Superior Court of Clark County. Superior Court Docket No. 93-2-03984-4. Date Filed In Superior Court: June 10, 1994. Superior Court Judge Signing: Roger Bennett.
Bridgewater, J., Morgan, J., Turner, J., concur
BRIDGEWATER, J. -- The Felida Neighborhood Association, Carol Scholz, and Charlotte Coffey (Association)*fn1 appeal a superior court dismissal of their application for a writ of review and writ of prohibition. The Association challenged a Clark County Board of Commissioners' (Board) decision approving a developer's application for a sizable subdivision. The dismissal was premised on an untimely filing. We hold that notice of the Board's final decision triggers the period for a timely appeal. Clark County's (County) failure to comply with its own official notice requirements tolls the time for filing an application for a writ of review in superior court. We reverse.
Roger and Barbara Snoey applied for preliminary plat approval of "Ashley Heights," wanting to subdivide 116 acres into about 200 lots. The County determined that Ashley Heights would have a probable significant adverse environmental impact, and mandated that an Environmental Impact Statement (EIS) be prepared in support of the review process. Eventually, a final EIS (FEIS) was issued. A public hearing was held before a Clark County Land Use Hearing Examiner concerning the Snoeys' application. The examiner conditionally approved the plat application, limiting the development to 114 lots until a new access road was constructed. Parties of record including the Association were mailed the examiner's decision on February 25, 1992.
The Snoeys appealed the examiner's decision and the adequacy of the FEIS to the Board. The Board held its last public hearing on the matter on February 4, 1993. At the conclusion of the February 4, 1993, meeting, the Board issued an oral decision, memorialized in its March 10, 1993, resolution (No. 1993-03-09).*fn2 The resolution states in relevant part that "the Board finds that the limitation on the maximum number of residential lots permitted by the
Examiner's decision, 114, is not supported by county code." The Board ordered deleted that portion of the examiner's decision limiting development until an additional access road was constructed. Scholz and Coffey may have been present at the February 4, 1993, meeting. Thereafter, the County did not issue an official notice of its decision in violation of its own ordinance.
A letter from the County to Coffey dated July 26, 1993, indicates that the Board's action in March of 1993 was the "final Board Action" on the subdivision, and that the period for commencing a judicial appeal had expired. Attached to the letter was allegedly a copy of the final board action.
Approximately nine months after the Board issued its March 10, 1993, resolution removing the limiting condition that a new access road be constructed, the Association filed its application for writs of certiorari and prohibition, challenging the Board's decision.*fn3 Both parties agree that, for purposes of establishing when time limits for an appeal might have begun to run, the March 10, 1993, Board decision is the relevant final decision or underlying government action. The superior court dismissed the application as untimely because it had been filed more than 30 days after the Board's decision.
Proper review of the issue requires understanding the interplay between the appeal process provided in the State Environmental Policy Act (SEPA) statute in effect at the time these events occurred (former RCW 43.21C.075 (Laws of 1983, ch. 117, § 4)), the administrative rules interpreting the statute (WAC 197-11-680), and two Clark County codes. The county codes in question are Clark County Code (CCC) § 2.51.170 and CCC § 20.50.030(5).
SEPA provides a contingent time limit (30 days) for
seeking judicial review, which applies only if another statute or ordinance specifically imposes a time limit for seeking judicial review of the underlying action. State v. Grays Harbor ...