Frances Ceraolo v. Victor Strand, et ux

Opinion

FILED

AUGUST 25, 2026

In the Office of the Clerk of Court WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

FRANCES CERAOLO, a single person, ) No. 41101-0-III ) (consolidated with Appellant, ) No. 41102-8-III)

)

v. )

)

VICTOR STRAND and JANE DOE ) STRAND and the marital community ) composed thereof, and ATLAS TOWER 1 ) UNPUBLISHED OPINION LLC, a Foreign Limited Liability ) Company (Colorado), BUSINESS ) FILING INCORPORATED, Agent, and ) KITTITAS COUNTY, a municipal ) corporation and political subdivision of ) the State of Washington, )

)

Respondents. )

LAWRENCE-BERREY, J. — Frances Ceraolo appeals the trial court’s summary judgment orders dismissing her two complaints in separate cause numbers—one for damages and the other for injunctive/declaratory relief. To the extent Ceraolo raises the same arguments she raised to the trial court, we affirm. To the extent she raises arguments she did not raise to the trial court, we decline to address them.

Ceraolo v. Strand

FACTS

Atlas Tower 1, LLC (Atlas Tower), applied for an administrative conditional use permit to Kittitas County Community Development Services (KCCDS) for a 100-foot wireless communication tower on Victor Strand’s land. Several homeowners in the area of the proposed tower opposed the application and notified KCCDS of their concerns. KCCDS approved the application.

Frances Ceraolo filed an administrative appeal challenging KCCDS’s approval of the tower permit. She asserted the tower would ruin her view and was inappropriate in the rural setting.

A Kittitas County (County) hearing examiner conducted a hearing on Ceraolo’s appeal. The examiner determined the proposed tower was allowed by the County’s comprehensive land use plan, KCCDS exercised due diligence when it considered and approved the application, and KCCDS had correctly determined that the criteria set forth in KCC 17.60A.015 had been satisfied. The examiner also determined that the tower was a utility as defined by the County’s code. Based on the above, the examiner denied Ceraolo’s appeal.

Ceraolo then filed a petition to review the hearing examiner’s decision under the Land Use Petition Act (LUPA), chapter 36.70C RCW. The petition named Strand, Atlas

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Ceraolo v. Strand

Tower, and KCCDS as defendants. Ceraolo asserted the examiner’s decision erroneously interpreted the law, was not supported by substantial evidence, and was an erroneous application of the law to the facts. Specifically, Ceraolo asserted the examiner erred when it determined that (1) the tower was a utility under the County code, (2) the tower application was properly submitted as an administrative conditional use permit, and (3) KCCDS exercised due diligence when it approved the permit.

While her LUPA petition was pending, Ceraolo filed two separate complaints against the County, Strand, and Atlas Tower. The first complaint sought damages, and the second complaint sought injunctive/declaratory relief. In her damages complaint, Ceraolo asserted that the defendants breached a duty of care by failing to protect the value of her property. In her injunctive/declaratory action, she asserted, “[t]his action challenges [KCCDS’s] Notice of Decision Atlas Tower ACU Appeal ACU-23-00003.” Clerk’s Papers (CP) at 5. She then more specifically asserted actions under RCW 36.70C.130(b), (c), (d), (f) and RCW 34.05.570(3)(f), (h) and described the purported errors KCCDS and the hearing examiner committed during the permit approval process. These errors were the same errors she alleged in her LUPA petition.

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Ceraolo v. Strand

Proceedings in the LUPA matter The defendants moved to dismiss Ceraolo’s LUPA petition. They argued that Ceraolo failed to timely serve the Kittitas County Auditor as required by LUPA. The trial court agreed and granted the defendants’ motion. Ceraolo did not appeal the trial court’s dismissal of her LUPA petition.

Proceedings in the current matters The defendants filed summary judgment motions to dismiss both the damages complaint and the injunctive/declaratory complaint. In their motions, the defendants generally argued that Ceraolo’s complaints were improper collateral attacks on the dismissed LUPA petition.

