Citations and pinpoint citations are based on the Westlaw online version of the cited material.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

COVINGTON LAND, LLC, a Washington 

corporation,

Appellant,

v.

CITY OF COVINGTON, a municipal 

corporation and political subdivision of the 

State of Washington,

Respondent.

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No. 81232-7-I

DIVISION ONE

UNPUBLISHED OPINION

HAZELRIGG, J. — Covington Land, LLC seeks reversal of a superior court 

order dismissing with prejudice its Land Use Petition Act (LUPA)1 appeal for lack 

of jurisdiction based on invalid service of process on the City of Covington. 

Covington Land argues that the service was valid because LUPA does not require 

personal service on a city and because the service, though indirect, constituted

secondary or substitute service sufficient to commence a LUPA action. In the 

alternative, it argues that the City should be estopped from challenging service 

because its employees misled the process server, who reasonably believed that 

she served the appropriate party. Because the plain language of LUPA requires 

personal service and a petitioner must strictly comply with LUPA’s procedural 

requirements before invoking the superior court’s appellate jurisdiction, the service 

 

1 Ch. 26.70C RCW.
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was invalid. Estoppel is not warranted because Covington Land has not shown 

that the City’s employees had full knowledge of the facts or any duty to speak, or 

that Covington Land lacked knowledge of the facts or any convenient and available 

means of establishing such knowledge. We affirm.

FACTS

Covington Land owned, and proposed to redevelop, approximately 7.65 

acres located at 27552 Covington Way S.E., which is zoned for general 

commercial use. The City of Covington imposed conditions on its approval of the 

commercial site development permit that would preclude a significant portion of 

Covington Land’s proposed development. Covington Land appealed the 

conditions to the City of Covington Hearing Examiner. In a written decision dated 

November 18, 2019, the Hearing Examiner denied Covington Land’s appeal and 

sustained the City’s conditions.

Covington Land appealed the decision to the King County Superior Court 

under the Land Use Petition Act (LUPA). Covington Land filed its LUPA action on 

December 9, 2019. That day, at 9:54 a.m., Covington Land’s counsel emailed the 

LUPA petition and summons to a national professional process server with express 

instructions to serve the City Clerk for the City of Covington the same day and to

confirm service. At 3:04 p.m., Covington Land’s counsel was informed that service 

of the pleadings on the Covington City Clerk had been completed by process 

server Sandra Ginter.

On January 30, 2020, the City filed a motion to dismiss. In the motion, the 

City stated that Ginter had hand-delivered the LUPA summons and complaint to 
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the City’s Permit Center Manager, Kelly Thompson, not the City Clerk. The City 

argued that, because Ginter did not serve the City Clerk as required by LUPA, 

service was improper and the court was without jurisdiction.

The motion was supported by the declarations of Thompson and Robert 

Lindskov, the City Engineer who greeted Ginter at the front counter of City Hall on 

December 9, 2019. Lindskov stated that Ginter said she had something to drop 

off for the City and needed “someone I can give something to like a City Clerk or 

something.” He checked for the City Clerk in her office, but when he could not 

locate her, he asked Thompson if she would be willing to help the visitor. He did 

not inform Ginter that Thompson was not the City Clerk.

Thompson asserted that Ginter handed her a stack of papers. She stated 

that Ginter did not inform her that she was serving a lawsuit; ask for the Mayor, 

City Manager, City Clerk, or any of their designees; or ask for Thompson’s name 

or title. Thompson did not identify herself to Ginter or ask to whom the papers 

should be delivered.

