BERNERT v. KITSAP COUNTY, 26248-7-II (Wash.App. 8-10-2001)

No. 26248-7-II.The Court of Appeals of Washington, Division Two.
Filed: August 10, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Kitsap County, No. 99-2-01023-1, Hon. Terry K. McCluskey, July 5, 2000, Judgment or order under review.

Counsel for Appellant(s), Theresa A. Schrempp, 2955 80th Ave S.E. #201, 2955 80th Ave Se#201, Mercer Island, WA 98040-2973.

Irving A. Sonkin, Sonkin Schrempp, 2955 80th Ave S.E. #201, Mercer Island, WA 98040-2670.

Counsel for Respondent(s), Shelley E. Kneip, Kitsap Co Dep Pros Atty, Kitsap Co Pros Ofc M/S 35, 614 Division St, Port Orchard, WA 98366-4681.

J. DEAN MORGAN, J.

Relying on the vested rights doctrine, Charles H. Bernert[1] appeals Kitsap County’s denial of his application for a conditional use permit. We affirm. Apex Airpark is a private residential airpark located in Kitsap County. It is comprised of a small airstrip and adjoining residential properties. It is owned by a non-profit corporation called the Apex Property Owners Improvement Association (APOIA), the members of which are the owners of the surrounding residences. It is used primarily by those same people, though it is open to the public on a limited basis. Bernert owns five acres on the airstrip’s east side.

On October 6, 1995, the Central Puget Sound Growth Management Hearings Board (CPSGMHB) ruled that Kitsap County’s comprehensive plan failed to comply with the State’s Growth Management Act (GMA). Accordingly, it invalidated Kitsap County’s Plan.[2] Later in October 1995, the County adopted interim ordinances that were effective from January 8, 1996 to September 8, 1997.[3] These ordinances rezoned the area around the airstrip to allow business parks of seven acres or more.[4]

On August 14, 1996, while the interim ordinances were in effect, Bernert submitted a building permit application to the County.[5] He was asked to indicate, by checking the appropriate box, whether his project was `commercial’ or `residential.’ He checked `residential.’[6]
In his application and other discourse, Bernert told the County that he wanted to build an 8,000 square-foot airplane hangar to shelter seven planes. Perceiving the hangar to be quite large, the County asked whether it was for commercial use. By letter dated December 4, 1996, Bernert responded, `It is our intent to utilize these hangars for our own use for storage of our airplanes.’[7] He went on to show that he himself had eight airplanes.

On March 20, 1997, while his initial application was still pending, Bernert submitted another application entitled `Commercial Permit.’[8]
Except for its title, this application was the same as the earlier one.

On July 9, 1997, the County issued a building permit in exchange for a commercial permit fee. It also imposed two express conditions pertinent here.[9] One condition stated that the building would be `for personal use only; no commercial use allowed without further approval.’[10] The other condition stated that `this project is a residential application with a future vision of possible commercial use; therefore, no fire flow or fire apparatus access is required at this time.’[11]

Bernert did not appeal these conditions. On the contrary, he signed and accepted them. In doing so, he expressly `agree[d] to abide by the conditions of this permit including all conditions of zoning, building codes and State, and Federal laws.’[12] Also on July 9, 1997, Bernert filed a `pre-application conference request’ for a conditional use permit. He listed his `project name’ as `Bernert Hangars adjoining 2-1/2 acres,’ and his `proposed use’ as `commercial airplane storage
RV storage.’[13] Later the same month, a preapplication conference was held. Sometime after July, Bernert built his hangar. Although the County had not required him to do so, he unilaterally installed the type of fire suppression gear needed for a commercial building. On June 5, 1998, Bernert applied for a conditional use permit. He stated in his application that the `site area’ was `[five] acres,’ and that the `existing zone classification’ was `business park.’[14] The County replied by letter the same day. It stated:

This letter is intended to outline what additional information is necessary to allow this department to accept your Conditional Use Permit Application:

1. A completed CUP form that includes the signature of the Apex Airpark Association, acknowledging that the application will amend the Apex Airpark UUP approval to allow commercial land use on a designated portion of the approved UUP.

