HELLER v. WILLIAM, 136 Wn. App. 1022 (2006)

No. 56722-5-I.The Court of Appeals of Washington, Division One.
December 18, 2006.

Appeal from judgments of the Superior Court for King County, No. 01-2-16316-7, Helen Halpert, J., entered July 13 and August 23, 2005.

Reversed by unpublished opinion per Ellington, J., concurred in by Grosse and Baker, JJ.

Counsel for Appellant/Cross-Respondent, John Richard Aramburu, Attorney at Law, Seattle, WA, 98104-1138.

Counsel for Respondent/Cross-Appellant, Robert D. Johns, Johns Monroe Mitsunaga PLLC, Bellevue, WA, 98004-6969.

Counsel for Other Parties, Bruce Laurence Disend, Kenyon Disend Law Firm Issaquah, WA, 98027-3820.

Peter Thomas Connick, Law Office of Peter T. Connick, Seattle, WA, 98104-2588.

ELLINGTON, J.

Appellate review of land use decisions is available only through the procedures outlined in the Land Use Petition Act (LUPA), chapter 36.70C
RCW. Here, in ruling on a LUPA appeal, the superior court remanded a preliminary plat approval for further proceedings, and retained jurisdiction. After the hearing examiner ruled on remand, the parties failed to perfect a new LUPA petition. The remanding court took review of the new ruling under its retained jurisdiction. This procedure does not accord with the statute, and we reverse the superior court’s exercise of continuing jurisdiction, vacate the judgment, and reinstate the hearing examiner’s ruling.

BACKGROUND
Landowners William Buchan Homes, Inc. and Holli Beeler (collectively, Buchan) applied to divide three lots comprising 35.42 acres into a 35 lot development for single family homes, to be known as Chestnut Lane. In 1997, they filed a preliminary plat application with the City of Sammamish (the City), which was deemed complete in 2000.

The application was challenged by the appellants here, which include neighboring landowner Walter Pereyra and the citizens’ group Friends of Pine Lake (collectively, FOPL). After a hearing that occupied 2days over a six month period, the City’s hearing examiner issued a decision in March 2001 approving the preliminary plat subject to conditions, and affirming the City’s Mitigated Determination of Non-Significance under the State Environmental Policy Act (SEPA), chapter 43.21C RCW.

Among the examiner’s rulings was the conclusion that the proposed development is not subject to the stringent regulations of the SO-190 overlay, which is a special district legislated by King County[1]
designating areas particularly susceptible to erosion hazards endangering sensitive water bodies. The examiner opined, however, that if the overlay did apply, the proposed drainage system would not satisfy its requirements.

FOPL timely filed a petition under LUPA. On April 23, 2002, the superior court ruled that SO-190 applies to the project, and remanded with instructions to apply the SO-190 overlay and to reconsider SO-190’s effect on the SEPA compliance. Anticipating changes to the plat proposal on remand, the court declined to reach the other issues and remanded them as well,[2] as more appropriately addressed by the hearing examiner in the context of the revised proposal. The order also stated: “Pursuant to RCW 36.70C.140 the Court retains jurisdiction over implementation of this Order and further proceedings.” Clerk’s Papers at 659.

Buchan submitted an identical plat proposal on remand. The hearing examiner conducted hearings in July and August 2004. In a November 3, 2004 decision, the examiner applied the SO-190 overlay to the Chestnut Lane plat, as directed by the superior court, but in a significant departure from his first ruling, found that Buchan’s proposal satisfies the SO-190 requirements. The examiner imposed one additional mitigation condition for SEPA compliance, and otherwise left intact his prior rulings that the plat complies with the Surface Water Design Manual and Sensitive Areas ordinance, and designating tract N a “reserve” tract for possible future development. After motions for reconsideration, the examiner made minor amendments to the decision in a December 3, 2004 ruling.

Both FOPL and Buchan filed new LUPA petitions within 21 days, as required by RCW 36.70C.040. Neither party timely served the City, however, and both petitions were dismissed with prejudice on February 14, 2005. See RCW 36.70C.040. Two days later, FOPL filed a motion with the judge who ordered the remand, requesting that the court exercise the jurisdiction it retained in the remand order to review the new ruling by the examiner. The court granted the motion, ruling that no new LUPA petition was required because the issues were adequately presented in the initial 2001 LUPA petition. Ultimately, the court affirmed the hearing examiner’s approval of the preliminary plat.

FOPL and Pereyra appeal affirmance of the preliminary plat approval. Buchan cross-appeals the court’s exercise of continuing jurisdiction. The cross-appeal is dispositive.

DISCUSSION
LUPA was enacted to provide timely judicial review of land use decisions. RCW 36.70C.010; Habitat Watch v. Skagit County, 155 Wn.2d 397, 406, 120 P.3d 56 (2005). With limited exceptions not relevant here,[3] a LUPA petition is “the exclusive means” to appeal any “land use decision,” which is defined 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]n application for a project permit or other governmental approval required by law before real property may be improved, developed, modified, sold, transferred, or used. . . .” RCW 36.70C.030(1) (emphasis added); James v. Kitsap County, 154 Wn.2d 574, 583, 115 P.3d 286 (2005); RCW 36.70C.020(1).

