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Smoke v. City of Seattle

May 22, 1997


Appeal from Superior Court, King County. 91-2-09040-8. Honorable Stephen G. Scott, Judge.

As Amended July 17, 1997.

Authored by Barbara A. Madsen. Concurring: Barbara Durham, James M. Dolliver, Charles Z. Smith, Richard P. Guy, Charles W. Johnson, Gerry L. Alexander, Philip A. Talmadge.

The opinion of the court was delivered by: Madsen


MADSEN, J. -- This case requires us to examine the application of the statutory requirement in RCW 64.40 for exhaustion of administrative remedies to a municipal land use ordinance. We decide that a site interpretation as set forth in Seattle Municipal Code (SMC) 23.88.020 does not provide an available administrative remedy from the nonappealable denial of a Type I land use permit. We further hold RCW 64.40 impliedly authorizes award of postjudgment interest.


In 1989, Plaintiffs Larry G. Smoke, Jane C. Smoke, Dean Quall, and Elizabeth Quall, operating as Smoke Quall, Inc., purchased four lots from Defendant City of Seattle (the City) with the plan to build a single family residence on each parcel. Although the lots were substandard in size, a city ordinance allowed a single family residence on a lot less than 5,000 square feet if platted prior to 1957 and not developed with a principal structure. Plaintiffs knew a rectifier, an electrical transformer of approximately 968 square feet, straddled Lots 1 and 2 as granted by the City in a recorded easement to the Municipality of Metropolitan Seattle (Metro).

In February or March 1990, Plaintiffs discovered the City's Department of Construction and Land Use (DCLU) had issued an opinion letter to Metro in 1988 (Metro letter) deeming the rectifier merged Lots 1 and 2 into a single building site. On March 6, 1990, Plaintiffs sent a letter to the City disputing the Metro letter's Conclusions and claiming the rectifier did not qualify as a principal structure. When the City did not respond by April 1990, Plaintiffs applied for a master use permit (MUP) for each lot, establishing its use for a single family residence, and for building permits.

DCLU granted permits for Lots 3 and 4, but not for Lots 1 and 2. Between October 1990 and January 1991, the City zoning examiner issued three correction sheets repeating its position that the presence of the rectifier prohibited permitting for separate building sites. Directed to contact DCLU land use attorney William Mills, an attorney employed as a land use specialist and assigned to the interpretation section of the DCLU, Plaintiffs learned their MUPs for Lots 1 and 2 remained on hold because of the rectifier. Mills also informed Plaintiffs of their option to apply for a legal building site letter or a formal building site code interpretation. Neither a request for a building site letter nor a request for an interpretation of the director is a required component of a building permit application nor is it a condition precedent to obtaining a building permit.

On March 5, 1991, Plaintiffs' attorney sent Mills a letter reiterating his clients' position that Lots 1 and 2 qualified as separate sites and criticizing as unlawful DCLU's refusal to issue the permits. On April 5, 1991, Mills responded with an informal building site letter (Mills letter) again explaining DCLU's determination that the rectifier constituted a principal structure merging Lots 1 and 2. Mills concluded:

This letter represents the DCLU position regarding the development potential of the property . . . . It is not an appealable legal determination. If you wish to challenge the DCLU determination, you may request a formal legal building site interpretation, which is appealable to the Seattle Office of the Hearing Examiner . . . .

Ex. 6.

On April 29, 1991, Plaintiffs filed suit seeking a writ of mandamus and claiming damages on four bases: injury from the delay in permitting under RCW 64.40.020; violation of substantive due process under 42 U.S.C. § 1983; inverse condemnation; and interference in a business expectancy. In December 1991, Plaintiffs moved for summary judgment to compel DCLU to issue the permits. The City then changed its position and announced the rectifier did not prevent issuance of permits for Lots 1 and 2 as separate building sites. On May 5, 1992, the City issued the requested permits. Plaintiffs' damage claims proceeded to mandatory arbitration, and Plaintiffs succeeded in obtaining an award of $9,066.69 plus attorney fees.

The City appealed the arbitration award in a trial de novo. The parties stipulated damages of $9,066.69 should the trial court find the City liable. On August 18, 1993, the trial court found the City liable under RCW 64.40.020 because DCLU should have known its denial of the permits was unlawful and said unlawful action proximately caused injury by delaying issuance of the permits from April 5, 1991, to December 1991. Plaintiffs received a judgment for the stipulated damages plus attorney fees. The trial court ...

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