Covington Land responded that the motion was not timely filed and that the 

City should be estopped from challenging service as insufficient. It requested that 

the court at least defer ruling to allow discovery regarding the circumstances 

surrounding service. Covington Land attached the email notification that it had 

received at 3:04 p.m. on December 9, 2019, which stated that Ginter had served 

the documents on “Kelly Anoma” at the front desk of City Hall. The email also 

included Ginter’s description of service: “Arrived at office at city hall, a man came 

out and asked if I had been helped[.] I said no, I explained I needed a city clerk, 
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he said let me get Kelly. Kelly anoma [sic] came forward and I handed her the 

documents.” In a declaration, Ginter stated that, based on Lindskov’s response to 

her request, she believed that Kelly was the City Clerk and that Lindskov was going 

to bring the City Clerk out to meet her. Ginter asserted that she said to the woman 

who came to the desk, “[Y]ou must be Kelly,” and the woman responded that she 

was. Ginter also stated that she asked Kelly for her last name, and Kelly told her 

that it was Anoma.

In a reply declaration, Thompson asserted that she did not identify herself 

as “Kelly Anoma” to Ginter, nor was she aware of any person by that name working 

at the City. She guessed that Ginter might have believed that her last name was 

Anoma based on her signature on the service slip. Thompson also noted that the 

City publishes a staff directory on its publicly available website that lists Sharon 

Scott as the City Clerk for the City of Covington.

On February 7, 2020, the court entered an order granting the City’s motion 

to dismiss for lack of jurisdiction “with the exception that the Court is reserving 

ruling on the issue of substitute secondary service.” The court authorized limited 

discovery on the issue and stated that it would entertain a motion after discovery 

was completed.

Covington Land served the City with interrogatories and proposed written 

deposition questions to be presented to Thompson. Thompson stated that, after 

receiving the documents from Ginter, she saw that the heading on the first page 

referenced “Covington Land, LLC,” so she gave the documents to Bryan Bykonen, 

a Senior City Planner working on the Covington Land project. The City stated in 
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response to Covington Land’s interrogatories that Bykonen sent the City Clerk an 

email at 4:56 p.m. on December 9, 2019 that included as an attachment the 

summons and petition. The Clerk replied to Bykonen on December 10, 2019 

acknowledging receipt of his email.

After completing the limited discovery authorized by the court, Covington 

Land filed a motion requesting that the court declare that service of process was 

timely or, in the alternative, find that the additional evidence produced from the 

limited discovery justified an evidentiary hearing on whether the City should be 

estopped from claiming insufficient service. On July 6, 2020, the superior court 

denied the motion, denied the request for an evidentiary hearing, and dismissed 

the petition in its entirety with prejudice.

Covington Land appealed from the February 7, 2020 decision. It filed an 

amended notice of appeal after the superior court denied its motion on July 6, 

2020.

ANALYSIS

Covington Land contends that the superior court erred in dismissing its 

LUPA appeal for failure to properly file and serve its petition within the statutory 

deadline. We review a trial court’s dismissal of an action on legal grounds de novo. 

Witt v. Port of Olympia, 126 Wn. App. 752, 757, 109 P.3d 489 (2005).

Except in certain limited circumstances, LUPA provides the exclusive 

means for judicial review of final land use decisions by local jurisdictions. RCW 

36.70C.030(1). LUPA was enacted “to reform the process for judicial review of 

land use decisions made by local jurisdictions[ ] by establishing uniform, expedited 
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appeal procedures and uniform criteria for reviewing such decisions[ ] in order to 

provide consistent, predictable, and timely judicial review.” RCW 36.70C.010. The 

superior court acts in its limited appellate capacity when reviewing an 

administrative decision. Fay v. Nw. Airlines, Inc., 115 Wn.2d 194, 197, 796 P.2d 

412 (1990). “‘[A]ll statutory requirements must be met before jurisdiction is 

properly invoked’” in an administrative appeal. Id. (quoting Spokane County v. 

Utils. & Transp. Comm’n, 47 Wn. App. 827, 830, 737 P.2d 1022 (1987)).

