Mercer Enterprises, Inc. v. City of Bremerton

611 P.2d 1237, 93 Wash. 2d 624, 1980 Wash. LEXIS 1312
CourtWashington Supreme Court
DecidedMay 29, 1980
Docket45608
StatusPublished
Cited by16 cases

This text of 611 P.2d 1237 (Mercer Enterprises, Inc. v. City of Bremerton) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mercer Enterprises, Inc. v. City of Bremerton, 611 P.2d 1237, 93 Wash. 2d 624, 1980 Wash. LEXIS 1312 (Wash. 1980).

Opinions

Dolliver, J.

In February 1975, the Bremerton City Council enacted ordinance No. 3210. The ordinance amended the Bremerton zoning code to require that all dwelling units in R-l districts be provided with 4,800 square feet of land area. Prior to the passage of the ordinance, only 1- and 2-family dwellings had been allowed in R-l districts. The ordinance is referred to as the "nine units per acre" ordinance because the maximum permissible density was 9.075 dwelling units per acre of land.

Mercer Enterprises, Inc., intended to build a large condominium project on a 49-acre site adjacent to Lake Kitsap and located in an R-l district in Bremerton. Mercer applied for a building permit for the project on September 3, 1976. Three months later, December 8, 1976, before any action had been taken on the permit application, the Bremerton City Council placed a moratorium on processing of all permits applied for under ordinance No. 3210. On January 6, 1977, Mercer submitted a modification of its project [626]*626plans to reduce the number of units in the project. Mercer filed an additional submittal to the Building Department on March 24, 1977. On March 23, 1977, the City repealed ordinance No. 3210.

Mercer's original proposal called for construction of 408 multifamily units on 30.81 acres and 35 single-family residences on 18.5 acres, for a total density for the entire project of approximately 9 units per acre. The September application was for Phase 1 of the project, consisting of 196 units in 11 buildings on 12.31 acres, which exceeded the maximum density permissible under the ordinance. The application was accompanied by a site plan for the entire project. This site plan was required under the zoning ordinance to be filed as a covenant running with the land, binding the site upon the issuance of the building permit to the form of development shown. The site plan showed the projected location of 25 buildings to house multifamily units and outlined the lots on which the single-family residences would be constructed. The entire project thus encompassed single- and multiple-family uses and used open spaces and lower densities in Phase 2 to satisfy density requirements otherwise applicable to each building located within the Phase 1 portion of the project.

After ordinance No. 3210 was repealed, Mercer brought this action against the City seeking a writ of mandamus to compel the City to process the permit application under that ordinance. The trial court entered judgment for plaintiffs after finding that Mercer's rights had vested at the time of the September 3, 1976, application. Kitsap Lake Environmental Association was allowed to intervene in order to appeal the trial court's decision.

The heart of the argument of the Kitsap Lake Environ- " mental Association and the key question before us is whether the September 3, 1976, building permit application was sufficient at the time of its original submission to vest rights in a building permit to Mercer Enterprises. We hold it was.

[627]*627The majority rule is that a zoning regulation has retroactive effect as to applications made prior to the time the regulation was changed. Thus, most jurisdictions hold that an applicant has no vested right to have its application considered under an amended or repealed zoning ordinance. However, an applicant will be held to have such a vested right if it has made a substantial change in position in reliance on the existing zoning, or if the municipality is estopped from denying the permit by virtue of its bad faith conduct. See Annot., Retroactive Effect of Zoning Regulation, in Absence of Saving Clause, on Pending Application for Building Permit, 50 A.L.R.3d 596 (1973).

Washington, however, has adopted a minority rule which also has been embraced by Florida, Indiana and Ohio. The Washington rule states that, under the old ordinance, an applicant's rights vest at the time of application as long as the project conforms to existing codes and regulations. In Hull v. Hunt, 53 Wn.2d 125, 130, 331 P.2d 856 (1958), we said:

Notwithstanding the weight of authority, we prefer to have a date certain upon which the right vests to construct in accordance with the building permit. We prefer not to adopt a rule which forces the court to search through (to quote from State ex rel. Ogden v. Bellevue [45 Wn.2d 492, 275 P.2d 899 (1954)]) "the moves and countermoves of . . . parties ... by way of passing ordinances and bringing actions for injunctions" — to which may be added the stalling or acceleration of administrative action in the issuance, of permits — to find that date upon which the substantial change of position is made which finally vests the right. The more practical rule to administer, we feel, is that the right vests when the party, property owner or not, applies for his building permit, if that permit is thereafter issued. This rule, of course, assumes that the permit applied for and granted be consistent with the zoning ordinances and building codes in force at the time of application for the permit.

(Italics ours.)

A careful examination of the record shows substantial— indeed overwhelming — evidence to support the finding of [628]*628the trial court that the September 1976 application was believed by the responsible city officials to be in compliance with existing codes, ordinances and procedures and that this belief was communicated by these officials to Mercer prior to, at the time of, and subsequent to the permit application.

Furthermore, our independent review of the City's procedures, the requirements of ordinance No. 3210, and the permit application convinces us the September 1976 application was consistent with existing law.

Ordinance No. 3210 requires a site plan to be submitted to the Bremerton Planning Department upon application for a building permit in R-l districts. The site plan binds the property to the form of development shown thereon. It is subject to removal or modification only upon application and approval of the Planning Commission and the City Council of the City of Bremerton.

Throughout all the negotiations between Mercer and the City, the 49-acre project was considered as a complete whole. The only reference to construction phases was contained in the building permit application. The site plan was submitted to the Planning Department at the same time as the building permit application was submitted to the Building Department. The Planning Department circulated both documents to other departments, requesting comments and conditions to be attached to approval of the project. Under these circumstances, it is only appropriate that we view the proposed development in a similar context.

Hull v. Hunt, supra, does not detail what specific information must be included in the application; only that what is contained in the application be consistent with the codes and ordinances then in force. While it may be that in other situations a different type of application would be required by a city ordinance, here the requirements of the ordinance were met.

The trial court also found — and its finding is unchallenged by the Kitsap Lake Environmental Association— [629]

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Mercer Enterprises, Inc. v. City of Bremerton
611 P.2d 1237 (Washington Supreme Court, 1980)

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Bluebook (online)
611 P.2d 1237, 93 Wash. 2d 624, 1980 Wash. LEXIS 1312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mercer-enterprises-inc-v-city-of-bremerton-wash-1980.