2. A map and legal description of the area being amended.

3. A clear statement how the original UUP is being amended with this application.

4. A Storm Drainage Plan and Analysis, meeting the minimum requirements of Ord. 199-1996.

You should be aware that rules are likely to change this Monday June 8, 1998. Should this happen, and your property is redesignated as a Rural Residential Use, then your application would have no vested rights. Subsequently, your application review would not be able to continue without a Comprehensive Plan Amendment.[15]

Bernert supplied the requested information, and on June 11, 1998, the County deemed his application `complete.’[16]

On June 22, 1998, the County adopted a new Interim Zoning Ordinance and Comprehensive Plan.[17] The new ordinance rezoned Bernert’s property `rural residential.’ On August 7, 1998, the County informed Bernert that it was denying a conditional use permit. The reason, it said, was that `current zoning no longer allows Business Park type uses at this location.’[18]

On August 21, 1998, Bernert appealed to the hearing examiner. After a hearing in October, the hearing examiner ruled on December 4, 1998 that a conditional use permit should be denied. Bernert appealed to the Board of County Commissioners, which affirmed; to the superior court,[19] which affirmed; and then to this court.

Bernert bases this appeal on the existence of a `vested right.’ He claims that he acquired that right on March 20, 1997, when he filed his application for a commercial building permit. He does not claim that he acquired that right when he filed his June 11, 1998 application for a conditional use permit. The only effect he ascribes to the latter application is that it did not `diminish’[20] whatever vested rights he already had.[21]

In claiming that he acquired a vested right on March 20, 1997, Bernert reasons that once he had completed and submitted his application for a commercial building permit, he had a `vested’ right to build a commercial building; and if he had a `vested’ right to build a commercial building, he must also have had a `vested’ right to use his land for commercial activities. He concludes that the tribunals below erred by `denying [his] application for a Conditional Use Permit for a Business Park use.’[22]

This claim is really a number of arguments tangled together. We take each one separately. Bernert argues that the vested rights doctrine applies to his building permit application. Ignoring RCW 36.70A.302,[23]
we agree.[24] RCW 19.27.095(1) provides:

A valid and fully complete building permit application for a structure, that is permitted under the zoning or other land use control ordinances in effect on the date of the application shall be considered under the building permit ordinance in effect at the time of application, and the zoning or other land use control ordinances in effect on the date of application.

Bernert argues that the vested rights doctrine entitled him to a commercial building permit.[25] We disagree. The vested rights doctrine entitles a person `to have a land development proposal processed under the regulations in effect at the time a complete building permit application is filed, regardless of subsequent changes in zoning or other land use regulations.’[26] Without more, the vested rights doctrine does not entitle a person to have his or her application granted.

Bernert claims that the law in effect when his application was submitted entitled him to a commercial building permit.[27] He has not had the right to make such a claim, however, since he failed to timely appeal the County’s March 20, 1997 decision to issue a permit limited to residential use.[28]

Bernert may be arguing that the County granted him a commercial building permit whether it meant to or not. Although he cannot deny that the County expressly conditioned his permit the permit plainly says `for personal use only’; `no commercial use allowed without further approval’; and `this project is a residential application’[29] he asserts that these conditions were somehow ineffectual. We perceive no reason why the County lacked authority to condition the permit as it did. The only issue is whether it exercised that authority properly or erroneously, and that issue was resolved when Bernert failed to timely appeal the permit conditions.

Bernert next argues that because the County was required to grant him a commercial building permit, it also was required to grant him the right to use his land as the site for his commercial building. We disagree, because the County was not required to grant him a commercial building permit. On the contrary, as already seen, the County had authority to restrict his permit to residential use.

We do not reach whether the County, if it had granted or been required to grant a commercial building permit, would also have been required to allow commercial uses of the land and building. Thus, we do not reach cases such as Noble Manor v. Pierce County,[30] Association of Rural Residents,[31] and Schneider.[32]

Concluding that Bernert’s March 20, 1997 permit application did not generate vested rights requiring the County to grant him a conditional use permit, we affirm the hearing examiner, the County Board, and the superior court.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

WE CONCUR: HOUGHTON, J., ARMSTRONG, C.J.