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Milosavlejevic v. City of Brier

United States District Court, W.D. Washington

March 10, 2017

CITY OF BRIER, Defendant/Respondent.




         This matter comes before the Court on Petitioner's claim under Washington's Land Use Petition Act (“LUPA”), RCW 36.70C, et seq.[1] RCW 36.70C.080(5) provides that the “parties may waive the initial hearing by scheduling with the court a date for the hearing or trial on the merits and filing a stipulated order that resolves the jurisdictional and procedural issues raised by the petition, including the issues identified in subsections(3) and (4) of this section.” Accordingly, on September 30, 2016, the parties filed a stipulated request for a hearing on the merits of Petitioner's LUPA claim. Oral arguments were heard on March 9, 2017. At the end of argument, the Court made an oral ruling that Petitioner's claim would be DENIED. This Order memorializes, and sets forth the bases for, that ruling.


         On or about May 19, 2015, Petitioner filed a Variance Application with the City of Brier, in conjunction with his desire to build a chapel on his residential property.[2]Administrative Record (“AR”) 000001-000025. The property is 33, 706 square feet (.76 acres) in size. AR 000347. Petitioner's religious beliefs arise from his background in the Serbian Orthodox Church. The proposed chapel would have two domes (AR 000011), a cross-shaped footprint (AR 000012) and an interior decorated with frescos. AR at 000158. The chapel would not be used for residential purposes, nor would it be open to the public. The proposed height is 40 feet, five and ½ inches from ground level to the top of the domes. The height is important to Petitioner because, based on his religious beliefs, the height of the chapel needs to be 40 feet from the interior floor to the exterior height. Dkt. #20 at 2. The extra 5 and ½ inches is necessary for the floor, and represents the distance from the level of the ground to the interior floor height. Id.

         The property is located in the City's RS 12, 500 district, a residential zone. AR 336. The RS 12, 500 zone is intended to permit development of single family residences, maintaining a limited intensity of land use and a scale and character of development that is compatible with neighborhood residential uses. AR 348. The lots surrounding the Property are developed with residences. AR 347 and 366-383. The maximum building height in the RS 12, 500 zone is 30 feet. AR 348; Brier Municipal Code (“BMC”) 17.29.010.E.

         The procedure for variance applications is set forth in BMC 17.36.050E. After determining that the application is complete, the staff reviews the application and prepares a report to the Planning Commission. BMC 17 .36.050E.l. The City Clerk sets a date for a public hearing on the application by the Planning Commission. Id. After the public hearing is completed, “the planning commission shall transmit to the city council its decision and a report of the pertinent evidence offered at the hearing. The decision of the planning commission on the proposed change shall be advisory only.” BMC 17.30.050E.3. Upon receipt of the Planning Commission's recommendation, the City Council holds another public hearing on the variance application. For such hearing, “[n]o additional notice shall be required. At the conclusion of the public hearing, the city council will consider the recommendations of the planning commission together with any additional facts presented and may grant, deny or modify the requested variance . . . and shall prepare written findings and conclusions that support and explain its decision.” BMC 17.36.050E.4.

         On March 16, 2016, the Planning Commission held its hearing, during which members of the public, the Petitioner, and City staff provided input on the variance application. The Commission continued the hearing to March 30, 2016, to allow Petitioner and City staff to provide additional information. AR 343. At the continued hearing on March 30th, the City Planner presented a Revised Staff Report, and the Commission heard comments from Petitioner and one member of the public. Id. AR 343. The Planning Commission then deliberated, voted unanimously to recommend denial of the variance application, and directed staff to prepare a written proposed Report and Recommendation to the City Council for the Commission's consideration at its April 20, 2016, meeting. AR 344. At the April 20th meeting, the Planning Commission reviewed the proposed Report and Recommendation, and voted to postpone action until the May 18, 2016, meeting due to allegations by Petitioner that his religious rights would be violated if the Commission denied his application. AR 344. The Commission also authorized the Chair to re-open the hearing on the application if recommended by the City Attorney. AR 344. On May 2, 2016, the Chair re-opened the hearing based upon the City Attorney's recommendation. AR 344. On May 18, 2016, the Planning Commission held the re-opened hearing, received a Final Revised Staff Report with attachments (AR 346-468), and again heard comments from Petitioner, three members of the public, and staff. The Planning Commission considered the documents, public comments, and other information, and passed a motion to approve the Report to the City Council, recommending that the variance be denied.[3]AR 343-45. The Commission noted that only two of the eight mandatory criteria for granting a variance had been met. AR 344 and 349-57.