A party appealing a final local land use decision must file and serve the 

LUPA petition within 21 days of issuance of the land use decision. RCW 

36.7C.040(3). For purposes of this requirement, the date on which a land use 

decision is issued is “[t]hree days after a written decision is mailed by the local 

jurisdiction or, if not mailed, the date on which the local jurisdiction provides notice 

that a written decision is publicly available.” RCW 36.7C.040(4). LUPA specifies 

that “[s]ervice on the local jurisdiction must be by delivery of a copy of the petition 

to the persons identified by or pursuant to RCW 4.28.080 to receive service of 

process.” RCW 36.7C.040(5). Under the referenced statute, a summons in an 

action against any town or incorporated city “shall be served by delivering a copy 

. . . to the mayor, city manager, or, during normal office hours, to the mayor’s or 

city manager’s designated agent or the city clerk thereof.” RCW 4.28.080(2). The 

statute states that “[s]ervice made in the modes provided in this section is personal 

service.” RCW 4.28.080.

I. Validity of Service

A. Personal Service Requirement
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Covington Land first contends that service of process was sufficient to 

commence the LUPA action because RCW 36.70C.040(5) does not require 

personal service.2

Our fundamental duty in interpreting a statute is “to ascertain and implement 

the legislature’s intent.” Prosser Hill Coal. v. County of Spokane, 176 Wn. App. 

280, 288, 309 P.3d 1202 (2013). When interpreting a statute, courts first look to 

the plain language of the statute to discern its meaning. Kilian v. Atkinson, 147 

Wn.2d 16, 20–21, 50 P.3d 638 (2002). “We discern plain meaning from the

ordinary meaning of the language at issue, the context of the statute in which that 

provision is found, related provisions, and the statutory scheme as a whole.” 

Prosser Hill Coal., 176 Wn. App. at 290 (internal quotation marks omitted). We

must give meaning to every word and interpret the statute as it is written. Id. at 

288. If the statutory language is clear on its face, there is no need to employ the 

canons of statutory construction, review legislative history, or analyze relevant 

case law to ascertain the meaning of the statute. Kilian, 147 Wn.2d at 20–21. A 

statute is ambiguous only if it can reasonably be interpreted more than one way, 

not merely because “different interpretations are conceivable.” Id.

 

2 Covington Land states in its opening brief that “the filing and service deadline for the 

LUPA Petition was December 16, 2019” and states that it treated December 9, 2019 as the deadline 

“in an abundance of caution.” In its argument, it acknowledges that, “to be timely served, the filed 

LUPA Summons and Petition had to be delivered to the City Clerk by 5:00 p.m. on December 9, 

2020.” Although the City lists as an issue on appeal the date on which the statute of limitation began 

to run and devotes a section of its brief to that issue, Covington Land does not provide sufficient 

argument to raise this issue. See Palmer v. Jensen, 81 Wn. App. 148, 153, 913 P.2d 413 (1996) 

(“Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial 

consideration.”). Accordingly, we decline to consider this issue and treat December 9, 2020 as the 

filing deadline for Covington Land’s LUPA petition.
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Covington Land acknowledges that Washington courts have consistently 

held that the procedural requirements of LUPA must be strictly met before the 

superior court’s jurisdiction under the Act may be properly invoked. See, e.g.,

Durland v. San Juan County, 182 Wn.2d 55, 67, 340 P.3d 191 (2014) (“[W]e 

require strict compliance with LUPA’s bar against untimely or improperly served 

petitions.”); RST P’ship v. Chelan County, 9 Wn. App. 2d 169, 175, 442 P.3d 623 

(2019) (“The petitioner must strictly meet the procedural LUPA requirements 

before properly invoking a trial court’s appellate jurisdiction under the act.”); 

Citizens to Pres. Pioneer Park, LLC v. City of Mercer Island, 106 Wn. App. 461, 

467, 24 P.3d 1079 (2001) (“The procedural requirements of the Land Use Petition 

Act (LUPA) have to be strictly met before a trial court’s appellate jurisdiction under 

the Act is properly invoked.”).

