FILED MAY 28, 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
METHOW VALLEY CITIZENS ) COUNCIL and FUTUREWISE, ) No. 40706-3-III ) Appellant, ) ) v. ) ) UNPUBLISHED OPINION OKANOGAN COUNTY, ) ) Respondent. )
STAAB, J. — This is the second appeal in this case. In MVCC I,1 this court
affirmed the trial court’s denial of Okanogan County’s (County) CR 12(b)(6) motion to
dismiss MVCC’s complaint as untimely. On remand, the County filed a motion to take
judicial notice of certain facts and its second motion to dismiss under CR 12(b)(6). The
trial court granted the County’s motions, dismissing MVCC’s complaint. MVCC appeals
that order.
MVCC contends the court erred in granting the County’s motion to dismiss by
relying on exhibits that were not proper subjects of judicial notice. MVCC further argues
1 Methow Valley Citizens Council and Futurewise v. Okanogan County, No. 39059- 4-III, slip op. at 1 (Wash. Ct. App. Jan. 4, 2024) (unpublished), https://www.courts.wa.gov /opinions/pdf/390594_unp.pdf (MVCC I). No. 40706-3-III Methow Valley Citizens Council & Futurewise v. Okanogan County
the court erred by failing to apply portions of MVCC I, including what it characterizes as
this court’s new test for notice. The County responds that the court did not err by taking
judicial notice of the County’s exhibits—facts that more than satisfy the requirements of
MVCC I.
Contrary to the parties’ arguments, MVCC I does not announce a new test or
heightened requirement for notice. Nevertheless, the trial court did not err by taking
judicial notice of certain facts, nor by dismissing MVCC’s complaint as untimely. As
such, we affirm.
BACKGROUND
On Wednesday, December 29, 2021, the Okanogan County Board of County
Commissioners (BOCC) held a public meeting, during which it approved a resolution
adopting an updated version of its comprehensive plan under the Planning Enabling Act
of the State of Washington (PEA), ch. 36.70 RCW. On January 5, 2022, a local
newspaper published an article about the BOCC’s adoption of the comprehensive plan.
On March 1, 62 days after the comprehensive plan was adopted, Methow Valley Citizens
Council and Futurewise (collectively MVCC) filed a petition challenging the County’s
adoption of the comprehensive plan.
2 No. 40706-3-III Methow Valley Citizens Council & Futurewise v. Okanogan County
The County’s first motion to dismiss
The County moved to dismiss MVCC’s complaint on the basis that it was
untimely.2 The parties disagreed as to the length and commencement date of the statute
of limitations. The PEA does not contain a statute of limitations for appealing the
adoption of a comprehensive plan. The County argued for application of Okanogan
County Code 17A.350.030’s 20-day limit on challenging legislative actions, while
MVCC advocated for the application of the GMA’s3 60-day statute of limitations. The
superior court applied GMA’s 60-day statute of limitations and found the newspaper
article was the event that triggered commencement of the statute of limitation period.
Because MVCC filed its complaint within 60 days of when the article was published, the
court denied the County’s motion to dismiss in part. The County appealed.
This court affirmed the order denying the County’s motion to dismiss. Methow
Valley Citizens Council and Futurewise v. Okanogan County, No. 39059-4-III, slip op. at
1 (Wash. Ct. App. Jan. 4, 2024) (unpublished), https://www.courts.wa.gov/opinions
/pdf/390594_unp.pdf (MVCC I). First, we found that GMA’s 60-day statute of
limitations was an appropriate analogous appeals period for the PEA. Second, we held
the trial court did not err when it used the newspaper article publication date. Id. at 6.
2 The County also moved to dismiss MVCC’s petition on the basis that MVCC lacked standing, but that issue is not relevant to this appeal. 3 Growth Management Act, chapter 36.70A RCW.
3 No. 40706-3-III Methow Valley Citizens Council & Futurewise v. Okanogan County
We explained that although the commencement date for the appeal period would
typically be the date the ordinance was adopted, there was no evidence in the record that
the BOCC provided advanced notice of its intent to adopt the comprehensive plan.
Instead, the only notice contained in the record was the newspaper article published
January 5.
In a footnote, we offered clarification regarding the notice required to commence
the statute of limitations on the adoption date:
We are not holding that the County must provide actual notice of adoption of a comprehensive plan to every person who might wish to appeal its adoption. Rather, governments must operate in the open. It would be sufficient if the County established it held regular public meetings and publicly posted its agenda in some consistent fashion prior to its meetings. In this manner, interested persons would know where and when to look for the posted agenda.
