Leer v. WHATCOM COUNTY BOUNDARY REVIEW BD.

957 P.2d 251
CourtCourt of Appeals of Washington
DecidedMay 18, 1998
Docket38811-8-I
StatusPublished
Cited by2 cases

This text of 957 P.2d 251 (Leer v. WHATCOM COUNTY BOUNDARY REVIEW BD.) 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
Leer v. WHATCOM COUNTY BOUNDARY REVIEW BD., 957 P.2d 251 (Wash. Ct. App. 1998).

Opinion

957 P.2d 251 (1998)

Gary LEER and Joseph Mills, Appellants,
Conrad Leer, Plaintiff,
v.
WHATCOM COUNTY BOUNDARY REVIEW BOARD and the City of Blaine, Respondents.

No. 38811-8-I.

Court of Appeals of Washington, Division 1.

May 18, 1998.

*252 Rolf G. Beckhusen, Bellingham, for Appellants.

John C. Belcher, Belcher Swanson Lackey Doran Lewis Robertson, Jack Oscar Swanson, Voris Belcher Swanson & Lackey, Karn Frakes, Deputy Prosecuting Attorney, Whatcom County Prosecutor's Office, Bellingham, for Respondents.

GROSSE, Judge.

A boundary review board's jurisdiction does not arise from an annexation petition, but instead arises from the filing of a notice of intention under RCW 36.93.090. As a result, the sufficiency of the annexation petition in the City of Blaine's proposed annexation of the East Blaine Area is not a jurisdictional issue. And because the validity of the petition was not considered by the Washington State Boundary Review Board for Whatcom County, RCW 36.93.160 precludes review of this issue as well as several other contentions made by Gary Leer and Joseph Mills (collectively referred to as Leer) for the first time on appeal.

FACTS

The Blaine City Council approved for circulation a petition for annexation of the East Blaine Area, a two and one-half mile long, half mile wide area directly east of the city. The western one-fourth of the land is somewhat urbanized, consisting primarily of two housing subdivisions, and the eastern three-fourths is rural. The Blaine City Clerk certified that the petition's signatures represented in excess of 60 percent of the property value in the area, and the City of Blaine *253 submitted a Notice of Intention and Request for Review with the Whatcom County Boundary Review Board (Board) in accordance with RCW 36.93.090. The Board approved the annexation by a 3-2 vote.

Leer appealed the decision in Whatcom County Superior Court pursuant to RCW 36.93.160(5). The superior court: (1) refused to hear new evidence not considered by the Board; (2) held that the sufficiency of the petition, while necessary for adoption of the ordinance, was not necessary to confer jurisdiction on the Board; and (3) concluded that there was substantial evidence to support the Board's conclusion that, overall, the objectives of RCW 36.93.180 would be furthered rather than hindered by the approval of proposed annexation. Leer appeals.

DISCUSSION

Leer makes several allegations regarding the validity of the Board's decision concerning the City of Blaine's proposed annexation of the East Blaine Area. In support of these allegations, he offers evidence not brought before the Board, including evidence regarding the sufficiency of the petitions gathered in support of the annexation, and a decision by the Western Washington Growth Management Hearing Board (Growth Management Hearing Board) declaring that the Blaine interim urban growth area failed to comply with the Growth Management Act. His allegations, however, are not jurisdictional in nature and, therefore, he is prohibited from raising them for the first time on appeal.

Leer's allegations regarding the sufficiency of the petitions gathered in support of the annexation range from the lack of a statutory text or prayer on each page of the petition as required by RCW 35A.01.040, to defects in the petition signatures that would bring the percentage of assessed value below the 60 percent margin required for an annexation. He acknowledges that the RCW 36.93.160(5) limitations on appeal of substantive issues not presented to the Board do not apply to collateral attacks on jurisdictional grounds.[1] He therefore argues that the defects in the petition deny the Board jurisdiction to review the notice of intention.

The petition issue, however, is not jurisdictional because a boundary review board's jurisdiction is not dependent upon the validity of a petition in support of an annexation, but instead comes from RCW 36.93.090 and RCW 36.93.100.

Whenever any of the following described actions are proposed in a county in which a board has been established, the initiators of the action shall file within one hundred eighty days a notice of intention with the board: PROVIDED, That when the initiator is the legislative body of a governmental unit, the notice of intention may be filed immediately following the body's first acceptance or approval of the action. The board may review any such proposed actions pertaining to:
(1) The: (a) Creation, incorporation, or change in the boundary, other than a consolidation, of any city, town, or special purpose district....[[2]]
The board shall review and approve, disapprove, or modify any of the actions set forth in RCW 36.93.090 when any of the following shall occur within forty-five days of the filing of a notice of intention:
....
(2) Any governmental unit affected, including the governmental unit for which the boundary change or extension of permanent water or sewer service is proposed, or the county within which the area of the proposed action is located, files a request for review of the specific action[.][[3]]

The initial annexation petition to the legislative authority of the local government filing the petition provides no authority for board action, nor does its invalidity prevent the board from acting.[4]

*254 When the City of Blaine submitted to the Board its Notice of Intention for Annexation and a Request to Review, it acted in accordance with the statute, and no further action was required for the Board to obtain jurisdiction over the matter. As a result, because the issue of the annexation petition was not properly placed before the Board, it cannot be reviewed by this court considering the limited nature of review permitted under RCW 36.93.160.

For the same reasons, evidence of the Growth Management Hearing Board's decision cannot be considered on appeal. Leer cites the Administrative Procedure Act in stating that because he was unaware of the Growth Management Hearing Board's decision, he should be allowed to present evidence of that decision for the first time on appeal.[5] Contrary to his assertions, however, a boundary review board is a local agency, not a state agency, and as such, the Administrative Procedure Act does not apply to appeals of its decisions.[6]

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Bluebook (online)
957 P.2d 251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leer-v-whatcom-county-boundary-review-bd-washctapp-1998.