party aggrieved and, thus, had standing under LUPA to appeal.

Ill

While the merits of this case can be resolved with respect to Chelan County alone, I believe that brief mention of the position of Neighbors, as intervenors, is warranted.155 To be sure, the effect of the majority’s decision with respect to Neighbors is unsettling because it underscores the manifest unfairness of affording Neighbors no opportunity, notice, or hearing to challenge a land use decision that adversely affects their property interests.156 This result is even more problematic because Neighbors likely do not have standing under LUPA.157

IV

In sum, I agree with the Court of Appeals that LUPA does not apply here because County was not aggrieved or adversely affected by its own decision. I would hold, therefore, that the 21-day limit for appeals does not apply to County’s *947challenge to the BLA. Because the majority concludes otherwise, I dissent.

Johnson, Madsen, and Owens, JJ., concur with Alexander, C.J.

The approximate sizes of “old” parcels A, B, and C were 33.5 acres, 4 acres, and 2.5 acres, respectively. Clerk’s Papers (CP) at 393.

The approximate sizes of Nykreim’s “new” parcels A, B, and C are 18.5 acres, 10.7 acres and 10.7 acres, respectively. CP at 394.

RCW 58.17.010 states in relevant part that “the process by which land is divided is a matter of state concern and should be administered in a uniform manner by cities, towns, and counties throughout the state.” Pursuant to RCW 58.17.040(6), the Chelan County Code specifically exempts BLAs from the *942subdivision requirements under certain conditions. See Chelan County Code 12.36.010(a).

RCW 58.17.040(6) sets forth exemptions for BLAs from subdivision regulations and requirements. It states that requirements of chapter 58.17 RCW do not apply to “[a] division made for the purpose of alteration by adjusting boundary lines, between platted or unplatted lots or both, which does not create any additional lot, tract, parcel, site, or division nor create any lot, tract, parcel, site, or division which contains insufficient area and dimension to meet minimum requirements for width and area for a building site.”

Chapter 58.17 RCW vests local authorities with the power to establish their own procedures for review of boundary line adjustments. During the relevant period, County adopted no defined review procedures, e.g., notice or hearing requirements, with regard to its BLA decisions.

LUPA contains a 21-day limitation period from the date of issuance in which to appeal land use decisions. RCW 36.70C.040(3).

Under LUPA, standing to bring a land use petition is limited to the applicant or property owner to whom the land use decision is directed or to a person aggrieved or adversely affected by the land use decision. Pursuant to that statute, “[a] person is aggrieved or adversely affected ... when all of the following conditions are present:

“(a) The land use decision has prejudiced or is likely to prejudice that person;

“(b) That person’s asserted interests are among those that the local jurisdiction was required to consider when it made the land use decision;

“(c) A judgment in favor of that person would substantially eliminate or redress the prejudice to that person caused or likely to be caused by the land use decision; and

“(d) The petitioner has exhausted his or her administrative remedies to the extent required by law.” RCW 36.70C.060(2).

An intervenor is “as much a party to the action as the original parties, and renders himself vulnerable to complete adjudication of the issues in litigation between himself and the adverse party.” 59 Am. Jur. 2d Parties § 170 (1987) (footnotes omitted). However, final adjudication of an intervenor’s legal rights may depart from those of the original parties. 59 Am. Jur. 2d Parties § 174 (1987).

Applying LUPA to this case raises due process concerns by denying Neighbors, as adversely affected property owners, an opportunity to assert their interests. See, e.g., Larsen v. Town of Colton, 94 Wn. App. 383, 973 P.2d 1066 (1999).

See Larsen, 94 Wn. App. at 391 (interests of adjacent property owners are not intended or required to be considered by the City in issuing building .permits); see also RCW 36.70C.060.