296560MAJ
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DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division II
State of Washington
Opinion Information Sheet
Docket Number: 29656-0-II
Title of Case: Darryl Sanford & Carol Sanford, Appellants
v. Clallam County, Respondent
File Date: 10/14/2003
SOURCE OF APPEAL
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Appeal from Superior Court of Clallam County
Docket No: 00-2-00794-1
Judgment or order under review
Date filed: 06/12/2002
JUDGES
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Authored by Christine Jan Quinn-Brintnall
Concurring: C C Bridgewater
J Dean Morgan
COUNSEL OF RECORD
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Counsel for Appellant(s)
Richard M. Stephens
Groen Stephens & Klinge LLP
2101 112th Ave NE Ste 110
Bellevue, WA 98004-2944
Counsel for Respondent(s)
Duncan K. Fobes
Lee Smart Cook et al
701 Pike St Ste 1800
Seattle, WA 98101-3929
Christopher Melly
Attorney at Law
Clallam County Courthouse
223 E 4th St
Port Angeles, WA 98362-3098
Amicus Curiae on behalf of Building Industry Association of Wash.
Timothy Dunning Ford
Attorney at Law
111 W 21st Ave
PO Box 1909
Olympia, WA 98507-1909
DIVISION II
Darryl Sanford and Carol No. 29656-0-II
Sanford,
Appellants,
v.
Clallam County, a subdivision ORDER AMENDING OPINION
of the State
of Washington,
Respondent.
The opinion in the above case which was filed on October 14, 2003, is
hereby amended as follows:
(1) The last sentence on page 9 which continues over to page 10 is
amended to read as follows:
The County responds that the Sanfords confuse the findings requirements for
preliminary plats with those required for final plats, explaining that it
was not required to make findings here because a final plat determination
is ministerial.
IT IS SO ORDERED.
DATED this day of , 2003.
QUINN-BRINTNALL, A.C.J.
We concur:
MORGAN, J.
BRIDGEWATER, J.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
Darryl Sanford and Carol No. 29656-0-II
Sanford,
Appellants,
v.
Clallam County, a subdivision UNPUBLISHED OPINION
of the State
of Washington,
Respondent.
QUINN-BRINTNALL, A.C.J. The Clallam County Board of Commissioners
denied final plat approval for the 'Joy Subdivision' without giving
personal notice to its owners, Darryl and Carol Sanford. The Sanfords
petitioned under the Land Use Petition Act (LUPA)1 to set aside the Board's
decision and sued Clallam County under 42 U.S.C. section 19832 and RCW
64.40.020.3 The trial court denied the Sanfords' LUPA petition and granted
the County summary judgment on the statutory claims. Concluding that the
Sanfords were entitled to personal notice of the final plat approval
hearing, we vacate the decision of the Board of Commissioners and the
superior court's summary judgment order on the statutory claims. We remand
to the Board of Commissioners for rehearing on final plat approval and, in
due course, for the trial court to determine any relief, including attorney
fees due the Sanfords under their statutory claims.
FACTS
On May 2, 1995, the Clallam County Board of Commissioners granted the
Sanfords preliminary approval of a 20-lot subdivision north of Sequim.
Final approval of the subdivision was conditioned on the Sanfords
satisfying five conditions. Among the conditions for final approval, the
Sanfords were required to obtain potable water (condition 3) and construct
sewer lines and stub-outs for future connection to an approved sewer system
(condition 4). The fifth condition incorporated the requirements of
specified sections of the Clallam County Code (C.C.C.), one of which
required all improvements to be installed prior to final approval. Former
C.C.C. 29.01.450 (1993).4
At the time the Sanfords filed their preliminary plat request,
preliminary plats were good for three years under RCW 58.17.140. Sometime
after the Sanfords received preliminary approval, the statute was amended
to allow landowners five years in which to submit their final plat for
approval. Laws of 1995, ch. 68, sec. 1. In light of this statutory
change, the County informed the Sanfords that they had until May 2, 2000,
to submit a final plat for approval.