In response to the summary judgment motion of her damages complaint, Ceraolo cited RCW 36.70C.030(c) and argued her damages complaint was permitted as an exception to LUPA’s exclusive remedy rule. Ceraolo also argued she was entitled to nuisance damages because “[a]n erroneous interpretation of the law occurred” when the trial court dismissed her LUPA petition. CP at 215.

In response to the summary judgment motion of her injunction complaint, Ceraolo argued the hearing examiner’s decision was not a final decision, the tower was not a utility, and the examiner violated the appearance of fairness doctrine.

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Ceraolo v. Strand

The trial court granted the defendants’ motions for summary judgment on both complaints. Ceraolo filed notices of appeal for both summary judgment orders. We then consolidated the appeals.

ANALYSIS

Ceraolo argues the trial court erred in dismissing her complaints on summary judgment. Before we address the merits of her arguments, we set forth the governing standards of our review.

Standards of summary judgment review We review summary judgment orders de novo and perform the same inquiry as the trial court. Borton & Sons, Inc. v. Burbank Props., LLC, 196 Wn.2d 199, 205, 471 P.3d 871 (2020). Summary judgment is appropriate when the pleadings, discovery materials, and any affidavits show no genuine dispute of material fact, and the moving party is entitled to judgment as a matter of law. CR 56(c). “A material fact is one that affects the outcome of the litigation.” Owen v. Burlington N. Santa Fe R.R. Co., 153 Wn.2d 780, 789, 108 P.3d 1220 (2005). A material fact issue is genuine if the evidence allows a reasonable trier of fact to return a verdict for the nonmoving party. Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015).

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Ceraolo v. Strand

Here, the trial court issued two summary judgment orders—one dismissing Ceraolo’s damages complaint and the other dismissing her injunctive/declaratory relief complaint. We first examine the appropriateness of these dismissals based on the arguments Ceraolo raised to the trial court and on appeal. We then explain why we decline to review Ceraolo’s new arguments on appeal.

A. THE TRIAL COURT PROPERLY DISMISSED BOTH COMPLAINTS 1. Ceraolo’s damages complaint In their summary judgment motion, the defendants argued that Ceraolo’s damages complaint was an improper collateral attack on the dismissed LUPA petition, and LUPA was the exclusive means of judicial review of a land use decision. Ceraolo responded by arguing that a claim for damages is an exception to the general rule. We agree with Ceraolo that a damages exception exists, but we nevertheless conclude that the trial court properly dismissed her damages complaint.

RCW 36.70C.030(1) states in part, “This chapter . . . shall be the exclusive means of judicial review of land use decisions.” It then excepts from the chapter various matters, including “[c]laims provided by any law for monetary damages or compensation.” RCW 36.70C.030(1)(c). This damages exception applies when a party seeks compensation rather than a reversal or modification of a land use decision.

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Ceraolo v. Strand

Lakey v. Puget Sound Energy, Inc., 176 Wn.2d 909, 928, 296 P.3d 860 (2013). But if a party needs to show that the permit was invalid to succeed on their damages claim, the claim is an attack on a land use decision and is barred by LUPA. Lakey, 176 Wn.2d at 926 n.11 (citing Asche v. Bloomquist, 132 Wn. App. 784, 801, 133 P.3d 475 (2006)).

In her summary judgment response, Ceraolo argued she was entitled to relief because her LUPA petition was dismissed improperly and because the hearing examiner improperly determined that the tower was a utility. Her argument that the LUPA petition was dismissed improperly is an attack on the land use decision and is barred by LUPA. Her argument that the hearing examiner erred by determining that the tower was a utility also is an attack on the land use decision and is barred by LUPA. We conclude that the trial court properly dismissed her damages complaint.

2. Ceraolo’s injunctive/declaratory relief complaint Our next question is whether the trial court properly granted the defendants’

summary judgment on Ceraolo’s injunctive/declaratory relief complaint.

