### FILED AUG. 22,2013 In theOffice oftheClerkofCourt W AStateCourtofAppeals,Division III



### IN THE COURT OF APPEALS OFTHE STATE OF WASHINGTON DIVISION THREE PROSSER HILL COALITION, LISA ) WATTS-MCKEE, DANIEL SPISAK, ) JACQUELYN OLSON, JACK ) WILCOX, TOM WITFIELD, JANICE ) WHITFIELD, ROBERT HEINEMANN, ) MELANIEZIMMERMAN, ROY ) WILSON, STEVE BIRD, RANDY ) SUNDERLAND, RICKOLSON, and ) CINDY PHILLIPS, ) 

### ) Respondents, ) Cross-Appellants, ) 

### ) v. ) 

### ) COUNTY OF SPOKANE, ) SILVERBIRD LLC, and DENNIS P. ) REED, DENNIS E. and DAWNA ) REED, husband and wife, ) 

### ) Appellants. ) No. 302415-111

PUBLISHED OPINION

BROWN, 

### J.

- After a public hearing before a county examiner, Spokane County approved a conditional use permit (CUP) for a private airstrip requested by Silverbird LLC, Dennis P. Reed, Dennis 

### E. Reed and Dawna Reed (collectively Silverbird). But based on insufficient public notice underthe Spokane County Code (SCC), the superiorNo. 30241-5-11I ProsserHill Coalition, etal. v. CountyofSpokane, etal.
court, reviewing under chapter 36.70C RCW, the Land Use Petition Act (LUPA), remanded for a new hearing. Petitioners are a coalition of neighbors: Prosser Hill Coalition, Lisa Watts-McKee, Daniel Spisak, Jacquelyn Olson, Jack Wilcox, Tom Whitfield, Janice Whitefield, Robert Heinemann, Melanie Zimmerman, Roy Wilson, Steve Baird, Randy Sunderland, Rick Olson, and Cindy Phillips (collectively the Coalition). The County and Silverbird jointly appeal, contending the superior court's remand decision was error. We disagree, and additionally reject Silverbird's other contentions that we dismiss because the Coalition failed to properly name the property
owners as parties and failed to issue a surnmons with their land use petition. We reject the Coalition's cross appeal that the superior court erred in denying its cost bill request. Accordingly,we affirm. FACTS On November 24, 2009, Silverbird submitted a CUP application to the County to construct a private airstrip with a 2,500-foot long by 250-foot wide runway area. The airstrip would extend across the southern portion oftwo parcels owned by Dennis E. and Dawna Reed. Silverbird proposed the development ofa series of high-end houses and the permanent occupancy ofthe site by 15 aircraft. The site and the neighboring lands are designated Rural Traditional in the County's comprehensive plan. On October 12, 2010, Silverbird mailed hearing notices to property owners within 400 feet ofthe site. Silverbird was required to post a notice of hearing sign "on the site along the most heavily traveled street lying adjacentto the site." Spokane County Code



### 2No. 30241-5-111 ProsserHill Coalition, etal. v. CountyofSpokane, etal. (SCC) 13.700.106(2)(b). The site, however, does not abut a street. The two nearest public roads are Cheney-Spokane and Jensen. The site is closest to Cheney-Spokane, which is paved and a majorthoroughfare. Silverbird, however, posted its notice sign on Jensen Road, which is a dirt road that leadsto Dennis 

### E. andDawna Reed's property. Additionally, the hearing notices erroneously state the site is located "north and west of Jensen Road." Board Record (BR) at 205-06. The site is actually north and west of Cheney-Spokane Road. The hearing examiner denied the neighbors' request fora continuance to correct the notice deficiencies and ruled the notice requirements were met. 1 During the CUP application hearing, several neighbors testified totheir concerns over noise, elevated accident potential, threats to safety, and degraded propertyvalues. The hearing examinergranted the CUP on December 17, 2010, with conditions. The Coalition then filed a LUPA petition in the superior court, challenging the hearing examiner's decision. The petition identified in its headerthe respondents as Spokane County, Silverbird LLC, and Dennis P. Reed. The body ofthe LUPA petition identified Dennis P. Reed's parents, Dennis 

