April 16, 2012

PLF convinces court of appeals to limit troublesome land use decision

By Brian T. Hodges Senior Attorney

Earlier today, Division One of Washington’s Court of Appeals issued a published decision in Birnbaum v. Pierce County, a case that asked whether a landowner could recover damages for government misfeasance during the permit review process.

PLF filed an amicus brief asking the court of appeals to bring an end to a troubling trend among the lower courts.  For years, Washington’s trial courts had been operating under the mistaken understanding that a landowner could never, as a matter of law, recover damages caused by the government’s delay of the permit process if the government eventually issued a permit.  This conclusion was based on a widespread misunderstanding of the 1999 court of appeals decision, Brower v. Pierce County, where the court found that a permit applicant had been adequately remedied when he received a permit on administrative appeal.

PLF’s amicus brief asked the court of appeals to either clarify and limit that decision.  The court of appeals did so, explaining that nothing in Brower stood for the proposition that the grant of a permit will necessarily preclude an action for damages.  This decision should bring an end to over a decade of bad law.

The fight, however, is not over for Birnbaum.  In a decision that raises more questions than answers, the court of appeals held that her complaint was untimely.  You see, the statute that creates a cause of action for delay damages requires that a claim be filed within 30 days after the government acts on the permit.  The court of appeals construed this as requiring that permit applicants who ultimately receive a favorable decision file a complaint seeking delay damages immediately after the statutory review period expires (well in advance of the permit).  But if the applicant receives an adverse permit decision, he must wait until the final decision is issued, then exhaust all administrative remedies before filing a complaint.

Unfortunately, your typical permit applicant – excluding, of course, those with the ability to read a crystal ball – will never know whether the application will be granted, rejected, or conditioned.  This means that in order to comply with the court of appeals’ procedure, one must sue early and often.

Kidding aside, this precise question regarding the timing of a claim for delay damages was pending before Washington’s Supreme Court a few years ago in the case, Callfas v. City of Seattle.  The issue, however, was not decided in that case because the parties settled and withdrew their appeal.  Perhaps the issue will now return to the Supreme Court.

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