         The City Council held its public hearing on July 19, 2016. Dkt. #17 (Transcript #2). At the hearing, the City Council was presented with: (1) Petitioner's variance application (AR 361-363); (2) materials submitted by Petitioner to explain and support his application (364-65 and 386-393); (3) the City Council Staff Report (AR 336-8); (4) the Planning Commission's Report and Recommendation to the City Council, with its attachments (AR 343-45); (5) the Final Revised Staff Report to the Planning Commission, with Attachments A through N (AR 346-468); (6) the Minutes for the Planning Commission's March 16, March 30, April 20 and May 18, 2016 meetings, which included summaries of the public comments made at the Planning Commission hearing (AR 469-477); (7) written comments on the variance application submitted to the City, which were attached to the Final Revised Staff Report to the Planning Commission (AR 427-468); and (8) documents assembled by City staff relating to Petitioner's claim that the federal Religious Land Use and Institutionalized Persons Act required the City to grant his variance request, which were attached to the Final Revised Staff Report to the Planning Commission (AR 394-426). City staff also provided the City Council with draft Findings of Fact and Conclusions of Law and Decision, consistent with the Planning Commission's Report and Recommendation. AR 339-42.

         After the hearing opened, City staff summarized the application and process to date, and stated that staff and the Planning Commission recommended that the application be denied because six of the eight variance criteria were not met. Dkt. #17 at 4-5. The Mayor then invited comments from Petitioner or anyone in the audience who had not spoken at the prior hearing pertaining to Petitioner's application. Id. at 5. Three people who had not spoken before the Planning Commission spoke to the Council. Two of those people voiced concerns in opposition to the variance, and one person asked for some clarification and then stated his general opposition to the chapel. Id. at 6-10. Petitioner objected to the submission of new evidence on the grounds that state law allows only one open-record hearing in land use decisions. Id. at 11-12. Then, one additional comment letter was read into the record. AR 478 and Dkt. #17 at 13-14. Petitioner was permitted to respond to the letter. Id. at 14. In response to Petitioner's objection, the City Attorney explained that the state law and the City's ordinances may or may not conflict, but he had recommended that the Council follow the City ordinance and hold two public hearings. Id. at 17. He further noted that if the argument went any further, it would have to be decided by another body. Id.

         Ultimately, the City Council denied the variance, and Petitioner filed the instant action seeking review under LUPA. Dkt. #1. In addition, he included causes of action under the Religious Land Use and Institutionalized Person Act, and the Civil Rights Act, which are not being considered by the Court at this time. Id. Petitioner contends that the City did not follow the procedures required by law by having more than one open-record hearing. Petitioner asserts that the sole question before this Court is whether the City engaged in an unlawful procedure in the processing of Petitioners' variance requests under Washington state law.


         LUPA governs judicial review of land use decisions. Durland v. San Juan County, 182 Wn.2d 55, 63, 340 P.3d 191 (2014). A “land use decision” is “a final determination by a local jurisdiction's body or officer with the highest level of authority to make the determination, including those with authority to hear appeals . . . .” RCW 36.70C.020(2). When reviewing an administrative land use decision under LUPA, an appellate court stands in the shoes of the superior court and reviews the administrative record. RCW 36.70C.130; King County Dep't of Dev. & Envtl. Servs. v. King County, 177 Wn.2d 636, 643, 305 P.3d 240 (2013). A party seeking the reversal of a land use decision has the burden to establish one of six statutory standards under LUPA:

(a) The body or officer that made the land use decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless;
(b) The land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise;
(c) The land use decision is not supported by evidence that is substantial when viewed in light of the whole record before the court;
(d) The land use decision is a clearly erroneous application of the law to the facts;
(e) The land use decision is outside the authority or jurisdiction of the body or officer making the decision; or
(f) The land use decision violates the constitutional rights of the party seeking relief.

         RCW 36.70C.130(1). This case implicates Subsection 1(a). Subsection (a) is a question of law that this Court reviews de novo. Phoenix Dev., Inc. v. City of ...

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