Clerk’s Papers (CP) at 539.
The County moved this court for reconsideration, arguing that ample evidence
showed MVCC had advanced notice of the December 29, 2021 meeting. We denied
reconsideration but noted that “the appeal was decided on the trial court’s record” and
“[t]he court’s opinion in no way prevents the issue from being reexamined with
additional facts in the lower court.” CP at 545.
4 No. 40706-3-III Methow Valley Citizens Council & Futurewise v. Okanogan County
The County’s motion for judicial notice and second motion to dismiss
On remand, the County filed a second motion to dismiss MVCC’s petition, this
time with a motion for judicial notice. The County asked the court to take judicial notice
of nine exhibits, supported by multiple declarations. The County argued the exhibits
showed MVCC had notice of the meeting and established that the County “held regular
public meetings and publicly posted its agenda in some consistent fashion prior to its
meetings” as “required” by MVCC I. The court granted the County’s motion for judicial
notice over MVCC’s objections. On appeal, MVCC challenges three of the nine exhibits
judicially noticed. The relevant details of each follows.
Exhibit A is a screenshot of the County’s webpage titled “Agenda.” The
screenshot shows commissioners’ meeting agendas for multiple meetings in May 2024.
In her declaration, the clerk of the BOCC explained that the BOCC holds its regularly
scheduled public meetings every Monday, Tuesday, and, if needed, Wednesday. The
County’s general practice, in accordance with statutory requirements, is to publish the
agenda for upcoming BOCC meetings the Friday before the next week’s meeting, or the
Thursday before if Friday is a holiday. Additionally, the BOCC clerk publishes the
agenda on the door of the BOCC meeting room and on the main reception door to that
same building. Finally, the BOCC clerk stated that the County’s practice of posting
agendas was the same in 2024 as it was in 2021.
5 No. 40706-3-III Methow Valley Citizens Council & Futurewise v. Okanogan County
Exhibit C is the Commissioners’ Meeting Agenda for Wednesday, December 29,
2021, that shows the public meeting to consider adoption of the comprehensive plan
scheduled at 1:30 p.m. The BOCC clerk declared that Exhibit C was “a true and correct
copy of the agenda as it would have appeared on the County’s website.” CP at 564. She
stated that the County posted the agenda for BOCC’s regularly scheduled December 29
meeting on December 23.
In her second declaration, the BOCC clerk clarified that Exhibit C depicts the “AV
Capture version of the agenda.” CP at 651. She explained that AV Capture is the
video/audio program used by the County to record its meetings. After each meeting, the
BOCC clerk attaches a copy of the agenda to the video. This allows the public to view
the agenda while watching the recorded video.
The County also offered a declaration from its network analyst who serves as the
system administrator for the County’s website. The network analyst explained that every
change made to the County’s website is logged as an event in the archive. He stated that
he searched the archive that showed that the December 29 agenda was posted by the
BOCC clerk on Sunday, December 26. The network analyst further declared that he
reviewed Exhibit C and “[t]he content of the agenda that appears in Exhibit C is identical
to the content of the agenda that appeared in the webpage archive as having been posted
on December 26, 2021.” CP at 659.
6 No. 40706-3-III Methow Valley Citizens Council & Futurewise v. Okanogan County
The BOCC clerk filed a third declaration to correct statements in her earlier
declarations. She acknowledged that a search of the County’s webpage archives
indicated that she posted the agenda for the December 29 meeting on Sunday, December
26, not on December 23 as she previously declared. She further explained, “I do not
recall the circumstances that would have caused me to post the agenda at a time outside
of my regular process but accept that the electronic archive is correct.” CP at 656.
Exhibit D is the record of the proceedings from the County’s public meeting on
December 29, 2021, reflecting the consideration and adoption of the comprehensive plan.
The record shows that MVCC’s program director attended the meeting via Zoom.
The trial court heard oral argument on the County’s second motion to dismiss.
The County argued that it easily satisfied the new test articulated by the court of appeals
because it is required to publicly post advanced notice of its meetings pursuant to other
laws and the judicially noticed exhibits establish its general practice of posting the
agenda for each meeting on its website at least 24 hours in advance. Additionally, the
County stated that notice was undisputedly received by MVCC because its program
director attended the meeting and was aware of the adoption of the plan.
