### FILED JANUARY 24, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE FRIENDS OF NORTH SPOKANE COUNTYPARKS, Appellant, V. SPOKANE COUNTY; FRED MEYER STORES, INC.; ST AR SAYLORLLC,

Respondents. ) ) ) ) ) ) ) ) ) ) ) No. 33982-3-111

UNPUBLISHED OPINION

PENNELL, J.

- For a secondtime we are taskedwithreviewingwhetherFriends of North Spokane County Parks can overcomeprocedural obstacles in orderto challenge a decision ofthe Spokane County Board ofCommissionerspermittingroad construction through a park. Previously, wereversed an order ofdismissal based on standing. FriendsNo. 33982-3-III Friends of N. Spokane CountyParks v. Spokane County of N. Spokane County Parks v. Spokane County, 184 Wn. App. 105, 336 P.3d 632 (2014). We now considerwhetherFriends' suit was timely under RCW 36.32.330. We hold it
was. 

### FACTUAL HISTORY! In 2001, the county adopted a resolution accepting 3.99 acres ofdonated land from Fred Meyer Stores, Inc.2 for use as apark. Clerk's Papers (CP) at 451-52. The land, which came to be known as "Freddy Park," was formally conveyed to the county by the Wilmington Trust Company, which held title to the property as security. The 2001 deed specified the property "shall be held, conveyed, sold, and improved only as a natural, community, orregional park" and "[v]ehicular access to the property shall be only from Standard Drive." CP at 467. Star Saylor LLC owns property bordering Freddy Park. In 2007, Star Saylor applied to the county for apreliminaryplat ofits parcel. Star Saylor's application was approved, subject to the condition that Star Saylor secure a public roadway through Freddy Park. In 2012, Star Saylor obtained a rezone permitting construction ofthe road. Noparty appealed the rezone. In order to accommodate Star Saylor's need for the new

1A more detailed factual recitation is set forth in our prior decision. Friends, 184 Wn. App. at 111-15. 2Fred Meyer Stores, Inc. is a trade name for the Roundup Company. 2No. 33982-3-III Friends of N Spokane County Parks v. Spokane County road, the county commissioners approved Resolution 12-0910, which amended the use restrictions contained in the 2001 deed. The amendment specifically states, "[Freddy Park] shall be held, conveyed, sold, and improved as a natural, community, or regional parkand for the establishment of apublic road." CP at 472 (emphasis added). 

### PROCEDURAL HISTORY Friends sued the county and Fred Meyer to stop any changes to Freddy Park. Star Saylor intervened and filed a motion to dismiss. The superior court granted the motion because it did not believe Friends had taxpayer standing to pursue its claims, nor could it sufficiently allege a claim upon which reliefcould be granted. Friends appealed. In a published decision, this courtreversed in part and affirmed in partthe superior court's dismissal ofFriends' lawsuit. Friends, 184 Wn. App. at 139. On remand, Star Saylor filed a motion for summaryjudgment arguing Friends had failed to comply with the statute oflimitations and bond requirements ofRCW 36.32.330. The county and Fred Meyerjoined in Star Saylor's motion. Friends also filed a cross motion for summaryjudgment. The superior court granted the respondents' motion for summaryjudgment and denied Friends' motion. The court also denied Friends' motion for reconsideration. Friends appeals.

3No. 33982-3-111 Friends of N Spokane CountyParks v. Spokane County
ANALYSIS3 The trial court's summaryjudgment orderturns solely on a question oflaw, which
we review de novo. Christensen v. Grant CountyHosp. Dist. No. 1, 152 Wn.2d 299,305, 96 PJd 957 (2004). At issue is RCW 36.32.330. This statute provides, in relevantpart, that "[a]nyperson may appeal to the superior court from any decision or order ofthe board ofcounty commissioners." An appeal under the statute must be commencedwithin 20 days ofthe decision or order ofthe county commissioners that is being challenged, and certain bond requirements must also be met. RCW 36.32.330. Although the statute uses the language "anyperson," Washington courts have long interpreted this provision to mean that only a person who was a party to the decision or order being challenged has a right to appeal under RCW 36.32.330. Morath v. Gorham & Clemans, 11 Wash. 577, 579, 40 P. 129 (1895) ("we mustpresume that, when the legislature said anyperson mayappeal, they meant anypersonwhohas properly presented a matter before the board for their determination, and who is dissatisfied with their decision") (Emphasis added); see also State ex rel. Mason v. Bd. of County

