Opinion
No. 60005-2-I.
August 25, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 06-2-10006-7, Richard J. Thorpe, J., entered April 20, 2007.
Affirmed by unpublished opinion per Cox, J., concurred in by Schindler, C.J., and Lau, J.
UNPUBLISHED
At issue is whether a developer's affirmative defenses to this quiet title action bar a claim of adverse possession for land within the developer's preliminary plat of a subdivision. Because resolution of a claim for adverse possession is not within the scope of the statutory definition of a "land use decision" and there is no basis for equitable estoppel here, we affirm.
Charles and Miriam Shadle (the Shadles) own a residence in Mukilteo that they acquired in December 1992 from Miriam Shadle's parents. The parents had owned the residence since 1971.
In 2005, Kailash Development, LLC, (Kailash) purchased a parcel of property in Mukilteo that is adjacent to the Shadles' residence. The City of Mukilteo had given preliminary plat approval for a subdivision on the parcel prior to Kailash's purchase.
The preliminary plat included a 40-foot wide strip of land adjacent and west of the Shadle residence. It appears that Kailash intended to use the strip for access to its proposed development from the main street. This 40-foot strip is the subject of the Shadles' adverse possession claim in this quiet title action.
Prior to Kailash owning the parcel, the previous land owner received preliminary plat approval from the City of Mukilteo. In that process, the engineering firm of Ostergaard-Robinson and Associates provided engineering work for the development. The evidence at trial showed that David Ostergaard talked to neighbors regarding the proposed plat, showing them a map of the proposed development. Ostergaard talked with Charles Shadle. The trial court entered unchallenged findings regarding the communications between the two.
In the summer of 2005, Kailash commenced development of the proposed plat by clearing trees on the property. Grading and utility improvements began in spring 2006. Kailash excavated the sloped area between the Shadles' home and the paved street, changing the elevation of the road and cutting off the Shadles' access to their garage.
In July 2006, the Shadles commenced this quiet title action for adverse possession to the 40-foot strip adjacent to their residence. Kailash raised affirmative defenses, including the failure of the Shadles to timely file a petition under the Land Use Petition Act (LUPA) to contest the preliminary plat decision. Kailash also claimed the Shadles' claim was barred by equitable estoppel. Following a bench trial, the court quieted title in the Shadles to the strip. Kailash appeals.
LAND USE PETITION ACT
Kailash argues that the Shadles' adverse possession claim is barred because they did not timely appeal under LUPA the 2002 preliminary plat decision by the City. Specifically, Kailash argues that the Shadles had standing to appeal the platting decision under LUPA and failed to do so.
We need not address whether the Shadles had standing. The adverse possession claim asserted in this quiet title action is not within the scope of the definition of a "land use decision" under LUPA. Accordingly, we hold that the claim is not barred.
RCW 36.70C.020(1) defines a "land use decision" as:
[A] final determination by a local jurisdiction's body or officer with the highest level of authority to make the determination, including those with authority to hear appeals, on:
(a) An application for a project permit or other governmental approval required by law before real property may be improved, developed, modified, sold, transferred, or used, but excluding applications for permits or approvals to use, vacate, or transfer streets, parks, and similar types of public property; excluding applications for legislative approvals such as area-wide rezones and annexations; and excluding applications for business licenses;
(b) An interpretative or declaratory decision regarding the application to a specific property of zoning or other ordinances or rules regulating the improvement, development, modification, maintenance, or use of real property; and
(c) The enforcement by a local jurisdiction of ordinances regulating the improvement, development, modification, maintenance, or use of real property. However, when a local jurisdiction is required by law to enforce the ordinances in a court of limited jurisdiction, a petition may not be brought under this chapter.
Unchallenged findings are verities on appeal. We may affirm the trial court on any basis supported by the record.
Fuller v. Empl. Sec. Dep't, 52 Wn. App. 603, 606, 762 P.2d 367 (1988).
LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989).
Here, Kailash does not challenge the court's substantive decision regarding adverse possession. The trial court's unchallenged Finding of Fact 7 establishes that the Shadles satisfied all elements of adverse possession for the 40-foot strip adjacent to their property. Commencing at least by May 1972, Ernest and Darlene Miller (Miriam Shadle's parents) and then the Shadles possessed the area in dispute in an open and notorious manner. Their possession was actual and uninterrupted and of such a character as a true owner would make. Their possession was hostile, in that permission for use of the land was neither sought nor received. Possession was also exclusive and continuous for more than 10 years. Thus, the focus of this appeal is on whether the trial court erroneously rejected Kailash's affirmative defenses: failure to timely file a LUPA petition and equitable estoppel.
Turning first to the question of whether LUPA is implicated, the threshold issue is whether adverse possession claims are within the scope of a "land use decision," as defined by LUPA. Counsel fails to explain why or how an adverse possession claim falls within the plain words of the statutory definition of "land use decision." We conclude from our independent examination of the LUPA definition that a claim for adverse possession does not fall within the scope of the plain words "land use decision." Accordingly, the Shadles had no duty to file a LUPA petition for their adverse possession claim. The trial court properly rejected the affirmative defense based on LUPA, although we affirm that decision on different grounds.
Kailash argues that Asche v. Bloomquist supports the view that LUPA applies. We disagree.
132 Wn. App. 784, 133 P.3d 475 (2006), review denied, 159 Wn.2d 1005 (2007).
There, the Asches brought a nuisance and mandamus action against their neighbor and the county, respectively, to stop neighbors from building a house that impeded their view. They commenced the action five months after the building permit for the property was issued and two months after they first learned their view of Mt. Rainier would be blocked. Significantly, they argued in their lawsuit that the county had erroneously issued a building permit to the neighbors because of misapplication of the zoning ordinance that prescribed the calculations of the maximum allowable height of the structure.
Id. at 789.
Division Two of this court held that the Asches' claim was barred because they had standing under LUPA but failed to bring a timely petition for review of their neighbor's building permit. In reaching the standing issue, the court focused on the fact that the building permit was a type of land use decision under LUPA. Because the essence of the Asches' claim in the lawsuit was that the county had misapplied its zoning law and erroneously issued a building permit, the court went on to address whether the Asches had standing.
Id. at 796.
Here, it is uncontroverted that the Shadles did not contest the preliminary platting decision by the City of Mukilteo. Indeed, that is the basis on which Kailash asserts its affirmative defense that the Shadles should be barred from asserting an adverse possession claim in this action. Rather, the Shadles sought to quiet title to the 40-foot strip adjacent to their property based on their claim of adverse possession.
There is simply no authority for Kailash's implicit assertion that the City of Mukilteo could or did address any claim of adverse possession in the platting process. Only a court could have resolved an adverse possession claim.
Kailash also looks for support for its position inHalverson v. City of Bellevue. That case is of no help to Kailash.
41 Wn. App. 457, 704 P.2d 1232 (1985).
There, a developer filed a preliminary plat application for a residential development in 1978. In June 1979, Halverson commenced an action to quiet title to establish her ownership by adverse possession of a strip of land included in the plat. Halverson recorded a lis pendens and also notified the City by letter of her claim of ownership in regard to the plat application.
Id. at 458.
Id.
The City granted preliminary plat approval in August and final plat approval in September 1979. The City then issued a building permit for work to begin, including work on the disputed land. In response, Halverson instituted a writ of certiorari proceeding to challenge the validity of the plat. In a separate trial, Halverson prevailed on her claim of adverse possession in an action to quiet title.
Id.
Id.
Id.
The trial court in Halverson set aside the plat. This court affirmed, noting that "[b]ecause the merit of an adverse possession claim cannot be determined by the city prior to adjudication, caution in approving plats in such cases is warranted."