In response, MVCC argued the County did not satisfy the new test because it
failed to provide notice in a consistent fashion. MVCC pointed to myriad inconsistencies
in the County’s declarations and exhibits. It argued that the County’s standard practice
was to post on Friday, but notice of the December 29, 2021 meeting was not posted until
7 No. 40706-3-III Methow Valley Citizens Council & Futurewise v. Okanogan County
Sunday, December 26. Additionally, Wednesday meetings are held as needed—not
consistently or regularly. Finally, MVCC argued that the County’s failure to provide
adequate notice in the past precluded the trial court from finding that the County posted
its agenda in “some consistent fashion.” RP at 25.
The court re-read the footnote in MVCC I and considered whether the County
established that it provides notice in some consistent fashion, notwithstanding its
apparent deviation from its standard practice in December 2021. The court noted that it
had “no reason to doubt” the network analyst’s declaration that the County maintains an
archive of webpage changes and that the agenda was posted more than 24 hours before
the meeting was held.
The court ultimately granted the County’s motion to dismiss, concluding MVCC’s
complaint was untimely:
So the court finds that on the evidence presented this would appear to meet the new test identified by the court of appeals in that this was—the comp plan appears to have been adopted in a regular public meeting, that the agenda was posted publicly in advance of the 24 hours, meaning that the government—the board was operating in the open and interested persons would know where and when to look for the posted agenda.
Rep. of Proc. (RP) at 32.
MVCC appeals.
8 No. 40706-3-III Methow Valley Citizens Council & Futurewise v. Okanogan County
ANALYSIS
1. JUDICIAL NOTICE
MVCC argues the court erred when it took judicial notice of the County’s
declarations and Exhibits A, C, and D because the documents are testimonial, not
publicly recorded, from unverified sources, or contain inaccurate information. The
County argues the court properly took notice of the exhibits because they are relevant and
there is no contrary evidence. Although the County’s reasoning is not quite right, we
agree that its proffered facts were properly noted by the court.
Normally, a trial court must convert a CR 12(b)(6) motion into a motion for
summary judgment under CR 56 if it considers matters outside the face of the complaint.
Jackson v. Quality Loan Serv. Corp., 186 Wn. App. 838, 844, 347 P.3d 487 (2015). This
does not, however, preclude the court from considering adjudicative facts of which it has
taken judicial notice. Id. An adjudicative fact is one “not subject to reasonable dispute in
that it is either (1) generally known within the territorial jurisdiction of the trial court or
(2) capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” ER 201(b). “A court shall take judicial notice if
requested by a party and supplied with the necessary information.” ER 201(d). “A trial
court’s ruling on a question of taking judicial notice presents a question of law reviewed
de novo.” State v. Disney, 199 Wn. App. 422, 431, 398 P.3d 1218 (2017); see also
Fusato v. Wash. Interscholastic Activities Ass’n, 93 Wn. App. 762, 771, 970 P.2d 774
9 No. 40706-3-III Methow Valley Citizens Council & Futurewise v. Okanogan County
(1999). But see McCartney v. Pierce County, 22 Wn. App. 2d 665, 676, 513 P.3d 119
(2022) (we review ruling for abuse of discretion).
A. Exhibit A
Exhibit A is a screenshot of the County’s webpage titled “Agenda.” The
screenshot shows commissioners’ meeting agendas for multiple meetings in May 2024.
The County offered this exhibit with the declaration of the BOCC clerk to establish the
fact that its general practice is to publish the agenda for upcoming BOCC meetings to its
website the Friday before the next week’s meeting.
“Courts will take judicial notice of the facts of business and occupations, such as
the general course of business and the usual methods of transacting it.” Rogstad v.
Rogstad, 74 Wn.2d 736, 742, 446 P.2d 340 (1968). Here, the commissioners’ meetings
are part of the County’s general course of business and its process for posting meeting
agendas to its website is its usual method. As such, the court properly took judicial
notice of the fact that the County’s general practice is to post the agenda for an upcoming
meeting to its website on the preceding Friday.
MVCC contends that Exhibit A is not relevant because it proves nothing about the
December 29 meeting. However, the exhibit serves to establish a fact regarding the
County’s general practice of providing notice, not its performance on a specific date.
And, the BOCC clerk explained in her declaration that the general practice was the same
in 2021 as it was in 2024. Therefore, the fact is relevant.
10 No. 40706-3-III Methow Valley Citizens Council & Futurewise v. Okanogan County
B. Exhibit C
Exhibit C is the Commissioners’ Meeting Agenda for Wednesday, December 29,
2021, which the BOCC clerk first stated she posted to the County’s website on December
23. MVCC challenges the contents of the agenda and the date it was posted, arguing that
inconsistencies in the evidence precluded the court from determining the exhibit was
“capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.” See ER 201(b).