### E. and Dawna Reed, as owners ofthe property as well. Copies ofthe LUPA petition were served on Spokane County, Dennis

1 The parties dispute whetherthe notice sign posted on Jensen Road contained an incorrect property description. At this court's request, the parties supplemented the record to addressthis contention. Based on RAP 9.10, we acceptthe parties' supplemental materials and deny Silverbird's post-oral argument motion to strike but notethat we are not permitted, and do not, engage in improperfact finding to the extent contemplated by Silverbird. 

### 3No. 30241-5-111 ProsserHill Coalition, eta/. v. CountyofSpokane, eta/.
P. Reed, Dennis E. and Dawna Reed; but, the petition was not accompanied by a summons. Recognizing its error, the Coalition moved to amend the captio'1 on January 19, 2011. Silverbird countered byfiling a motion to dismiss the LUPA petition. The court granted the motion to amend the caption and denied the motion to dismiss. Following a LUPA hearing, the trial court found that Silverbird erroneously placed the notice sign on Jensen Road ratherthan the Cheney-Spokane Road, and listed an inaccurate description ofthe property subjectto the CUP application on the notices. The court found these errors did not amountto harmless error. The court ordered the matter remanded for a new hearing with appropriate public notice. The court declined to rule on any ofthe substantive issues. The court denied the Coalition's cost bill, ruling the Coalition was not a prevailing party because the court remanded versus ruling on the merits ofthe matter. Silverbird appealed the court's orders denying the motion to dismiss, grantingthe motion to amend the caption, and the remand order. The Coalition cross appealed the court's cost bill denial. ANALYSIS 

### A. LUPA Petition Sufficiency The issue is whetherthe trial court erred in denying Silverbird's motion to dismiss the Coalition's LUPA petition and allowing the Coalition to amend its caption. Silverbird contends the amendment rendered the petition untimely. Silverbird contends the matter



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# INo. 30241-5-111 ProsserHill Coalition, etal. v. CountyofSpokane, etal.
should have been dismissed because service was deficient because a summons did not accompanythe petition. We review an order regarding a motion to dismiss for manifest abuse of discretion. Escude 

### v. King CountyPublic Hosp. Dist. No.2, 117Wn. App. 183, 190,69 P.3d 895 (2003). Likewise, we reviewthe denial ofa motion to amend for abuse of discretion. Karlberg 

### v. Otten, 167Wn. App. 522, 529,280 P.3d 1123 (2012). Abuse
occurs when the ruling is manifestly unreasonable ordiscretion was exercised on untenable grounds. Id. A superior court hearing a LUPA petition acts in an appellate capacity with the jurisdiction conferred by law. Conom 

### v. Snohomish County, 155Wn.2d 154, 157, 118 P.3d 344 (2005). U[B]efore a superior court may exercise its appellatejurisdiction, statutory procedural requirements must be satisfied. A court lacking jurisdiction must enter an order ofdismissal." Id. RCW36.70C.040(2)(b)(ii) states, "a land use petition is barred, and the court may not grant review, unless the petition is timely filed

... and timely served on the following persons who shall be partiesto the review ofthe land use petition

... [e]ach person identified by name and address in the localjurisdiction's written decision as an owner ofthe property at issue." In QualityRockProds., Inc. v. Thurston County, 126 Wn. App. 250, 265-66,108 P.3d 805 (2005), Division Two ofthis court held thatwhere service is otherwise proper underthe civil rules, a party's failure to include the name ofa necessary party in the caption does not divestthe superior court ofjurisdiction absent demonstrated prejudice.