Id.
Id. at 460.
There, this court noted that applicable land use statutes did not address the question of how a local jurisdiction should proceed when final plat approval is pending and the ownership of a portion of the property to be platted is in dispute. It interpreted the applicable platting statute to require that questions of ownership of the subdivided land must be resolved before plat approval is granted. It held that once the City was on notice of Halverson's claim, approval of the plat as submitted was improper. Thus, it was proper for the trial court in that case to set aside the plat.
Id. at 459.
Id. at 460.
Halverson does not support any of Kailash's arguments on appeal. Significantly, it does not stand for the proposition, as Kailash suggests, that an adverse possession claim is barred if it is not timely asserted or if it is not asserted before preliminary plat approval is received. Moreover, theHalverson court did not address whether LUPA applied because that statute was not then in existence.
EQUITABLE ESTOPPEL
Kailash next argues that the Shadles are equitably estopped from bringing their adverse possession claim. We also reject this affirmative defense.
Equitable estoppel is based on the view that "a party should be held to a representation made or position assumed where inequitable consequences would otherwise result to another party who has justifiably and in good faith relied thereon." Equitable estoppel requires: (1) an admission, statement, or act inconsistent with the claim afterwards asserted; (2) an action by the other party on the faith of such admission, statement, or act; and (3) an injury to the other party if the claimant is allowed to contradict or repudiate his earlier admission, statement, or act.
Lybbert v. Grant County, 141 Wn.2d 29, 35, 1 P.3d 1124 (2000) (quoting Kramarevcky v. Dep't of Social Health Servs., 122 Wn.2d 738, 743, 863 P.2d 535 (1993) (internal quotation omitted)).
Liebergesell v. Evans, 93 Wn.2d 881, 888-89, 613 P.2d 1170 (1980).
"Title to real property is a most valuable right which will not be disturbed by estoppel unless the evidence is clear and convincing."
Thomas v. Harlan, 27 Wn.2d 512, 518, 178 P.2d 965 (1947).
Whether equitable estoppel applies is a question of law, which we review de novo.
Bank of America v. Prestance Corp., 160 Wn.2d 560, 564, 160 P.3d 17 (2007).
Here, Kailash fails to establish essential elements of its equitable estoppel claim. Significantly, Kailash points to no prior admission, statement, or act by the Shadles that is inconsistent with the quiet title claim they now bring.
Kailash argues only that the Shadles had notice that the 40-foot strip of land would be used for access to the new development, and that their silence in not opposing the plat amounted to acquiesce by silence. The case law Kailash cites does not support its position.
"In order to raise an estoppel by acquiescence the party estopped must have been aware of his own rights and have perceived that the other party was acting on a mistaken notion of his rights."
DeBoe v. Prentice Packing Storage Co., 172 Wash. 514, 521, 20 P.2d 1107 (1933).
Here, there is no estoppel by acquiescence. Substantial evidence supports the trial court's Finding of Fact 16 that the Shadles did not have notice that the 40-foot strip of land would be used in a manner inconsistent with their current use of it or that the grade of the existing road would be lowered. Kailash points to no evidence that the Shadles knew they had adversely possessed the disputed land by September 2002 when the City's hearing examiner held a public hearing, or even by 2006 when excavation occurred. Moreover, Kailash points to no evidence proving the Shadles knew about the location and nature of the road for Kailash Heights and how it would affect their use of the disputed property.
Finally, we note that estoppel is an equitable remedy. Here, title to the disputed strip vested in the Shadles long before the platting decision. The activities and the governing 10-year period elapsed well before the City granted preliminary plat approval. On this record, it would be inequitable to deny the Shadles the right to quiet title in the strip by this court action.
See Halverson, 41 Wn. App. at 460 (Title by adverse possession vests when all the elements of the claim are fulfilled, not when the quiet title action is commenced.).
We affirm the trial court's judgment.
WE CONCUR: