June 25, 2012

PLF petitions Washington Supreme Court to uphold property owners' right to sue government for damages

By Brian T. Hodges Senior Attorney

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.

Our petition argues that the Washington Supreme Court should grant review because the Court of Appeals decision dismissing Ms. Birnbaum’s case leaves the law governing the timing of Chapter 64.40 complaints in disarray.  If allowed to stand, the Court of Appeals opinion will make Chapter 64.40 unworkable as a remedy for property owners who are being deprived of the use of their property due to government delay.

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