However, Covington Land contends that the plain language of RCW 

36.70C.040(5) supports its position that hand-to-hand service is not required. The 

statute provides that service on a local jurisdiction must be accomplished “by 

delivery of a copy of the petition to the persons identified by or pursuant to RCW 

4.28.080 to receive service of process.” RCW 36.70C.040(5). Covington Land 

argues that the phrasing of the statute indicates that service may be accomplished 

by one of two methods: “(1) ‘Delivery’ of a copy of the petition to the persons 

identified by RCW 4.28.080; or (2) ‘Pursuant to RCW 4.28.080,’ which requires 

‘personal service.’” Therefore, Covington Land reasons the term “delivery” in RCW 

36.70C.040(5) cannot mean “personal service” because, if so interpreted, the term 

would be superfluous and redundant: “if the word [‘delivery’ in RCW 
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36.70C.040(5)] is to be given meaning, it must mean something different than 

‘pursuant to’ RCW 4.28.080.” Because of this, Covington Land contends that 

“[t]here is, at the very least, an ambiguity in LUPA regarding the modes of delivery 

authorized.”

The language of RCW 36.70C.040(5) and structure of RCW 4.28.080 make 

clear that Covington Land’s reading of these statutes is incorrect. Some 

subsections of RCW 4.28.080 specify persons to be served in certain types of 

actions. In reference to these subsections, the statute generally reads something 

like, “The summons shall be served by delivering a copy, if the action is against [a 

specified type of defendant], to [a specified person or type of person].” However, 

other subsections cross-reference different statutes that provide the applicable 

manner of service. In these instances, the statute reads something like, “The 

summons shall be served by delivering a copy, if the action is against [a specified 

type of defendant], as provided in [another statute].”

The specific subsection of RCW 4.28.080 concerning service on a town or 

city follows this same convention, including both specified persons to be served 

and a specified manner of service. RCW 4.28.080(2). In this subsection, the 

statute requires that the summons be served by delivery (1) to the Mayor or City 

Manager or (2) during normal office hours to the Mayor’s or City Manager’s 

designated agent or the City Clerk. Id.

Covington Land reads RCW 36.70C.040(5) to distinguish between “delivery 

of a copy of the petition” and service “pursuant to RCW 4.28.080.” This is not 

consistent with RCW 4.28.080. Rather, RCW 36.70C.040(5) provides that service 
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must be accomplished by delivery of a copy of the petition either (1) to the persons 

identified by RCW 4.28.080 to receive service of process or (2) in the manner 

provided by RCW 4.28.080. Although perhaps not a model of clarity, RCW 

36.70C.040(5) does not contain superfluous language and is not ambiguous. The 

plain language of RCW 36.70C.040(5) requires personal service as described in 

RCW 4.28.080.

B. Indirect Service 

Covington Land also contends that service of process was sufficient to 

commence the LUPA action because, although the delivery was indirect, it 

constituted “substitute or secondary service” on the City Clerk. Substitute service 

and “direct, hand-to-hand—but ‘secondhand’—service” are distinct concepts. See

Scanlan v. Townsend, 181 Wn.2d 838, 848, 336 P.3d 1155 (2014). RCW 

4.28.080(16) authorizes “substitute service—‘leaving a copy of the summons at 

the house of [the defendant’s] usual abode with some person of suitable age and 

discretion then resident therein’”—on a defendant not covered by any other 

subsection of the statute. See Scanlan, 181 Wn.2d at 847 (quoting former RCW 

4.28.080(15) (2012), recodified as RCW 4.28.080(16)). Covington Land’s 

argument does not appear to concern substitute service, so we will not address 

this issue.

In support of its argument, Covington Land cites cases in which Washington 

courts have found personal service adequate when accomplished by multiple 

people. See Scanlan, 181 Wn.2d at 854–56; Brown-Edwards v. Powell, 144 Wn. 

