PLF seeks justice for Washington landowner victimized by a bureaucratic stall

At issue: The right of property owners to sue over illegal
delays in the permit process

Bellevue, Washington; June 25, 2012: Attorneys with Pacific Legal Foundation have just petitioned the Washington Supreme Court to take the case of Pierce County property owner Wendy Birnbaum. Ms. Birnbaum wanted to build an RV park and campground, but had to wait five years for the county to issue a land-use permit that it was legally required to act on within four months.

Ms. Birnbaum sued for damages caused by the county’s delay, but, in a decision conflicting with state Supreme Court precedent, the Washington State Court of Appeals disallowed her lawsuit as filed “too late.” By seeking state Supreme Court review, PLF attorneys aim to hold the county responsible and preserve property owners’ right to recover damages when government fails to issue a permit under legally established deadlines.

Donor-supported PLF is the leading legal watchdog organization that litigates for limited government and property rights, in courts nationwide. PLF’s Pacific Northwest Center is headquartered in Bellevue, Washington. As in all PLF cases, PLF attorneys represent Ms. Birnbaum without charge.

Wendy Birnbaum’s permit was delayed, costing her the use of her property

In early 2005, Birnbaum submitted an application to Pierce County for permission to convert her property into an RV park and campground. By law, the county should have approved or denied her permit within 120 days. After years of unnecessary delays by the county, she was finally granted the permit in March, 2010.

The delay cost Ms. Birnbaum five years of the use of her property. “I was frustrated,” said Ms. Birnbaum about the illegally delayed process. “I could not move ahead on my plans to build the retreat.” Chapter 64.40 of the Revised Code of Washington gives property owners the right to sue agencies if they exceed legal time limits in processing permits. Therefore, on April 14, 2010, Ms. Birnbaum filed a lawsuit against the county for damages caused by its unlawful delay.

Court of Appeals decision undermines property owners’ rights

When Birnbaum filed her suit, she complied with a state Supreme Court ruling on a similar case, waiting to sue until the county gave her a final answer on her permit. The Court of Appeals, however, did not follow Supreme Court precedent and told her that she was not eligible to recover damages caused by the delay.

“Washington state law allows property owners like Ms. Birnbaum to recover damages when the government fails to act according to legal deadlines, but if the Court of Appeals decision stands, property owners effectively lose that remedy,” said Daniel A. Himebaugh, PLF’s lead attorney in Ms. Birnbaum’s case, and author of the petition to the Supreme Court. “A permit delayed is just as bad as a permit denied. Property owners all over Washington may lose years of productive use of their property if government agencies are able to delay permitting without consequences.”

“Situations like this make property owners feel broken, and not just financially,” said Birnbaum. “But I hope that litigating my case will help people like me. They need to know their rights and that they are not alone.”

“Pacific Legal Foundation hopes that the Supreme Court of Washington will review Ms. Birnbaum’s case and uphold property owners’ rights to recover damages for government misfeasance in the permitting process,” said PLF’s Himebaugh.

About Pacific Legal Foundation and its Pacific Northwest Center
Donor-supported Pacific Legal Foundation is the leading legal watchdog organization that litigates for limited government and property rights, in courts nationwide. PLF’s Pacific Northwest Center is headquartered in Bellevue, Washington.