Judicial review must be initiated by filing a land use petition within 21 days of issuance of a land use decision. RCW 36.70C.040(3). Unless the petition is timely filed and served, review is barred. RCW 36.70C.040(2). Courts give strict enforcement to LUPA appeal procedures to honor strong policies favoring finality in land use decisions and security for landowners proceeding with property development. Samuel’s Furniture, Inc. v. Dep’t. of Ecology, 147 Wn.2d 440, 458, 54 P.3d 1194
(2002); Chelan County v. Nykreim, 146 Wn.2d 904, 931, 52 P.3d 1 (2002); Skamania County v. Columbia River Gorge Comm’n, 144 Wn.2d 30, 49, 26 P.3d 241 (2001).

There is no dispute that the examiner’s rulings on the Chestnut Lane plat application are land use decisions. There is also no dispute that the hearing examiner fully complied with the remand order. He conducted four days of hearing, heard new evidence, applied the SO-190 overlay to the plat, entered 3new findings of fact, reconsidered his conclusions under SEPA, and imposed an additional SEPA-based mitigating condition.

Thus we are not faced with a question of the court’s supervision or implementation of its remand order. Rather, the question is whether the 2002 remand order operated to preserve the 2001 LUPA petition, such that after remand, no new petition was required to initiate review.

In accepting review, the trial court relied upon its April 2002 remand order, which invoked RCW 36.70C.140: “Pursuant to RCW 36.70C.140 the Court retains jurisdiction over implementation of this Order and further proceedings.” Clerk’s Papers at 659 (emphasis added). RCW 36.70C.140 is a general provision affording reviewing courts broad authority in administration of LUPA appeals:

The court may affirm or reverse the land use decision under review or remand it for modification or further proceedings. If the decision is remanded for modification or further proceedings, the court may make such an order as it finds necessary to preserve the interests of the parties and the public, pending further proceedings or action by the local jurisdiction.

It is plain that the legislature intended to provide the reviewing court with means to address exigencies or to maintain the status quo pending remand. A generous reading might permit the reviewing court to hold a petition in abeyance while the hearing examiner conducts further proceedings on a particular issue. But the court remanded all issues to the examiner.[4] Nothing in the statute suggests the reviewing court retains jurisdiction over proceedings after a wholesale remand.[5] “Just as an appellate court loses jurisdiction upon remand to the trial court, a superior court reviewing action of an administrative agency loses jurisdiction upon remand to the agency.” Pierce County Sheriff v. Civil Serv. Comm’n, 98 Wn.2d 690, 695, 658 P.2d 648
(1983) (citing Reeploeg v. Jensen, 81 Wn.2d 541, 546, 50 P.2d 99 (1972)).

FOPL points out that on remand, Buchan submitted an identical application to that considered in the first round, and thus contends no new petition was necessary because both appeals presented the same issues. But LUPA requires “[a] separate and concise statement of each error alleged to have been committed” and “a concise statement of facts upon which the petitioner relies to sustain the statement of error.” RCW 36.70C.070(7) — (8). A petition is not merely a procedural hurdle to preserve issues for appeal, but is to be narrowly tailored to the issues. and should highlight the particular assigned errors to the reviewing court. See Samuel’s Furniture, 147 Wn.2d at 454-55 (citing Tunstall v. Bergeson, 141 Wn.2d 201, 211, 5 P.3d 691 (2000) (statutes should be interpreted in a manner that reconciles conflicting provisions and that is consistent with its stated goals); City of Seattle v. Fontanilla, 128 Wn.2d 492, 498, 909 P.2d 1294 (1996) (an act must be construed as a whole)). FOPL’s second appeal challenged the adequacy of the conditions imposed on remand. Nothing in the LUPA petition could have addressed that issue. The errors identified in the 2001 petition thus did not present for review the particular errors claimed in the 2004 decision.

In short, a new LUPA petition was necessary to confer appellate jurisdiction upon the court, and the absence of such a petition is fatal to FOPL’s challenge to the examiner’s ruling. “Where statutes prescribe procedures for the resolution of a particular type of dispute, [our] courts have required substantial compliance or satisfaction of the spirit of the procedural requirements before they will exercise jurisdiction over the matter.” James v. County of Kitsap, 154 Wn.2d 574, 588, 115 P.3d 286 (2005).

Our holding on this issue renders moot all other issues except Buchan’s claim for attorney fees.

Attorney Fees. Under RCW 4.84.370, a party appealing a land use decision who has prevailed in all prior judicial proceedings is entitled to an award of attorney fees incurred before the Court of Appeals. RCW 4.84.370(1). Buchan was the substantially prevailing party before the hearing examiner (preliminary plat approved). Buchan also prevails here. Prekeges v. King County, 98 Wn. App. 275, 284-85, 990 P.2d 405 (1999). Buchan did not, however, prevail in the original LUPA appeal, because the court reversed the examiner’s decision that SO-190 did not apply. This ruling led to the remand and to an award of costs and fees to FOPL (which the court declined to set aside after its second review in 2004). The fact that Buchan prevailed in the second superior court appeal (despite the court’s lack of jurisdiction to entertain it) gives some force to Buchan’s request for fees, as does Buchan’s ultimate success. But the statute is clear: fees are awardable only to a party that substantially prevails at every level of proceedings. Buchan did not prevail in the only LUPA appeal properly filed, and at that point lost its chance for fees.

We reverse the superior court and reinstate the examiner’s ruling in full.