GAYLORD v. SNOHOMISH CTY., 46663-1-I (Wash.App. 11-26-2001)

No. 46663-1-I.The Court of Appeals of Washington, Division One.
Filed: November 26, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Snohomish County, No. 98-2-09387-9, Hon. George Bowden, April 20, 2000, Judgment or order under review.

Counsel for Appellant(s), Kinnon W. Williams, Williams Williams, 6161 N.E. 175th St Ste 205, Kenmore, WA 98028-4800.

Catherine C. Clark, Williams Williams Psc, 6161 N.E. 175th St Ste 205, Kenmore, WA 98028-4800.

Kinnon W. Williams, Williams Williams, 6161 N.E. 175th St Ste 205, Kenmore, WA 98028-4800.

Catherine C. Clark, Williams Williams Psc, 6161 N.E. 175th St Ste 205, Kenmore, WA 98028-4800.

Counsel for Respondent(s), Blair B. Burroughs, Lawler Burroughs Baker, 999 3rd Ave Ste 4750, Seattle, WA 98104.

Tim Dore, P.O. Box 3326, Bellevue, WA 98009.

Robert T. Seder, 2918 Colby Ave, Everett, WA 98201-4011.

FAYE C. KENNEDY, J.

James and Marilyn Gaylord appealed the summary judgment dismissing their declaratory judgment action against Snohomish County and others, in which they sought an order declaring that they were not required to seek amendment of the plat for Meadowdale Park Estates as a condition of developing an easement to provide road access to a piece of undeveloped property that they owned in an abutting plat (Meadowdale Beach). The Gaylord’s parcel had no access, and the only means by which they could gain access was an easement leading from a cul-de-sac in Meadowdale Park Estates that would run along the property line between Lots 4 and 5 of that subdivision (which are owned by Respondents Mamolen/Kobayashi and Taylor).

The Gaylords obtained an `easement for future access’ which appeared on the preliminary plat for Meadowdale Park Estates.

As a condition of approving the preliminary plat, Snohomish County required the removal of the Gaylord’s easement, based on environmental concerns (the easement would have cut across a Native Growth Protection Area). The Gaylords appealed the condition to a hearing examiner, who affirmed the condition. The Gaylords then appealed to the County Council, which also approved the condition, noting specifically that the preliminary plat that was granted eliminated the easement for future access. The Gaylords did not appeal this decision.

The developer was allowed to make some minor revisions to the preliminary plat. When the County next reviewed the preliminary plat it found that the easement for future access was still there. The County wrote to the developer’s engineer, pointing out that elimination of the easement was not a minor issue but was a specific condition of the County Council’s approval of the preliminary plat. The engineer submitted a revised preliminary plat on which the easement had been eliminated. The County Council’s motion approving this revised preliminary plat noted specifically that the easement for future access had been eliminated. The final plat was filed with the auditor on October 9, 1991. The easement was not on it.

Five days later, Mr. Gaylord, without giving notice to anyone, filed a document purporting to put the easement back in place. Then, in August 1995, the Gaylords tried to obtain a building permit for their lot. The easement problem was quickly flagged, and in 1997 the County determined that the easement was invalid. No building permit was issued. The Gaylords did not appeal these decisions.

The Gaylords filed their declaratory judgment action in December 1999, seeking a determination that they could develop their easement without being required to seek amendment of the plat of Meadowdale Park Estates. On April 20, 2000, the Snohomish County Superior Court denied the Gaylords’ request for summary judgment, granted the respondents’ counter-motion for summary judgment and entered an order quieting title to the individual respondents’ respective properties.

The Gaylords appealed to this court. The County responded and asked for an award of its attorney fees under RCW 4.84.370. The appeal was scheduled for oral argument on April 16, 2001. On April 11, 2001, the Gaylords notified this court that they had sold their property, and moved to dismiss their appeal, leaving the County’s request for attorney fees as the only remaining issue.[1]

We granted the Gaylords’ motion to dismiss their appeal, struck the case from the oral argument calendar and issued an order directing the County and the Gaylords to submit supplemental briefing on the question of whether the County is a prevailing party within the meaning of RCW 4.84.370 that is, did the Gaylords appeal a decision by the county to issue, condition or deny a development permit involving a plat or similar land use approval.

DISCUSSION.
We hold that the County is not entitled to fees under RCW 4.84.370, which reads in its entirety:

(1) Notwithstanding any other provisions of this chapter, reasonable attorneys’ fees and costs shall be awarded to the prevailing party or substantially prevailing party on appeal before the court of appeals or the supreme court of a decision by a county, city, or town to issue, condition, or deny a development permit involving a site-specific rezone, zoning, plat, conditional use, variance, shoreline permit, building permit, site plan, or similar land use approval or decision. The court shall award and determine the amount of reasonable attorneys’ fees and costs under this section if: (a) The prevailing party on appeal was the prevailing or substantially prevailing party before the county, city, or town, or in a decision involving a substantial development permit under chapter 90.58 RCW, the prevailing party on appeal was the prevailing party or the substantially prevailing party before the shoreline[s] hearings board; and (b) The prevailing party on appeal was the prevailing party or substantially prevailing party in all prior judicial proceedings. (2) In addition to the prevailing party under subsection (1) of this section, the county, city, or town whose decision is on appeal is considered a prevailing party if its decision is upheld at superior court and on appeal. [1995 c 347 § 718].

RCW 4.84.370 (italics ours).

The Gaylords did not appeal a land use decision by the County. Although it may appear to be elevating form over substance to characterize the Gaylords’ declaratory judgment action as anything other than an untimely appeal, through the back door as it were, of the County’s earlier decisions regarding their easement, we are bound by the plain language of the statute to deny the County’s request.

WE CONCUR: BAKER, J., COX, J.