Agenda - Planning Commission - 04/01/2010

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Zoning Bulletin February 25, 2010 I Volume 4 I No. 4 The appeal continued for a year until September 2007—two years af- ter the examiner granted the CUP. At that time, the Neighbors moved to dismiss WICO's appeal as moot. Section 36.70C.100 of LUPA permitted WICO to seek a stay of either the Superior Court decision or the CUP's time limit. WICO had not done so. In moving to dismiss WICO's appeal as moot, the Neighbors argued that: (1) absent a stay, WICO had the right to proceed with its project; and (2) since WICO failed to fulfill the requirements of the CUP within the two-year time limit, the permit ex- pired under its terms. WICO argued that: (1) "before the superior court decision revoking their permit, they could not invest in the cost of meeting the conditions of the permit due to the risk of having the permit revoked"; and (2) "af- ter the superior court decision revoking their permit, they were not per- mitted to advance the project." The court of appeals agreed with the Neighbors and dismissed the appeal. WICO petitioned the Supreme Court of Washington for review. The Court's Decision: Dismissal of appeal reversed and case remanded. The Supreme Court of Washington held that "when a trial court de- nies a permit previously granted by a hearing examiner, that permit's time limit is terminated unless the permit is reinstated on appeal." Here, the court agreed with WICO's arguments. The effect of the Su- perior Court's decision in this case, found the court, was the termina- tion of WICO's CUP. Thus, WICO "had no right to proceed with their project because they were not permitted to do so." Additionally, said the court, WICO was "not required to stay the two-year time limit because the time limit, along with the permit itself, effectively stopped existing the moment the superior court denied the permit." Thus, "[n]o rights le- gally existed that could be affected by a stay." The only action WICO could take was to appeal to the court of appeals —which it did. See also: Pinecrest Homeowners Ass'n v. Glen A. Cloninger & Associ- ates, 151 Wash. 2d 279, 87 P.3d 1176 (2004). Case Notes: In its decision, the court explained that there "would be little sense in construing the superior court's denial of the permit to both (1) prohibit [W1CO] from development while the case [was] on appeal and (2) allow their time for development to continue to run down while the case [was] on appeal." The court explained that the two-year time limit of WICO's CUP, granted on August 19, 2005, was terminated pending appellate re- view when denied by the Superior Court on May 22, 2006. The court said that if WICO was successful on review, the effect would be to reinstate the hearing examiner's decision. © 2010 Thomson Reuters 7 67