App. 109, 111–12, 182 P.3d 441 (2008); Reiner v. Pittsburg Des Moines Corp., 35 
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Wn. App. 331, 333–34, 666 P.2d 396 (1983). “[D]irect, hand-to-hand—but 

‘secondhand’—service” may be sufficient so long as the service is made by an 

allowable person. Scanlan, 181 Wn.2d at 848. “[A]ny person over 18 years of age 

who is competent to be a witness in the action, other than a party” may serve 

process. CR 4(c). This rule does not require that the server act at the behest of a 

party or even with knowledge that their actions constitute service:

Nothing in [CR 4(c)] requires that a process server have a contractual 

obligation to serve process. Nor is there any requirement of proof of 

intent to serve process. And we find nothing that would prohibit a 

person who comes into possession of a summons and complaint by 

defective service from being a competent process server.

Brown-Edwards, 144 Wn. App. at 112.

Covington Land argues that, even if personal service was required, the City 

Clerk was properly served by the collective efforts of Ginter, Thompson, and 

Bykonen. It contends that the fact that service was accomplished in part by City 

employees does not render the service ineffective because they are not named 

parties to the case. Accordingly, Covington Land contends that it strictly complied

with the timely service requirements under LUPA because actual service was 

accomplished on December 9, 2019.

The fate of this argument hinges on our conclusion regarding whether 

personal service is required in this instance. As noted above, we do not agree with 

Covington Land’s argument that the term “delivery” in RCW 36.70C.040(5) must 

mean something other than “personal service.” Because we conclude that LUPA 

requires personal service, Covington Land did not satisfy the service requirements 

even if secondary service is permissible because the petition was not personally 
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delivered to the City Clerk. Covington Land acknowledges that the Clerk received 

the petition “ultimately by email delivery” and “not by personal in-hand service 

delivery.” The cases relied on by Covington Land in support of their secondary 

service argument are inapposite because they all concerned hand-to-hand 

delivery. See Scanlan, 181 Wn.2d at 856; Brown-Edwards, 144 Wn. App. at 112; 

Reiner, 35 Wn. App. at 332.

The City also argues that secondary service is not allowable in this context 

because “personal service on anyone else but those individuals specifically named 

in RCW 4.48.080(2) is patently insufficient under LUPA.” It analogizes this case 

to Overhulse Neighborhood Association v. Thurston County, 94 Wn. App. 593,

598–99, 972 P.2d 470 (1999). In Overhulse, the petitioner in an action against a 

county delivered a copy of the LUPA petition to the office of the Board of 

Commissioners rather than to the County Auditor, as required by RCW 

36.70C.040(2) and RCW 4.28.080(1). Id. at 596–97. Division Two of this court 

held that substantial compliance, rather than strict compliance, with the service 

requirements was insufficient “[b]ecause LUPA provides unequivocal directives:”

“The Legislature has named a specific person who is to be served 

when the defendant is a government body. The applicable statutory 

clause is clear in its mandate. Service on anyone other than the 

Auditor is insufficient.” . . . [A]llowing service on an official other than 

the county auditor would render the provisions of RCW 

36.70C.040(5) and RCW 4.28.080 meaningless.

Id. at 598–99 (internal citations omitted) (quoting Nitardy v. Snohomish County, 

105 Wn.2d 133, 712 P.2d 296 (1986)).

Overhulse is instructive. The Legislature has also named a specific person 

to be served in an action against a town or city. See RCW 4.48.080(2). In the 
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cases cited by Covington Land, the courts analyzed only whether service was 

sufficient under RCW 4.28.080, not under LUPA. Further, none of those cases 

considered the subsection of RCW 4.28.080 relevant here. See Scanlan, 181 

Wn.2d at 854–56 (analyzing former RCW 4.28.080(15)); Brown-Edwards, 144 Wn. 

App. at 112 (analyzing former RCW 4.28.080(15)); Reiner, 35 Wn. App. at 333–34 

(analyzing RCW 4.28.080(10)). The service statute must be read in conjunction 

with LUPA, which requires strict compliance.