3 In addition to its substantive arguments, Friends claims the respondents have waived their statute oflimitations argument. Because we agree with Friends on the merits, we need not address the issue ofwaiver. However, we agree withthe superior court that the respondents sufficiently preserved this issue. 4No. 33982-3-III Friends of N. Spokane CountyParks v. Spokane County
Comm 'rs, 146 Wash. 449, 454-55, 263 P. 735 (1928), overruledon othergrounds by Lopp v. Peninsula Sch. Dist. No. 401, 90 Wn.2d 754, 758-59, 585 P.2d 801 (1978); Ronken v. Bd. of County Comm 'rs, 89 Wn.2d 304, 309-10, 572 P.2d 1 (1977). The construction given to RCW 36.32.330 favors Friends. Friends was not a party to any ofthe county decisions regarding Freddy Park. Accordingly, the suit filed by Friends would not appear to fall under RCW 36.32.330 and, as such, would not be governed by a 20-day statute oflimitations. Despite this great weight ofadverse authority, the respondents claimthat RCW 36.32.330 applies in the current context. According to the respondents, there is no blanketrule excusing nonparties from the statute's 20-day appeal deadline. Rather, they assert that the 20-day deadline applies either to aparty or to an entity with notice ofthe county's actions. Because Friends had notice ofthe county's decision regarding Freddy Parkthe day it was made, the respondents argue Friends' lawsuit was untimely. The lone case cited by the respondents is State ex rel. Thompson v. Carroll, 63 Wn.2d 261, 387 P.2d 70 (1963). In Thompson, a group ofrealtor-landowners challenged
a county decision authorizing the incorporation ofa new town. Although the realtors had actual notice ofthe county's plan to incorporate their land, they waited approximately three years to voice their objections. The Supreme Court found this untimely. The


### 5No. 33982-3-III Friends of N Spokane CountyParks v. Spokane County
realtors could have filed for an injunction or appealed the county's orderunder RCW 36.32.330. Because they did not do so, the Supreme Courtupheld the trial court's refusal to issue a writ ofmandamus dissolving the town. The respondents' reliance on Thompson is misplaced. Thompson did not address whether a nonparty is bound by the 20-day deadline in RCW 36.32.330. In fact, the decision never clarified whether the realtor-landowners, whose consentto incorporation
was required under RCW 35.21.010, were consideredparties to the county's incorporation decision. The focus in Thompson was not the proper application of RCW 36.32.330, butthe inequity ofpermitting a challenge to a county's incorporation decision three years after it took effect. Thompson has neverbeen cited in any subsequent decisions ofthe Supreme Court or this court. We decline to interpret it as overturning the longstanding rule regarding nonparty plaintiffs. Thompson is best read as a decision limited to the extreme circumstances confronted by the Supreme Court in that case. Our interpretation ofRCW 36.32.330 disposes ofthe respondents' motion for summaryjudgmentbased onthe statute oflimitations.4 Because Friends was not aparty

4 The Respondents' argument is limited to a direct application ofRCW 36.32.330. They do not argue that we should apply the statute's 20-day deadline as a reasonable time limit under the declaratoryjudgment statute. We therefore limit ourreview to whether Friends is aperson who may appeal a county decision, as contemplated by the statute. 6No. 33982-3-111 Friends of N. Spokane CountyParks v. Spokane County

to the challengedproceedings, the statutory right ofappeal under RCW 36.32.330 was not applicable. Norwas the 20-day filing deadline. Summaryjudgment onthe basis of RCW 36.32.330 was improper. As a final matter, the respondents argue they are entitled to summaryjudgmenton the merits regardless ofthe timeliness ofFriends' complaint. While this court "may affirm summaryjudgmenton any grounds supported by the record,"5we do not find either party has made a sufficient showing for summaryjudgment. As indicated in ourprevious decision, Friends has alleged facts which, iftrue, would permit injunctive reliefbased onthe existence ofa dedication. See Friends, 184 Wn. App. at 129-131. 

### It remains to be seen whetherFriends can sustain its burden of proof. Numerous unresolved factual questions persist, such as:
• Whetherthe 2001 deed was in fact a dedication;
• Ifthe deed was a dedication, whether a road through Freddy Parkwould be consistent with the terms ofthe original dedication;
• Ifconstruction ofthe road would be inconsistent withthe dedication, whetherFredMeyerhad authority to amendthe dedication that was

5Blue DiamondGrp., Inc. v. KBSeattle 1, Inc., 163 Wn. App. 449,453,266 P.3d 881 (2011). 7No. 33982-3-111 Friends of N Spokane County Parks v. Spokane County originally granted by the now defunct Wilmington Trust Company; and
• Whether the interests ofnonconsentingthird parties have intervened in a
mannerthat wouldprohibit altering the dedication. See l lAEUGENE MCQUILLIN, THELAWOFMUNICIPALCORPORATIONS 

### § 33.77, at 538 (3rd ed. rev. vol. 2000). The record before this court is insufficient to resolve the merits ofthis case. Remand is required. CONCLUSION The trial court's order ofsummaryjudgment in favor ofthe respondents is reversed. This matter is remanded for further proceedings consistent withthis opinion. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040. Pennell, J. WE CONCUR: 

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