Indeed, the BOCC clerk first declared that she posted the agenda to the County’s
webpage on December 23 but later indicated that the network analyst’s search revealed
December 26 was the accurate date. There was also conflicting information regarding
whether the exhibit showed the agenda as posted before the meeting, or as an attachment
to the video recording after the meeting. Nevertheless, the network analyst provided
evidence that the County maintains archives that document each change to a webpage as
a separate event. A search of the archive showed that the BOCC clerk published the
December 29 agenda to the website on Sunday, December 26. The network analyst also
confirmed that “[t]he content of the agenda that appears in Exhibit C is identical to the
content of the agenda that appeared in the webpage archive as having been posted on
December 26, 2021.” CP at 659.
Notwithstanding the BOCC clerk’s inaccuracies, the fact that the County posted
the December 29 agenda on December 26 was capable of accurate and ready
11 No. 40706-3-III Methow Valley Citizens Council & Futurewise v. Okanogan County
determination by the network analyst’s search of the County’s archives. As such, the
County supplied the necessary information for the court to properly take judicial notice of
the fact that the agenda for the December 29 meeting was published to its website
December 26.
C. Exhibit D
Exhibit D is the record of proceedings from the County’s public meeting on
December 29, reflecting consideration and adoption of the comprehensive plan. The
record of proceedings also indicates that MVCC’s program director attended the meeting
via Zoom.
Governmental information in the public record, such as meeting minutes, are
appropriate for judicial notice. See McCartney, 22 Wn. App. 2d at 677. As such, the
record of proceedings was properly noted.
MVCC argues the record of proceedings should not be judicially noticed because
it does not state when the record was created or made available to the public, nor did it
specify the contents of the adopted comprehensive plan; therefore, it is unknown if or
when it provided notice to the public. This argument fails because the County did not
offer the exhibit to prove a fact about providing notice to the public. Instead, it wanted
the court to take judicial notice of the fact that MVCC’s program director was in
attendance—a fact that MVCC does not dispute.
The court did not err taking judicial notice of Exhibits A, C, and D.
12 No. 40706-3-III Methow Valley Citizens Council & Futurewise v. Okanogan County
2. DISMISSAL UNDER CR 12(b)(6)
MVCC contends the court erred when it granted the County’s CR 12(b)(6) motion
to dismiss because it failed to properly apply the new test announced in MVCC I. The
County responds that it satisfied the test because it publicly posts meeting agendas in
advance and in some consistent fashion. Although the parties’ arguments are misguided,
we agree with the County in result.
A. This court did not create a new test in MVCC I
As a preliminary matter, the parties’ arguments to the trial court and on appeal
center on whether the County satisfied this court’s new test by proving it provides notice
“in some consistent fashion.” See, e.g., Resp’t’s Br. at 1. Likewise, the trial court found
the evidence “would appear to meet the new test identified by the court of appeals.” RP
at 32. Although their efforts to apply this court’s first opinion is commendable, the
parties and the court demonstrate a misunderstanding and misapplication of MVCC I.
Simply stated, the court of appeals does not announce a new test in an unpublished
opinion. See State v. Nysta, 168 Wn. App. 30, 44, 275 P.3d 1162 (2012) (“No matter
how well reasoned, unpublished opinions of this court lack precedential value, in part
because they merely restate well established principles.”). Additionally, footnote 8 in
MVCC I, is mere dicta, “‘[a] judicial comment . . . that is unnecessary to the decision.’”
State v. Scott, 190 Wn.2d 586, 599, 416 P.3d 1182 (2018) (first alteration in original)
(quoting BLACK’S LAW DICTIONARY (9th ed. 2009)).
13 No. 40706-3-III Methow Valley Citizens Council & Futurewise v. Okanogan County
The parties interpret MVCC I to create a heightened burden on the County to
provide and prove notice. On the contrary, MVCC I acknowledged that an ordinance’s
adoption date would normally trigger the statute of limitations; however, it affirmed that
the newspaper article triggered the 60-day statute of limitations here because it was the
only evidence of notice in the record. MVCC I, No. 39059-4-III, slip op. at 6. And the
footnote is more favorable to the County than burdensome. Id. at n.8. The County can
show actual notice, but it need not. Id. Instead, it may simply establish that its general
practice is to hold regular meetings and publicly post the agendas for those meetings in
advance. Id. Furthermore, MVCC I does not require the County to prove meticulous
adherence to its policies.
Although the trial court understood that an apparent deviation from the standard
practice should not defeat a party’s showing that a standard practice was in place, MVCC
I does not burden the County with the additional requirement imposed below.
