August 25, 2023

Land Use, Property Rights and Land Development: New 2023 Washington case law that could impact you! (Part Four)


Jordan Ramis Shareholder Jamie Howsley recently summarized these cases. which were presented at the Building Industry Association of Washington Legal Committee meeting. Here are Jamie’s highlights in this multi-part series.

Growth Management Service Board filing timing challenged

Kenmore MHP v. City of Kenmore, May 4, 2023 Washington Supreme Court

The City of Kenmore (“City”) adopted an ordinance amending its municipal code and zoning code to conform to the comprehensive plan. The City published the ordinance on April 18, 2019. Kenmore MHP LLC (“MHP”) filed a petition for review (“Petition”) on Friday, June 14, 2019, with the Growth Management Hearings Board (“GMHB”). Due to traffic, the legal messenger service responsible for serving the Petition on the City failed to deliver it on June 14th and did it the next business day of June 17th.

RCW 36.70A.290(2) states that petitions shall be filed with the GMHB within 60 days of

publication.  Furthermore, WAC 242-03-230(2) states that the petition shall be served on named respondents on or before the date filed with the Board. WAC 242-03-220(4) states that the GMHB “may” dismiss a case for “failure to substantially comply” with the service requirements.

Because the service date was after the 60th day the City moved for summary judgment for failure to meet the service requirements. The GMHB agreed holding that there was not a “justifiable excuse.”

Based on the June 17 service date, the Petition was served on the City on the 60th day after publication of the City’s ordinance, but it was not served on or before the date the Petition was filed with the Board. The City moved for summary judgment based on MHP’s failure to comply with the service requirements. The Board agreed, ruling that there was not a “justifiable excuse”  that met the “substantial compliance test.”

MHP appealed and the Washington Supreme Court reversed, finding that the GMHB’s decision arbitrary and capricious because the GMHB did not see whether the late filing prejudiced the City.  Because the City had not claimed a prejudice, the GMHB should have not concluded MHP failed to satisfy the substantial compliance test.

Tags: Environmental and Natural Resources, Construction, Real Estate and Land Use, Construction and Development, Homebuilding

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