### 5No. 30241-5-111 ProsserHill Coalition, etal. v. CountyofSpokane, etal.
In QualityRock, otherthan omitting the necessary party in the petition's caption, the party complied with the procedural requirements necessaryto invoke the superior court's appellatejurisdiction. Id. at 271-72. QualityRockis persuasive. The Coalition's petition listed in its caption the respondents as Spokane County, Silverbird LLC, and Dennis P. Reed. The body ofthe LUPA petition, however, identified Dennis P. Reed's parents, Dennis 

### E. and Dawna Reed, as owners ofthe property in question. Copies ofthe LUPA petition were served
on Spokane County, Dennis P. Reed, Dennis 

### E. and Dawna Reed; however, the petition was not accompanied by a summons. Because Dennis 

### E. Reed and Dawna Reed were notified ofthe LUPA petition and they participated in the County proceedings, Silverbird cannot establish prejudice resulting from the caption amendment. Following QualityRock, the Coalition's failure to include Dennis P, Reed's parents' names in the caption does not divest the superior court ofjurisdiction. The Coalition complied with the procedural requirements necessaryto invoke the superior court's appellatejurisdiction. Id. at 271-72. Silverbird contends the petition should be dismissed becausethe date ofthe amendment was over 21 days from the date ofthe land use decision. See RCW 36.70C.040(3) (a petition is timely iffiled and served within 21 days ofthe land use decision). But, CR 15(c) provides that an, "amendment relates backto the date ofthe original pleading." Accordingly, the Coalition's subsequent amendment did not render the petition untimely. 

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# I INo. 30241-5-111 ProsserHill Coalition, eta/. v. CountyofSpokane, eta/.
Silverbird next urges us to adopt a requirement that a summons must accompanythe filing ofa LUPA petition. Specifically, Silverbird contends LUPA and the civil rules require a summons be filed to grantthe courtjurisdiction and that the failure to file a summons is groundsfor dismissal. As discussed above, RCW 36.70C.040 sets forth the procedure for commencing review under LUPA, stating in part, "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 on the [listed] persons." Regarding service, the statute states, "Service on the localjurisdiction must be by delivery ofa copy ofthe petition to the persons identified by or pursuantto RCW4.28.080 to receive service ofprocess. Service on other parties must be in accordance with the superior court civil rules or by first-class mail." RCW 36.70C.040(5). In interpreting a statute, it is ourfundamental dutyto ascertain and implementthe legislature's intent. UnitedStates Tobacco Sales & Mktg. Co. v. Dep'tofRevenue, 96 Wn. App. 932, 938, 982 P.2d 652 (1999). A court must give meaning to everyword and interpretthe statute aswritten. Enter. Leasing, Inc. v. Cityof Tacoma Fin. Dep't, 139 Wn.2d 546,552,988 P.2d 961 (1999). Iftwo provisions conflict, courts must give preference to the most specific statute. Bowles v. Wash. Dep'tofRet. Sys., 121 Wn.2d 52,78,847 P.2d 440 (1993). LUPA alone governsjudicial review of land use decisions. BenchmarkLandCo.
v. CityofBattle Ground, 146Wn.2d 685,693,49 P.3d 860 (2002). "[T]he plain 

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# I i 7No. 30241-5-111 ProsserHill Coalition, etal. 

### v. CountyofSpokane, etal. language ofthe

... LUPA provisions governs." Mellish 

### v. Frog Mountain Pet Care, 154 Wn. App. 395,405,225 P.3d 439 (2010). Nothing in LUPA requires the filing ofa summons. Indeed, the purpose ofa summons is to give notice and provide an opportunity to answer. Sprincin King St. Pariners v. Sound Conditioning Club, Inc., 

### 84 Wn. App. 56,60,925 P.2d 217 (1996). As discussed in QualityRock, ItCR 4(b)'s directive thatthe summons provide notice and warn ofpotential default can be inapplicable in the LUPA context." 126 Wn. App. at 265. The courtfurther noted that although the timing and service requirements arejurisdictional, the failure to strictly comply with the procedures ofthe civil rules will not invalidate a LUPA proceeding. 

