Actions for damages from governmental actions impacting real property interests
When a governmental agency acts unlawfully or in excess of lawful authority flowing from an application for a permit, even if it should have reasonably been known to be unlawful or in excess of its authority, if the agency acts arbitrarily or capriciously, an owner of the affected property interest may have an action for damages. The party would seek judicial relief under the Administrative Procedure Act as “other agency action” that falls “[o]utside the statutory authority of the agency” essentially. The claim must be brought within thirty (30) days after all administrative remedies have been exhausted or where the relief granted by the administrative remedy is inadequate. Of course, there are many elements to unpack, the least of which is when an agency’s relief may be “inadequate.” Essentially there must be a process in place with the agency that would allow reversal of its action, to essentially be able to correct its own mistakes. If there is no process in place, such as the right to an administrative hearing, then it will not matter whether administrative remedies were per see exhausted. However, most agencies do have such processes available—it would likely only be an issue with an agency with very novel or undeveloped WAC anymore, but it is possible. A “permit” means any governmental approval required by law before an owner of a property interest may improve, sell, transfer, or otherwise put the real property to use. Typical examples are permits for development but there are many types of uses of real property that must be permitted before a property owner can proceed with the use, which can be more than zoning or development—if you must seek agency approval before proceeding with specific use of your property, even unconventional, it may technically be a permit even if unconventional. You can also see that the party with the property interest must also have been the party seeking the permit—they must be one and the same. There are other issues to consider more fully. The prevailing party may be entitled to reasonable costs and attorney’s fees, so you will want to have the advice to know the likelihood of prevailing in a given situation to avoid the risk of costs and/or fees being awarded to the governmental agency against you.
RCW 34.10.010
RCW 64.40.020
RCW 34.10.030
RCW 34.05.570(4)
Brower v. Pierce Cty., 96 Wn. App. 559, 564, 984 P.2d 1036, 1039 (Div. I, 1999)
Smoke v. City of Seattle, 132 Wash.2d 214, 226, 937 P.2d 186, 191 (1997)
Westway Const., Inc. v. Benton Cty., 136 Wn. App. 859, 866, 151 P.3d 1005, 1009 (Div. III, 2006)