§ 16.4 - Damages

• Jurisdiction: Washington

§16.4 DAMAGES

Although the availability of damages against municipalities for actions in permitting decisions lies beyond the scope of this chapter, three potential remedies bear mention: Chapter 64.40 RCW, the federal Civil Rights Act, and compensation for regulatory takings. For additional detailed discussion of damages actions, see Chapter17 (Land Use Damages Actions —Project Delay, Conditions, Denial), of this deskbook.

(1) Chapter 64.40 RCW

The legislature enacted Chapter 64.40 RCW in 1982 to authorize the award of damages to private property owners for unlawful permitting decisions by local governments. The statute provides: "Owners of a property interest who have filed an application for a permit have an action for damages to obtain relief from acts of an agency which are arbitrary, capricious, unlawful, or exceed lawful authority, or relief from a failure to act within time limits established by law[.]" RCW 64.40.020(1). Thus, to recover damages under Chapter 64.40 RCW, a claimant must (1) have a property interest, (2) have filed an application for a permit, and (3) be the subject of an unlawful act. The term "act" is defined in part as

a final decision by an agency which places requirements, limitations, or conditions upon the use of real property in excess of those allowed by applicable regulations in effect on the date an application for a permit is filed. "Act" also means the failure of an agency to act within time limits established by law in response to a property owner's application for a permit.

RCW 64.40.010(6). A claim under Chapter 64.40 RCW is time barred unless pursued within 30 days of the conclusion of all administrative remedies. RCW 64.40.030. Under certain circumstances the conclusion of administrative proceedings may follow a successful LUPA appeal, a remand to the local...