### Id. at 271. While courts have strictly construed the timing and parties that must be served in a LUPA proceeding, the courts have not elevated other procedural requirements to a "jurisdictional threshold." Id. Here, the LUPA petition was filed with the county's auditor's office and surrounding neighbors by first class mail as prescribed by RCW 36.70C.040(5). This sufficiently invoked the court'sjurisdiction. Silverbird's argument that a summons must accompanythe petition is not supported by law. We are not persuaded to extend the
summons requirement here. B. Improper Notice The issue is whetherthe trial court erred in remanding the matter to the hearing examiner based on improper notice. Silverbird contends notice was sufficientto provide the neighboring property owners an opportunity to be heard. 

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# l fNo. 30241-5-111 ProsserHill Coalition, etal. v. CountyofSpokane, etal.
RCW 36.70C.140 outlines three possible responses for a reviewing court when considering a hearing examiner's decision: "The court may affirm or reverse the land
use decision under review or remand it for modification orfurther proceedings." "When reviewing a superior court's decision on a land use petition, the appellate court stands in the shoes ofthe superior court." Citizens to Pres. PioneerPark, LLC v. CityofMercer Island, 106Wn. App. 461,470,24 P.3d 1079 (2001). In the context ofadministrative review, the court ofappeals reviews the administrative agency action, not the superior court record. 

### J.L. Storedahl

### &Sons, Inc. v. Cowlitz County, 125Wn. App. 1,6,103 P.3d 802 (2004). This standard applieswith equal force in the context ofa LUPA decision. Wellington RiverHollow, LLC v. King County, 121 Wn. App. 224, 230, 54 P.3d 213 (2002). The SCC setsthe procedurefor review ofproject permits in Spokane County. Regarding notice, SCC 13.700.106(2)(b) requires an applicantto post a notice of hearing sign "on the site along the most heavilytraveled street lying adjacent to the site." Additionally, SCC 13.700.106(2)(a) and (c) requires neighboring property owners to receive written notice and for noticeto be published in the newspaper. This notice must contain the, "project location, vicinity and address and parcel number, if applicable." SCC 13.70.104(5). We review statutory interpretation questions de novo. Estate ofHaselwood v. Bremerton Ice Arena, Inc., 166Wn.2d 489,497,210 P.3d 308 (2009). We discern plain meaning from the ordinary meaning ofthe language at issue, the context ofthe statute



### 9No. 30241-5-111 ProsserHill Coalition, etal. v. CountyofSpokane, etal.
in which that provision is found, related provisions, and the statutory scheme as a "whole." State v. Engel, 166Wn.2d 572, 578, 210 P.3d 1007 (2009). Here, the proposed airstrip is not adjacentto a road; however, the two nearest roads are Spokane-Cheney, a paved, thoroughfare in the area; and Jensen, a dirt road that leads to a long drivewaythat services Dennis E. and Dawna Reed's property. SCC 13.700.1 06(2)(b) states that notice must be posted "along the most heavilytraveled street." We give effectto a statute's plain meaning. Dep'tofEcology v. Campbell& Gwinn, LLC, 146Wn.2d 1,9-10,43 P.3d 4 (2002). The plain meaning of most heavily traveled would be a paved, thoroughfare instead ofa dirt road leading to a private residence. Moreover, SCC 13.700.106(2)(a) and (c) requires neighborsto receive written notice and the publicto receive notice via the newspaper. Both ofthese methods of notice erroneously state thatthe site is located "north and west ofJensen Road." BR at 205-06. The site is actually north and west ofCheney-Spokane Road. Whilethe hearing examiner ruled the notice requirements were met because nothing indicated neighboring property owners were confused ordid not receive notice, it is difficultto measurethe impact the faulty notice had on concerned individuals. In otherwords, it is difficultto prove a negative. "One purpose ofspecific statutory requirements for public notice ofan impending land use decision is to ensure thatthe decision makers receive enough information from thosewho may be affected bythe action to make an intelligent decision." Prekeges v. King County. 98Wn. App. 275.

