Legislature looking to address Birnbaum issues

February 20, 2013 | By BRIAN HODGES

For about a year, I have been writing about Wendy Birnbaum, the property owner who got stuck in a permitting battle with Pierce County when she tried to open a campground in the foothills of Mt. Rainier.  Ms. Birnbaum sued the county to recover damages she suffered when the county delayed processing her permit application for five years (by law, it was supposed to take no more than 120 days).  The Washington Court of Appeals unfortunately dismissed her case because the court said she waited too long to file her lawsuit.

PLF took on Ms. Birnbaum’s case and filed a petition for review with the Supreme Court of Washington last June.  We argued that the appellate court’s decision, which forces property owners to sue for damages while their permit applications are pending, would place them in an unnecessarily adversarial position with the government.  (You wouldn’t criticize a waiter before he brought out your food; why should you be forced to sue the government before it decides whether or not to grant your permit?)  We also noted several other problems created by the court’s opinion, including obvious conflicts with state and federal law.  The Washington Supreme Court nevertheless chose not to review the case.

Now a bill has been introduced that seeks to address some of the problems we highlighted in our petition.  Senate Bill 5579 would modify Washington law in two ways.  First, it would establish that a land use permitting agency will be liable for damages if it delays processing a permit application by arbitrarily requesting additional and unnecessary information from the applicant prior to issuing a decision on the permit.  Second, the bill would require that any action to assert claims for damages must be filed only within 30 days after the permitting agency issues a decision on the permit.  It was commonly thought that this was the rule before the Birnbaum opinion unsettled the law.