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Callfas v. Dep't of Construction and Land Use9/16/2005
The Callfases submitted an application for a Master Use Permit (MUP) to the City of Seattle's Department of Construction and Land Use (DCLU) on June 24, 1999. There were several changes in the DCLU planners assigned to the application, and these planners issued multiple correction notices to which the Callfases responded. By late 2002, the MUP had still not been issued. The Callfases filed a claim for damages with the City on November 26, 2002. The City denied their claim on February 27, 2003, and the Callfases filed suit in King County Superior Court on March 6, 2003. They alleged that the City's decision to refuse to act on their MUP application was arbitrary and capricious and caused them significant damages. They claimed damages under 42 U.S.C. sec. 1983 and RCW 64.40.
Seattle finally issued the Callfases' MUP on May 29, 2003. Meanwhile, the City had removed the case to Federal District Court, and the parties pursued discovery. On July 29, 2003, the federal court remanded the case to Superior Court on joint motion of the parties after the Callfases non- suited their section 1983 claim. The City then filed a motion for summary judgment claiming that the Callfases' original suit was barred by the limitations period in RCW 64.40.030. The trial court agreed and dismissed the action. The Callfases appeal.
We conclude that the definition of 'act' in RCW 64.40 precludes a party aggrieved by municipal administrative delay from filing suit under the statute unless the municipality has either refused to accept or made a final decision on the application or has exceeded the legal time limits for processing the application. The term 'failure to act' in the statute does permit recovery of delay damages. But it is inextricably tied to some action by the City which causes the clock to begin to run on the statute's 30-day limitation period. Because the Callfases filed suit before the City issued the MUP and do not allege a violation of the processing time limits, the trial court properly dismissed their claim under RCW 64.40.
FACTS
The Callfases' June 1999 MUP application was for a multi-use building including residential and retail uses and related parking. The application languished until June 13, 2000, when Kathi Williams, the new project architect from PKJB Architectural Group, wrote a letter to Paul Janos, a DCLU planner who had taken over the Callfases' application from Colin Vasquez. The letter said PKJP was preparing revisions to the project, including a 4-foot commercial height bonus to obtain 9' ceiling heights and included diagrams of plans at the increased height. Williams sent another letter to Janos on July 11, 2000, which addressed the 4-foot commercial height bonus and contained a sketch showing the proposed building with the height bonus in relation to an existing building. The letter also stated that Williams believed PKJP and the Callfases did not need to file an exemption from the steep slope and landslide prone area requirements (ECA exemption) because there was previous construction on the site.
On August 14, 2000, Janos sent Williams and PKJP the first DCLU correction notice for the project stating that the proposed plan 'substantially exceeds the height limit.' The letter also stated there were 'numerous other substantial code and critical areas issues to address' and provided a long list of required corrections, including: the height of the planned building; identification of a '40-foot height limit envelope on all elevations . . . showing the 5-foot slope bonus and discretionary 4-foot additional height'; provision of required parking spaces; revision to show open space calculations; identification of environmentally critical area
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