10No. 30241-5-111 ProsserHill Coalition, etal. v. CountyofSpokane, etal. 281,990 P.2d 405 (1999). The defective notice undermines the information-gathering process. By comparison, in Stritzel v. Smith, 20 Wn. App. 218, 220-21, 579 P.2d 404 (1978), a landowner brought an action to reclaim land that had been sold at a tax sale. The court ordered the tax foreclosure deeds set aside because there had been only 9 days' posting of public notice ofthetax sale, not 10 days as required bythe tax sale statute. The court held in Stritzelthat strict compliance with the posting requirement
was necessary to protectthe landowner's interest in having as many bidders atthe sale
as possible, and to guarantee him a fixed numberofdays to redeem the property before the sale. Stritzel, 20 Wn. App. at221. A neighboring landowner should be afforded a fair opportunityto be heard. See Gardnerv. Pierce CountyBoardofCommissioners, 27 Wn. App. 241, 243-44, 617 P.2d 743 (1980) (court tolled thetime period to appeal a land use decision when the lack of public notice deprived a neighboring landownerofa fair opportunityto be heard). Even applying the lesserstandard ofsubstantial compliance, U[t]he keyto achieving substantial compliance with a procedural statute is the satisfaction ofthe substance essential tothe purpose ofthe statute." Prekeges, 98 Wn. App. at 280. Posting a sign contrary tothe municipalities' placement requirement and to provide notice with the wrong property description is notwithin the substantial compliance standard. In sum, because the notice sign was not posted nearthe required street and notice did not contain the correct property description, as required bythe clear language

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# 1 ProsserHill Coalition, etal. v. CountyofSpokane, etal. I 

### , 1 

### J of SCC 13.70.104(5) and SCC 13.700.106(2)(b). the trial court did not err in remanding 

# j the matterto the hearing examiner. 

# I C. Conditional Use Permit I Silverbird contends the CUP was properly granted while the Coalition contends the hearing examinerfailed to consider noise, safety risks, and impacts to property value when granting the CUP. The trial court did not reach these issues, and neither do
we. Based on the disposition above (affirming the court's remand for proper notice and hearing), any discussion by this court regarding the substantive issues would amount to
an advisory opinion, which is disfavored by courts. State v. Norby. 122Wn.2d 258.269, 858 P.2d 210 (1993). Moreover, the trial court did not rule on the substantive issues. Under RCW 36.70C.040(1), the LUPA appellate process requires reviewfirst bythe superior court. Thus, it would be premature for us to rule on the substantive issues. D. Costs and Attorney Fees On cross review, the Coalition contends it was the prevailing party below and should have been awarded costs under RCW4.84.030. We review a decision to award or deny costs for an abuse ofdiscretion. HighlandSch. Dist. No. 203 v. Racy, 149Wn. App. 307, 312, 202 P.3d 1024 (2009). "Discretion is abused when it is exercised on untenable grounds orfor untenable reasons." Id. Under RCW4.84.030, "[i]n any action in the superior court ofWashington the prevailing party shall be entitled to his or hercosts and disbursements." U[T]he 

# ! determination ofwho is a prevailing party depends upon who is the substantially 

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## f INo. 30241-5-111 ProsserHill Coalition, etal. v. CountyofSpokane, etal. prevailing party, and this question depends upon the extent ofthe relief afforded the parties." Riss v. Angel, 131 Wn.2d 612, 634, 934 P.2d 669 (1997). The superior court remanded on a procedural defect. Whilethe Coalition pOinted out the deficiency in its LUPA petition, the remand did not provide its affirmative relief. By comparison, in Ennis v. Ring, 56 Wn.2d 465,473,341 P.2d 885 (1959), a case involving the denial ofcosts after an appeal court ordered a retrial, the court held, "In the event ofa retrial the determination ofwho is the prevailing party must await the outcome ofthe second trial." Becausethe Coalition is notthe substantially prevailing party, the superior court properly denied its request for costs. Both Silverbird and the Coalition request attorneyfees on appeal in their reply briefs. Under RAP 18.1(b), a party requesting attorneyfees, "must devote a section of its opening briefto the request." Since neither party complied with this rule, their requests should be denied. Affirmed.

Brown, J. WE CONCUR:

# ~.lJ(J;j Siddoway, A.C.J. Kulik, J.

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