Initially the Sanfords sought to obtain water from the North Olympic
Vista Water System. When Olympic Vista could not service the subdivision
directly, the City of Sequim offered the Sanfords two alternatives for
obtaining water from its system: either directly from the City or through
an 'intertie' with Olympic Vista, meaning City water through Vista's pipes.
As the May 2, 2000 deadline approached, the Sanfords did not have an
approved water supply.
On April 10, 2000, approximately three weeks before the preliminary
plat was to expire, the County's planning director sent the Sanfords a
letter updating what remained to be done before final approval and
expressing doubt that all could be accomplished in time. The letter
explained that the County did not grant extensions and that preliminary
plat conditions must be complete by May 2.
As an alternative to completing the conditions of final approval by
May 2, the Sanfords offered to bond the installation of improvements as
allowed under C.C.C. 29.30.900. They submitted their bond proposal to the
planning department on April 12.
Under County ordinance, the Board of Commissioners rules on bond
proposals. See
C.C.C. 29.30.900. Generally, the planning department forwards bond
proposals to the Board of Commissioners for consideration, but the planning
department never forwarded the Sanfords' proposal to the Board.
The Sanfords applied for final plat approval on April 17. The Board
scheduled a vote on the plat at their August 15 meeting. Notice of the
August meeting was mailed to several newspapers, radio, and television
stations, posted on the County's website, and posted at the County
building. But the County did not send the Sanfords personal notice of the
meeting and they did not appear.
Following the August 15 hearings, the Board denied the final plat.
Minutes from the meeting state that the director of community development
explained that the 'application expired May 2, 2000 and final plat
conditions were not met specifically water supply issue.' Clerk's Papers
(CP) at 119. The Board denied the final plat 'citing the reasons mentioned
. . . basically water supply not being substantiated.' CP at 119.
The Sanfords challenged the Board's denial of their final plat and
also sought damages under RCW 64.40.020 and 42 U.S.C. section 1983 in
Clallam County Superior Court. The trial court affirmed the Board's
decision and granted the County summary judgment on the statutory claims.
The gravamen of the Sanfords' appeal is that their due process rights
were violated when Clallam County held a final plat approval hearing
without providing them personal notice and an opportunity to be heard. The
Sanfords appealed directly to the Supreme Court, which transferred the case
to this court for review.
ANALYSIS
We review alleged constitutional due process violations de novo.
Weden v. San Juan County, 135 Wn.2d 678, 693, 958 P.2d 273 (1998). In
reviewing the Sanfords' appeal under LUPA, we stand in the shoes of the
superior court and review the Board of Commissioner's action de novo on the
basis of the administrative record. See Girton v. City of Seattle, 97 Wn.
App. 360, 363, 983 P.2d 1135 (1999), review denied, 140 Wn.2d 1007 (2000).
Due Process
The Sanfords had a property interest in the platting process and were
entitled to procedural due process. See Mission Springs, Inc. v. City of
Spokane, 134 Wn.2d 947, 962, 954 P.2d 250 (1998) (holding landowner had
'constitutionally cognizable property right in the grading permit it
sought'); Louthan v. King County, 94 Wn.2d 422, 428, 617 P.2d 977 (1980)
(explaining that although they are 'less than a fee interest, development
rights are beyond question a valuable right in property'). They contend
that this due process right required that they be given personal notice of
the Board hearing at which the County decided the fate of their plat. The
County asserts that the Sanfords were not entitled to personal notice
because (1) notice by publication sufficed, and (2) the plat application
expired three months earlier by operation of law and any notice was moot.
Personal Notice
The fundamental requirements of due process are notice and the
opportunity to be heard. Olympic Forest Prods., Inc. v. Chaussee Corp., 82
Wn.2d 418, 422, 511 P.2d 1002 (1973). To satisfy due process, notice must
be 'reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an
opportunity to present their objections.' Mullane v. Cent. Hanover Bank &
Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950).