B. The County’s second motion to dismiss
We review dismissals under CR 12(b)(6) de novo. Woodward v. Taylor, 184
Wn.2d 911, 917, 366 P.3d 432 (2016). Dismissal is appropriate only if there is no set of
facts, actual or hypothetical, that would justify recovery. Id. For the purposes of review,
all facts alleged in the complaint are assumed true. Id. An action that is untimely filed is
properly dismissed under CR 12(b)(6). See Yurtis v. Phipps, 143 Wn. App. 680, 692-93,
181 P.3d 849 (2008).
14 No. 40706-3-III Methow Valley Citizens Council & Futurewise v. Okanogan County
Here, the County adopted its comprehensive plan under the PEA on December 29,
2021. The PEA does not have a stated statute of limitations; instead, the analogous GMA
60-day statute of limitations applied. MVCC I, No. 39059-4-III, slip op. at 5. The statute
of limitations begins to run when the ordinance is adopted. Id. at 6. However, the statute
of limitations may be tolled if there is reason to believe the ordinance was adopted
without the County providing advanced notice. Id. at 6. That exception does not apply
here because the record shows that MVCC had advanced notice of the meeting; it is
undisputed that its program director was in attendance. Therefore, the 60-day appeals
period commenced on December 29, 2021. MVCC filed its complaint challenging the
ordinance on March 1, 2022, 62 days after its adoption date. As such, MVCC’s
complaint was untimely filed, and the expired statute of limitations is an insuperable bar
to relief. Id. The County’s motion to dismiss was properly granted.
MVCC argues that dismissal was error because there are questions of fact
regarding the County’s failure to follow its general practices. MVCC further contends
that whether “a[n MVCC] staffer happened to [attend] the December 29, 2021, meeting
by Zoom” is not dispositive because its presence at the meeting does not excuse the
County’s failure to comply with MVCC I. Appellant’s Reply Br. at 9-10. MVCC argues
the County has a history of failing to provide adequate notice and anyone looking on the
County’s website on Friday, December 24 would not be made aware of the December 29
meeting.
15 No. 40706-3-III Methow Valley Citizens Council & Futurewise v. Okanogan County
Indeed, it appears the agenda for the meeting was posted the Sunday before the
meeting, not the preceding Friday. Additionally, there were inconsistencies in the
evidence regarding the contents of the agenda and when it was created. However,
MVCC’s arguments are outside the scope of this appeal and are irrelevant. The County’s
general practices, its compliance therewith, and the alleged previous and present
violations of noticing requirements do not need to be decided. Instead, because MVCC
had actual notice of the meeting, the County need not rely on nor establish its practice of
publicly posting notice in some consistent fashion.
Finally, MVCC argues that dismissal was error because it violated the law of the
case doctrine. MVCC alleges the court violated the doctrine when it considered evidence
it took judicial notice of because MVCC I requires the County to identify an insuperable
bar to relief on the face of the complaint.
“In its most common form, the law of the case doctrine stands for the proposition
that once there is an appellate holding enunciating a principle of law, that holding will be
followed in subsequent stages of the same litigation.” Roberson v. Perez, 156 Wn.2d 33,
41, 123 P.3d 844 (2005). For instance, MVCC I held that it was appropriate for the trial
court to apply GMA’s analogous 60-day statute of limitations to the PEA in this case.
MVCC I, No. 39059-4-III, slip op. at 5. As such, the trial court, and now this court on
appeal, applies that 60-day statute of limitations to the County’s second motion to
dismiss.
16 No. 40706-3-III Methow Valley Citizens Council & Futurewise v. Okanogan County
MVCC points to an excerpt from MVCC I that states: “the County has failed to
show that, on the face of MVCC’s petition, there exists an insuperable bar to relief.” Id.
at 6. MVCC misconstrues this sentence as precluding the trial court from considering
any fact not presented on the face of its complaint. The MVCC I court did not change
well established law or prevent the trial court from considering any fact properly before
it. See Jackson, 186 Wn. App. at 844. Instead, the comment reflected the fact that the
record on review was limited. Furthermore, this court’s subsequent ruling on the
County’s motion for reconsideration expressly clarified that “[MVCC I] in no way
prevents the issue from being reexamined with additional facts in the lower court.” CP at
545 (emphasis added).
The trial court did not err by granting the County’s CR 12(b)(6) motion to dismiss
MVCC’s complaint as untimely.
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.
_________________________________ Staab, C.J. WE CONCUR:
_________________________________ _________________________________ Lawrence-Berrey, J. Cooney, J.