United States District Court, W.D. Washington, Tacoma
ORDER GRANTING MOTION TO AMEND AND STRIKE
RONALD B. LEIGHTON, District Judge.
THIS MATTER is before the Court on Plaintiff William F. Anthony's motion to amend and strike. Plaintiff Anthony is the owner of a parcel of land in the town of Grapeview, Mason County, Washington. Mason County, its employees Rebecca Hersha, Grace B. Miller, and County Department of Community Development Director, Barbara A. Adkins, are the defendants in this matter. Between 2008 and 2012 Mr. Anthony repeatedly sought a zoning variance in order to construct a new building on his property to serve as a garage and art studio. These efforts were allegedly unjustly denied by Mason County. During his attempts to obtain a building permit from Defendant Mason County, Mr. Anthony, individually and through his attorneys, submitted several requests to Mason County for public records related to his permit applications. In the course of the instant litigation, Mr. Anthony submitted discovery requests. In response, Mason County turned over several emails that were neither produced nor privileged from his prior public records requests. In light of these new documents, Mr. Anthony seeks to amend his complaint and add violations of the Public Records Act RCW 46.52; Mason County does not consent to the amendment and argues that the amendment is barred by futility. Because the amended claims are not barred by Rule 15, the motion is GRANTED.
Plaintiff Anthony is the owner of real property located at 1951 E. Mason Lake Drive E, Grapeview, Mason County, Washington. He purchased this property is 2003. The lot, situated on the shoreline of Mason Lake, is approximately.59 acres and 98-feet wide and is improved with a three-bedroom, two-bath home. The property is zoned as Rural Residential and, as such, is subject to a side and rear yard setback of 20 feet for residences and accessory buildings. Mason County Code 17.04.223(d). There is an exception to this rule for parcels that are less than 100-feet wide which provides a setback "equal to ten percent of the lot width but in no case shall be less than five feet from the property line." Id.
In 2004, Mr. Anthony applied to Mason County for a permit to construct a 720-squarefoot structure on the southwest portion of his property. Because of the location of the septic system and associated drainfield, he placed the building within 8 feet of the western property line and five feet from the southern property line. This administrative variance was approved the same day that it was applied for. The permit expired in 2006 with no building having taken place.
In 2008, Mr. Anthony submitted a new administrative variance application that was essentially a re-submittal of his previously approved application. Following this application, Mason County Planning staff, including Defendant Rebecca Hersha allegedly met or spoke with Mr. Anthony's neighbors Forrest and Amy Cooper. The neighbors objected to the proposed structure and personally requested that the administrative variance application be denied. Mr. Anthony alleges that this led Ms. Hersha to become predisposed to denying the permit and that she sought out grounds to reject the application. The application was denied on September 22, 2008.
On October 6, 2008, Mr. Anthony, through his attorney at the time, submitted a public records request for "all records contained in his legal parcel file." A number of records were returned. No privilege log or indication that records were being withheld accompanied the responsive documents.
On October 13, 2008 an additional request was issued for all records that pertained to the construction proposed in 2004 and 2008 including correspondence generated by or received by the planning or building departments. Again responsive documents were returned with no privilege log or indication that records were being withheld.
On April 29, 2011, Mr. Anthony, through his attorney at the time, submitted further public records requests for all records, documents, e-mails and communications of any type and in any form regarding this 2008 building application and variance request. Again responsive documents were returned with no privilege log or indication that records were being withheld.
In March 2012, Mr. Anthony tried again to get a permit to construct the accessory building, this time with greater setbacks. This updated application sought a non-administrative variance from the rear and side yard setbacks, rather than the administrative variance requested in his 2004 and 2008 applications. Again Ms. Hersha was assigned to the application. At a public hearing on July 10, 2012, she recommended denial of the variances. During this hearing, however, Ms. Hersha allegedly stated that Mr. Anthony's "flag shaped" lot qualified for the side yard setback exception of Mason County Code 17.04.223. This would allow him to build with 9.8 foot setbacks, ten percent of his lot width.
In response, Mr. Anthony withdrew the application and on July 24, 2012 submitted a modified application with 10 foot setbacks, which did not require a variance. On August 2, 2012 Ms. Hersha advised that she would not approve the request. After some correspondence with Defendants, Ms. Adkins notified Mr. Anthony that another planner in the department, Grace Miller, would process the permit application. Ms. Miller also refused to grant the permit and suggested that because Mr. Anthony's lot had two lot widths it did not qualify for the side yard setback exception.
Mr. Anthony's appeal of this decision included a hearing on November 8, 2012. At this hearing Ms. Miller allegedly made unsubstantiated statements to justify the "two widths" approach. She also allegedly argued that lot width was determined by building orientation, in contradiction to materials she had cited to in prior correspondence.
Eventually, on November 26, 2012 the hearing examiner, Phil Olbrechts, rejected the County's argument and reversed the County's denial of the building permit. Despite this, Defendant Adkins refused to release the building permit until the time for appealing the hearing examiner's decision had expired. After consulting with the Department of Commerce ...