In Mullane, the Court explained the inadequacy of notice by
publication and observed that it is unrealistic to presume that legal
publications will provide actual notice:
Publication may theoretically be available for all the world to see, but it
is too much in our day to suppose that each or any individual beneficiary
does or could examine all that is published to see if something may be
tucked away in it that affects his property interests. We have before
indicated in reference to notice by publication that, 'Great caution should
be used not to let fiction deny the fair play that can be secured only by a
pretty close adhesion to fact.'
Mullane, 339 U.S. at 320 (quoting McDonald v. Mabee, 243 U.S. 90, 91, 37 S.
Ct. 343, 61 L. Ed. 608 (1917)). The Mullane Court specifically noted that
individual notice would not be an onerous burden for the trust company in
that case because it had the addresses of all of the interested parties:
Exceptions in the name of necessity do not sweep away the rule that within
the limits of practicability notice must be such as is reasonably
calculated to reach interested parties. Where the names and post office
addresses of those affected by a proceeding are at hand, the reasons
disappear for resort to means less likely than the mails to apprise them of
its pendency.
The trustee has on its books the names and addresses of the income
beneficiaries represented by appellant, and we find no tenable ground for
dispensing with a serious effort to inform them personally of the
accounting, at least by ordinary mail to the record addresses.
Mullane, 339 U.S. at 318 (emphasis added) (citation omitted). See also
Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 800, 103 S. Ct. 2706, 77
L. Ed. 2d 180 (1983) ('Notice by mail or other means as certain to ensure
actual notice is a minimum constitutional precondition to a proceeding
which will adversely affect the liberty or property interests of any party,
whether unlettered or well versed in commercial practice, if its name and
address are reasonably ascertainable.').
Here, the County had the Sanfords' address and the planning department
had mailed the Sanfords numerous letters before the May 2, 2000 deadline.5
The Sanfords had a valuable right in the development of their property and
were entitled to personal notice of the hearing on their application for
final plat. The County violated the Sanfords' rights by failing to
personally notify them of the hearing.
Expiration of the Plat Application
The County argues that it should be excused from any requirement to
give the Sanfords personal notice of the hearing because the Sanfords' plat
application was null and void. In support of its claim that the plat
application was null and void, the County relies on the C.C.C.,
specifically former C.C.C. 29.19.300 (1996), which provides that the
preliminary plat approval 'shall be null and void unless a final plat is
approved and recorded during the original five-year period.' (Emphasis
added.) But RCW 58.17.140 requires only that the final plat must be
submitted within five years of the date of the preliminary plat approval.
Under state law, the legislative body (here, the County) then has 30 days
in which to approve, disapprove, or return the plat to the applicant. RCW
58.17.140.
Thus, under RCW 58.17.140, the Sanfords had five years from the
approval of their preliminary plat in which to submit their final plat.
Former C.C.C. 29.19.300, on which the County relies, erroneously cuts short
plat applicants' statutory right to five years to meet the preliminary plat
conditions by requiring them to submit their final plat application at an
unspecified time sufficiently in advance of the anniversary of the
preliminary approval so that it can be approved before the five-year time
limit expires.
To the extent that the Board rejected the Sanfords' final plat as
untimely under former C.C.C. 29.19.300, it erred. The Sanfords filed the
bond request and final plat application in April 2000. Local governments
may enact an ordinance prohibiting or requiring an act so long as it does
not conflict with a state statute governing the same act. See Brown v.
City of Yakima, 116 Wn.2d 556, 559, 807 P.2d 353 (1991); Town of Republic
v. Brown, 97 Wn.2d 915, 919, 652 P.2d 955 (1982) (local governments may
enact ordinances prohibiting conduct that is a crime under state law as
long as the city ordinance does not 'conflict with' the general laws of the
state, and the state law does not show on its face an intent to be
exclusive). RCW 58.17.140 governs the timeliness of the filing of a final
plat application. Under that statute an application for final plat
approval is timely if filed within five years of the preliminary plat
approval. The approving agency then has 30 days to act on the request.
