October 3, 2012

Birnbaum gets support from friends of the court

By Brian T. Hodges Senior Attorney

While we wait for the Supreme Court of Washington to decide whether it will review Birnbaum v. Pierce County, I thought it might be nice to give some attention to two amicus briefs that were filed in support of our petition for review.  As a refresher, here’s the issue in the case as I described it in a previous post:

About a month ago, we brought you the story of Wendy Birnbaum, a Pierce County, Washington, property owner who got stuck in the permitting process when she applied to open a campground and RV park on her property in the foothills of Mt. Rainier.  This week, we submitted a petition for review to the Supreme Court of Washington, urging that Court to review her case.

At issue in Ms. Birnbaum’s case is whether a Washington statute (known as Chapter 64.40) designed to allow property owners to sue for damages caused by government misfeasance in the permitting process provides a vehicle for Ms. Birnbaum to recover damages for the delay she experienced.  In early 2005, Ms. Birnbaum submitted her application to Pierce County.  By law, the county should have given her an answer within 120 days.  After more than five years of delay, the county finally granted the permit.  Following the decision granting the permit, Ms. Birnbaum sued the county for damages as a result of not being able to realize profit from her property while the permit was pending.  Ironically, the Court of Appeals ruled that Ms. Birnbaum’s suit could not proceed because she did not file her complaint quickly enough.

One of the big issues in the case is whether Chapter 64.40 requires property owners who are harmed by the government’s actions during the course of permitting to file a claim for damages before the permitting process is over.  The Building Industry Association of Washington filed an amicus brief emphasizing the unfairness of such a rule, which would transform what should be a cooperative relationship between the applicant and the government into an adversarial one.  BIAW’s brief also highlights the importance of making sure the law allows developers to recover for damages incurred as a result of government delay.  When a project gets delayed, the property owner might lose the financial backing required to get the project done, or might even default.

The other amicus brief was filed by developer Highbridge Road LLC.  Highbridge’s brief shows that eliminating the possibility of recovering damages under Chapter 64.40 removes any incentive for the government to comply with legally established permitting deadlines.  Highbridge also argues that the lower court’s decision creates a major problem because it does not establish a clear rule allowing the permit applicant to determine the moment when her claim for damages accrues.

No one understands the value of a good amicus brief better than we do.  We hope the Court will carefully consider the arguments developed by the amici supporting Birnbaum’s petition when it decides whether to take up her case at the end of October.

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