In their summary judgment motion, the defendants argued that Ceraolo’s attempt to enjoin the placement of the tower near her property was a collateral attack on the dismissed LUPA action. To overcome the County’s collateral attack argument, Ceraolo had to show that her request for injunctive/declaratory relief was not dependent on the

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Ceraolo v. Strand

legality of the land use decision. In her summary judgment response, Ceraolo instead argued she was entitled to relief because the hearing examiner’s decision was not final (in that she had challenged the decision in her LUPA appeal), and the examiner violated the appearance of fairness doctrine.

LUPA is the exclusive process for judicial review of land use decisions.

RCW 36.70C.030(1). A “land use decision” is “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.” RCW 36.70C.020(2). An unappealed land use decision “becomes final and binding and is deemed valid and lawful.” Mercer Island Citizens for Fair Process v. Tent City 4, 156 Wn. App. 393, 399, 232 P.3d 1163 (2010). Accordingly, “‘even illegal decisions must be challenged in a timely, appropriate manner.’” Id. (quoting Habitat Watch v. Skagit County, 155 Wn.2d 397, 407, 120 P.3d 56 (2005)).

Here, Ceraolo sought injunctive/declaratory relief on the grounds that (1) the hearing examiner’s decision was not final, and (2) the examiner violated the appearance of fairness doctrine. As noted above, the inappropriately appealed permit decision became final and binding and is deemed lawful. For this reason, we reject Ceraolo’s first argument. As also noted above, even an illegal permit decision—such as a decision made

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Ceraolo v. Strand

by an unfair hearing examiner—is also a final binding decision that is deemed lawful. For this reason, we reject Ceraolo’s second argument. We conclude that the trial court properly dismissed her injunctive/declaratory action complaint.

B. OUR REVIEW OF A SUMMARY JUDGMENT ORDER IS LIMITED RAP 9.12 sets forth a special rule that applies to appellate review of summary judgment orders. Relevant here, RAP 9.12 states, “On review of an order granting or denying a motion for summary judgment the appellate court will consider only . . . issues called to the attention of the trial court.” More plainly, when reviewing summary judgment orders, we do not consider arguments raised for the first time on appeal. Johnson v. Lake Cushman Maint. Co., 5 Wn. App. 2d 765, 780, 425 P.3d 560 (2018). The rule’s purpose is to fulfill our role of engaging in the same inquiry as the trial court. Wolf v. State, 2 Wn.3d 93, 109, 534 P.3d 822 (2023).

We have examined the various arguments Ceraolo raises on appeal. Her arguments are either addressed by the exclusive remedy rule explained in part A or are new arguments that we decline to review in accordance with RAP 9.12.

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Ceraolo v. Strand

C. ATTORNEY FEE SANCTIONS The defendants argue that Ceraolo’s appeal is frivolous, and they should be awarded attorney fee sanctions under RAP 18.1 and RAP 18.9. We disagree.

RAP 18.1 allows a party to recover attorney fees or expenses if an applicable law grants that right. RAP 18.9(a) authorizes attorney fee sanctions on appeal if a party files a frivolous appeal. An appeal is “frivolous” for purposes of this rule if considering the record as a whole, there are no debatable issues on which reasonable minds might differ, and it is so totally devoid of merit that there is no reasonable possibility of reversal. Ames v. Ames, 184 Wn. App. 826, 857, 340 P.3d 232 (2014). We resolve all doubts of whether an appeal is frivolous in the appellant’s favor. Id.

Ceraolo argued that the claims raised in her complaints were not preempted by LUPA and correctly cited the controlling statute. Our determination that her claims were preempted required a close reading of her various assertions. We resolve the doubt of frivolousness in Ceraolo’s favor and decline to award attorney fee sanctions.

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Ceraolo v. Strand

Affirmed.

A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

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Lawrence-Berrey, J.

WE CONCUR:

______________________________ _________________________________ Staab, C.J. Cooney, J.