The code conflicts with the statute by also requiring county approval
within five years. The Sanfords' application for final plat approval was
submitted within the statutory five-year time period and was timely.
Bond Proposal
The County also claims that the Sanfords' application for final plat
approval was deficient because they had not satisfied the five conditions
in the preliminary plat. The Sanfords argue that their bond proposal for
the water and sewage projects satisfied the requirement that these projects
be completed by May 2, 2000, and that the final plat application was
complete and timely.
Under C.C.C. 29.30.900, a landowner may request a bond in lieu of
actually completing necessary improvements during the preliminary plat
stage:
The land divider has the option of requesting, in writing, a performance
bond in lieu of the completion of any improvements required by this section
prior to the approval of a final plat. . . . The bond or savings account
assignment posted shall be in an amount equal to two (2) times the cost of
the required improvements, and the actual cost for improvements shall be
based upon a contractor's certified bid for the required improvements, a
copy of which shall be included with the written request.
CP at 125-26. See also RCW 58.17.130. The Board determines approval for
bond requests that affect subdivisions. C.C.C. 29.30.900. No public
notice or hearings are required on bond proposals. C.C.C. 29.30.900. If
approved, bonds have a term of 18 months from the filing of the final plat,
and required improvements must be constructed and installed within 12
months of the filing of the final plat. C.C.C. 29.30.900.
The Sanfords submitted a written request for a bond in lieu of
construction to the planning department on April 12, but the planning
department did not pass the request on to the Board.
The County argues that because the Sanfords did not know how the
subdivision was to obtain water, it was impossible to support their bond
request with cost estimates, as required under C.C.C. 29.30.900. Likewise,
the County argues, the Sanfords had no concrete plans for the sewer
connections required under condition 4. Even if the County is correct that
accepting a bond, considering these unknowns, would be 'tantamount to
buying a pig in a poke,' that decision was the Board's to make, not the
planning department's. Resp. Br. at 19. The planning department was
required to submit the Sanfords' bond proposal to the Board for its
consideration.
Findings of Fact
The Sanfords next argue that the Board was required to make findings
under state statute, case law, and the County's own code. The County
responds that the Sanfords confuse the findings requirements for
preliminary plats with those required for final plats, explaining that it
was required to make findings here because a final plat determination is
ministerial.
Under RCW 58.17.110, when determining whether to approve a preliminary
plat, the local governmental body makes a discretionary determination of
whether the proposed subdivision will serve the 'public use and interest.'
RCW 58.17.110(1). Once the conditions in the preliminary plat are met, the
County has no discretion in its decision but must approve the plat in
writing on the face of the plat:
When the legislative body of the city, town or county finds that the
subdivision proposed for final plat approval conforms to all terms of the
preliminary plat approval, and that said subdivision meets the requirements
of this chapter, other applicable state laws, and any local ordinances
adopted under this chapter which were in effect at the time of preliminary
plat approval, it shall suitably inscribe and execute its written approval
on the face of the plat.
RCW 58.17.170 (emphasis added).
RCW 58.17.195 provides that when plats are approved, the decision
maker must issue formal, written findings: 'No plat or short plat may be
approved unless the city, town, or county makes a formal written finding of
fact that the proposed subdivision or proposed short subdivision is in
conformity with any applicable zoning ordinance or other land use controls
which may exist.' But the statute does not require findings when a plat is
not approved.
The Clallam County Code requires findings of fact and conclusions of
law for decisions on 'Type I-III permits.' Former C.C.C. 26.10.560 (1996).
But it appears that final plat approvals were removed from the Type I
category of permits under former C.C.C. 29.10.210(2)(a)(7) (1996). The
Sanfords claim that this change occurred in June 2000, a month after the
preliminary plat expired.
