Keep Watson Cutoff Rural v. KITTITAS COUNTY, LLC

184 P.3d 1278
CourtCourt of Appeals of Washington
DecidedJune 5, 2008
Docket26202-2-III
StatusPublished
Cited by7 cases

This text of 184 P.3d 1278 (Keep Watson Cutoff Rural v. KITTITAS COUNTY, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keep Watson Cutoff Rural v. KITTITAS COUNTY, LLC, 184 P.3d 1278 (Wash. Ct. App. 2008).

Opinion

184 P.3d 1278 (2008)

KEEP WATSON CUTOFF RURAL, Appellant,
Larry Fuller and Mary Fuller, Plaintiffs,
v.
KITTITAS COUNTY; Pine View Estates LLC, Respondents.

No. 26202-2-III.

Court of Appeals of Washington, Division 3.

June 5, 2008.

James Cortland Carmody, Velikanje Halverson PC, Yakima, WA, for Appellant.

Zera Holland Lowe, Attorney at Law, Ellensburg, WA, Robert Gray Dodge, Law Offices *1279 of Robert G. Dodge, PLLC, Wenatchee, WA, for Respondents.

THOMPSON, J.[*]

¶ 1 RCW 36.70C.070(4) requires a party filing a Land Use Petition Act (LUPA) petition to attach a copy of the decision being appealed to the petition. Here, the superior court dismissed Keep Watson Cutoff Rural's (KWCR) LUPA petition for noncompliance with this requirement. KWCR appeals, contending the superior court had jurisdiction to reach the merits of the petition because (1) KWCR attached copies of the decisions being appealed, (2) the statutory content and form requirements under RCW 36.70C.070(4) do not divest the superior court of jurisdiction if not met, and (3) KWCR substantially complied with the requirements of RCW 36.70C.070(4). We conclude that RCW 36.70C.070(4) is a procedural requirement, not a jurisdictional threshold requirement. Accordingly, we reverse.

FACTS

¶ 2 The Kittitas County Board of Commissioners (the County) signed Resolution No.2006-146 giving Pine View Estates LLC (Pine View) conditional approval to proceed with a cluster plot containing 14 lots. Approval was premised on the County's mitigated determination of nonsignificance (MDNS), which was issued in October 2006. On November 7, KWCR filed a LUPA petition for review of the County's issuance of the MDNS and its preliminary approval of the plat application in superior court. KWCR alleged there were three related proposed developments in the same entity and that Pine View had secured a favorable decision through misrepresentation and fraud, resulting in the County's failure to consider the cumulative effects of the proposed development.

¶ 3 KWCR served the statutorily required parties, but apparently failed to attach copies of the County's MDNS and plat approval decisions to the petition filed at the county, as required under RCW 36.70C.070. The court received copies of every other page of the attachments. However, the body of the petition referenced the two challenged land use decisions. The County filed a motion to dismiss, arguing that KWCR failed to meet the jurisdictional requirements of LUPA under RCW 36.70C.040 and .070 when it failed to attach a copy of the plat approval and the MDNS to its petition. In support of its motion, the County filed an affidavit from its auditor stating that it received the petition, but no attachments. Pine View joined the motion to dismiss.

¶ 4 At the hearing on the motion, KWCR responded that the failure to attach copies of the land use decisions was not a jurisdictional defect. It also questioned the veracity of the county auditor. It submitted an affidavit from Dawn Leite stating that she personally served the County records deputy auditor by leaving with her "a true and correct copy of a Summons directed at Kittitas County and a duplicate original of Petition for Review of Land Use Decision." Clerk's Papers (CP) at 163. However, the affidavit did not indicate whether the required documents were attached.

¶ 5 The superior court ultimately granted the motion to dismiss, concluding it lacked jurisdiction based on KWCR's failure to comply with LUPA service provisions. In a letter ruling, the court wrote:

Kittitas County is an indispensable party. RCW 36.70C.040. Petitioners were required to substantially comply with the statute to properly join the county as a party. Without the county this is not a valid LUPA petition. Petitioners failed to substantially comply with the statute. The county was not properly joined as a party. Consequently, the petition is not a valid LUPA petition.

CP at 15.

¶ 6 KWCR appeals.

ANALYSIS

¶ 7 The dispositive issue before us is whether KWCR's failure to attach copies *1280 of the County's two land use decisions to its LUPA petition is a defect divesting the superior court of jurisdiction to review the petition. When reviewing a superior court's decision on a land use petition, this court stands in the same position as the superior court. Lakeside Indus. v. Thurston County, 119 Wash.App. 886, 893, 83 P.3d 433 (2004). Jurisdictional issues and questions of statutory interpretation are questions of law subject to de novo review. Conom v. Snohomish County, 155 Wash.2d 154, 157, 118 P.3d 344 (2005); Reeves v. City of Wenatchee, 130 Wash.App. 153, 155-56, 121 P.3d 777 (2005).

¶ 8 An appeal from an administrative tribunal invokes the appellate jurisdiction of the superior court. The parties agree that all statutory procedural requirements must be met before the superior court's appellate jurisdiction is properly invoked. Skagit Surveyors and Eng'rs, LLC v. Friends of Skagit County, 135 Wash.2d 542, 554, 958 P.2d 962 (1998); Overhulse Neighborhood Ass'n v. Thurston County, 94 Wash.App. 593, 597, 972 P.2d 470 (1999). The parties also agree that a petitioner under LUPA must strictly comply with statutory filing and service requirements under RCW 36.70C.040. However, they disagree whether a petition's content requirements under RCW 36.70C.070 are jurisdictional or procedural.

¶ 9 RCW 36.70C.040 provides in part:

(1) Proceedings for review under this chapter shall be commenced by filing a land use petition in superior court.
(2) A land use petition is barred, and the court may not grant review, unless the petition is timely filed with the court and timely served. . . .

¶ 10 RCW 36.70C.070(1)-(9) sets out the nine required elements of a land use petition.

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Cite This Page — Counsel Stack

Bluebook (online)
184 P.3d 1278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keep-watson-cutoff-rural-v-kittitas-county-llc-washctapp-2008.