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Kilpatrick v. City of Anacortes

December 19, 1996


Appeal from Superior Court of Skagit County. Docket No: 94-2-01111-4. Date filed: 11/13/95. Judge signing: Hon. Michael E. Rickert.

Authored by Mary K. Becker. Concurring: Faye C. Kennedy, Ronald E. Cox

The opinion of the court was delivered by: Becker

BECKER, J. -- The Anacortes Board of Adjustment voted at a public meeting to deny the Kilpatricks' application for a variance. Twenty-seven days later, the Kilpatricks sought review in superior court. The statutory time limit for seeking a writ is 10 days from the Board's "action". The court dismissed their complaint as untimely. We affirm, rejecting the argument that "action" requires entry of a written document. The "action" that triggered the appeal period was the Board's vote.


F. Michael and Sally Kilpatrick sought a variance to build two houses on a 10,500 square foot parcel where the minimum lot size for one house was 7,500. When the Board denied the variance, the Kilpatricks filed in superior court a complaint and applications for writs of mandamus and certiorari. Their pleadings included a claim for damages. The superior court determined that the Kilpatricks did not timely file the action, and dismissed it with prejudice. The Kilpatricks filed this appeal. They have now sold their entire interest in the lot. Because of the sale, the City requests this court to terminate review for mootness.

This court dismisses an appeal where the substantial question involved in the trial court no longer exists. *fn1 It is clear that the trial court may not compel the Board of Adjustment to grant the Kilpatricks a variance to build on property they do not now own. But the City has not conclusively demonstrated that the trial court is thereby unable to grant them relief in damages. We therefore deny the City's petition to terminate review.


The Kilpatricks contend that the superior court erred when it determined that the appeal was untimely under RCW 35A.63.110. That statute provides that Board "action" is "final and conclusive" unless appealed within 10 days from the date of the "action". *fn2 By a vote of two to two, the Board failed to adopt the hearing examiner's recommendation in favor of a variance on April 19, 1994. By a vote of two to two, the Board also failed to approve the variance on September 1, 1994. The record reflects that Mr. Kilpatrick was present at this hearing when the Board took its vote. The Kilpatricks filed their appeal to the superior court on September 28, 1994. The trial court concluded that the board vote on September 1 was a final and conclusive action, and dismissed all the Kilpatricks' claims with prejudice.

The Kilpatricks contend that only a written decision can be a final decision marking the beginning of an appeal period. They argue by analogy to the rule that a court's decision is not final until reduced to writing. *fn3 We reject the invitation to engraft rules of judicial procedure upon an appeal governed by its own statute. Instead, we undertake to determine what the Legislature meant, in RCW 35A.63.110, by referring to an "action" that is "final and conclusive."

In DiGiovanni v. City of Tukwila, *fn4 we held that the city council's act of passing a zoning ordinance, rather than the ordinance's effective date, was the council's final and conclusive action. We understood the term "action", as used in the provision for appeal from actions of Tukwila's city council, *fn5 to have its ordinary dictionary meaning of "the process of doing: exertion of energy: performance: manner of doing" or "a voluntary act of will that manifests itself externally . . . a thing done: deed". *fn6 Similarly, in the context of a city council's decision to rezone, this court held in Concerned Organized Women and People Opposed to Offensive Proposals, Inc. v. City of Arlington *fn7 that the appropriate appeal-triggering event is the date of the meeting when the council made its decision, even if subsequent publication of an ordinance is required. "The council's decision is public and the interested parties are usually present at the meeting at which the decision is made." *fn8 The date of a meeting when a Board takes its final vote is an appropriate trigger because it is "easily determined and precisely fixed and because all parties to the public proceeding will ordinarily know of the Board's public vote at the time it is taken." *fn9 The appeal statute in the Kilpatricks' case provides that the Board "shall issue a written report giving the reasons for its decision." *fn10 But the Board's vote, not a report explaining the vote, is the "action" contemplated by the statute. *fn11 For this reason it is immaterial that the record before us does not indicate whether the Board ever issued a written report of its reasons for denying the Kilpatricks' variance request.

What is material is the "final and conclusive" nature of the Board's rejection of the variance application on September 1, 1994. An oral vote will not be final if further action is necessary to complete it--for example, when a vote to approve a variance is followed by a written order setting forth detailed conditions. As our Supreme Court reasoned in North Street Ass'n v. City of Olympia, *fn12 "It would be fundamentally unfair to require that a writ be filed before the scope of the approval is known." *fn13 But here, the Board's vote denied the variance. The Board neither contemplated nor needed further formal action to effectuate that decision. *fn14 There is no basis in the record for the Kilpatricks' assertion that the way remained open for them to seek another vote from the Board of Adjustment after its decision on September 1. Nothing in the transcript of that meeting indicates that the Board's decision was subject to later modification.

The Kilpatricks ask that we consider the appeal procedures provided by the Land Use Petition Act. *fn15 We have not done so because the events in this case occurred before that Act went into effect.

Finally, the Kilpatricks argue that an Anacortes zoning ordinance requires the Board to enter findings. But the cited ordinance, by its terms, only applies to cases where the Board grants the variance.

We hold that the Board's vote was its final and conclusive action and no written document was necessary to begin the appeal period. The trial court ...

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