The Sanfords also cite Weyerhaeuser v. Pierce County, 124 Wn.2d 26,
873 P.2d 498 (1994), to support their argument that findings must be issued
so that the parties and the reviewing courts may know the reasoning of the
decision maker:
The purpose of findings of fact is to ensure that the decisionmaker 'has
dealt fully and properly with all the issues in the case before he {or she}
decides it and so that the parties involved' and the appellate court 'may
be fully informed as to the bases of his {or her} decision when it is
made.' (Quotation marks and citations omitted.) Findings must be made on
matters 'which establish the existence or nonexistence of determinative
factual matters. . .'. The process used by the decisionmaker should be
revealed by findings of fact and conclusions of law. Statements of the
positions of the parties, and a summary of the evidence presented, with
findings which consist of general conclusions drawn from an 'indefinite,
uncertain, undeterminative narration of general conditions and events', are
not adequate.
Weyerhaeuser, 124 Wn.2d at 35-36 (citations omitted).
While the County may have no discretion in its final plat decision
once it determines that the conditions of a preliminary plat have been met,
whether those conditions are met involves findings of fact that do involve
judgment and discretion.
In any event, the best practice is for the Board to enter findings.
But the absence here of such findings was harmless because the Board's
reasoning was clear from the minutes and the decision. See, e.g., West
Hill Citizens for Controlled Dev. Density v. King County Council, 29 Wn.
App. 168, 173-74, 627 P.2d 1002 (1981) (entry of findings one week before
trial was harmless error because the basis for the Council's decision was
clear from the record); State v. Fry, 15 Wn. App. 499, 501, 550 P.2d 697
(judge's failure at revocation hearing to make written findings of fact was
harmless because the judge's oral opinion provided ample record of evidence
on which the judge relied and his reasons for revocation), review denied,
87 Wn.2d 1008 (1976).
Statutory Causes of Action
Finally, the Sanfords claim the trial court erred in granting the
County summary judgment and dismissing their statutory causes of action
under 42 U.S.C. section 1983 and RCW 64.40.020. Both statutory claims
require proof of unlawful or unconstitutional action on the part of the
governmental body. Because due process required that the Sanfords be given
personal notice of the Board's final plat hearing, summary judgment in
favor of the County on these claims was improper.
We remand with directions that the Board of Commissioners rehear the
Sanfords' final plat application and, in due course, that the trial court
determine any relief including attorney fees due the Sanfords under their
statutory claims. We do not address the parties' arguments concerning the
sufficiency of the final plat request because this is an issue to be
decided by the Board after the Sanfords are given personal notice and an
opportunity to participate at the hearing.
A majority of the panel having determined that this opinion will not
be printed in the Washington Appellate Reports, but will be filed for
public record pursuant to RCW 2.06.040, it is so ordered.
Quinn-Brintnall, A.C.J.
We concur:
Morgan, J.
Bridgewater, J.
1 Chapter 36.70C RCW.
2 That statute reads in part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress, except that in any action brought
against a judicial officer for an act or omission taken in such officer's
judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable.
42 U.S.C. sec. 1983.
3 RCW 64.40.020 reads:
Applicant for permit -- Actions for damages from governmental actions.
(1) Owners of a property interest who have filed an application for a
permit have an action for damages to obtain relief from acts of an agency
which are arbitrary, capricious, unlawful, or exceed lawful authority, or
relief from a failure to act within time limits established by law:
PROVIDED, That the action is unlawful or in excess of lawful authority only
if the final decision of the agency was made with knowledge of its
unlawfulness or that it was in excess of lawful authority, or it should
reasonably have been known to have been unlawful or in excess of lawful
authority.
(2) The prevailing party in an action brought pursuant to this chapter may
be entitled to reasonable costs and attorney's fees.
(3) No cause of action is created for relief from unintentional procedural
or ministerial errors of an agency.
(4) Invalidation of any regulation in effect prior to the date an
application for a permit is filed with the agency shall not constitute a
cause of action under this chapter.
4 'All required improvements shall be installed . . . after the county has
granted preliminary subdivision approval . . . and prior to final approval
. . . .'
5 A note in the record implies that the planning director intended that the
Sanfords would be advised of the hearing within 30 days of receiving the
final plat application and that the failure to provide the Sanfords with
personal notice was an oversight. CP at 460.
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