Property rights dispute still alive

8:25 pm July 9th, 2012

Attorneys for an Orting-area developer have asked the state Supreme Court to hear her case against Pierce County involving her efforts to open an RV park and campground.

Pacific Legal Foundation, a Bellevue-based organization that specializes in citizens’ property rights cases, petitioned Washington’s highest court last week on behalf of Wendy Birnbaum. The justices will decide whether or not to review the case and possibly schedule a hearing.

Birnbaum wanted to build her RV development southeast of Orting, 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, according to her lawyers.

Birnbaum sued for damages she claimed were caused by the county’s delay. Ultimately, the state Court of Appeals disallowed her lawsuit, saying it was filed too late. She now hopes the Supreme Court will hold the county responsible, which her attorneys contend would preserve property owners’ right to recover damages in such cases.

“A permit delayed is just as bad as a permit denied,” said David Himebaugh, the lead attorney in Birnbaum’s case for Pacific Legal Foundation, which is handling her lawsuit free of charge. “Property owners all over Washington may lose years of productive use of their property if government agencies are able to delay permitting without consequences.”

Pierce County disputes Birnbaum’s claims. The “unnecessary delays” alleged by her lawyers were caused by Birnbaum herself, said county spokesman Hunter George.

George didn’t comment further. He noted that because the Supreme Court hasn’t decided if it will review the case, “we feel it would be inappropriate” to dices current litigation.

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

“I was frustrated,” said Birnbaum about the illegally delayed process. “I could not move ahead on my plans to build the retreat.”

Himebaugh said 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. In April 2010, Birnbaum filed a lawsuit against the county for damages.

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, told her that she wasn’t eligible to recover damages caused by the delay, Himebaugh said.

In court arguments, the county contended that Birnbaum got the approval she sought, making her claim of unlawful delay void and that her lawsuit should be dismissed.

“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.”

If the Supreme Court decides not to take jurisdiction, the case will be over.

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

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