The City also points out that “[t]o allow parties to serve random city 

employees with litigation and then wait to see if it serendipitously makes its way to 

one of the individuals named in RCW 4.28.080 eventually would render 

meaningless the protections and [certainty] afforded by RCW 36.70C.040(5) and 

RCW 4.28.080.” As noted above, the stated purpose of LUPA is to create “uniform, 

expedited appeal procedures” to facilitate “consistent, predictable, and timely 

judicial review.” RCW 36.70C.010. This purpose is not advanced by allowing 

secondary service rather than strict compliance with the requirements laid out in 

the relevant statutes. The indirect delivery here was insufficient under LUPA.

II. Equitable Estoppel

Covington Land argues in the alternative that the City should be estopped 

from objecting to service because Ginter and Covington Land had a right to rely 

on the City employees’ actions implying that Thompson was the proper party to 

receive service. Covington Land argues that “the unique circumstances presented 
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in this case justify invoking the doctrine of equitable estoppel so as to allow [the] 

appeal to be decided on the merits.”

The doctrine of equitable estoppel is based on the principle that “a party 

should be held to a representation made or position assumed where inequitable 

consequences would otherwise result to another party who has justifiably and in 

good faith relied thereon.” Wilson v. Westinghouse Elec. Corp., 85 Wn.2d 78, 81, 

530 P.2d (1975).

The elements of equitable estoppel are: “(1) an admission, statement 

or act inconsistent with a claim afterwards asserted, (2) action by 

another in [reasonable] reliance upon that act, statement, or 

admission, and (3) injury to the relying party from allowing the first 

party to contradict or repudiate the prior act, statement, or 

admission.”

Lybbert v. Grant County, 141 Wn.2d 29, 35, 1 P.3d 1124 (2000) (alteration in 

original) (quoting Bd. of Regents of Univ. of Wash. v. City of Seattle, 108 Wn.2d 

545, 551, 741 P.2d 11 (1987)). These elements must be established by clear, 

cogent, and convincing evidence. Id. “The party asserting estoppel must show 

both lack of knowledge of the facts and the absence of any convenient and 

available means of acquiring such knowledge.” Overhulse, 94 Wn. App. at 600.

Washington courts have consistently recognized, under appropriate 

circumstances, the application of estoppel by silence. Sorenson v. Pyeatt, 158 

Wn.2d 523, 540, 146 P.3d 1172 (2006). The basic premise of this doctrine is that, 

“‘[i]f one maintains silence when in conscience [they] ought to speak, equity will 

debar [them] from speaking when in conscience [they] ought to have remained 

silent.’” Huff v. N. Pac. Ry. Co., 38 Wn.2d 103, 114–15, 228 P.2d 121 (1951)

(quoting Harms v. O’Connell Lumber Co., 181 Wash. 696, 700, 44 P.2d 785
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(1935)). Estoppel by silence will not arise unless an individual has full knowledge 

of the facts and a duty to speak:

“Full knowledge of the facts is essential to create an estoppel by 

silence or acquiescence. . . . Mere silence, without positive acts, to 

effect an estoppel, must have operated as a fraud, must have been 

intended to mislead, and itself must have actually misled. The party 

keeping silent must have known or had reasonable grounds for 

believing that the other party would rely and act upon [their] silence. 

The burden of showing these things rests upon the party invoking the 

estoppel.”

Consol. Freight Lines v. Groenen, 10 Wn.2d 672, 677–78, 117 P.2d 966 (1941) 

(emphasis omitted) (quoting Blanck v. Pioneer Mining Co., 93 Wash. 26, 34, 159 

P. 1077 (1916)).

Covington Land argues that “the failure of Lindskov and/or Thompson to 

clarify that Thompson was not, in fact, the City Clerk, constitutes exactly the 

circumstances where estoppel by silence is appropriate.” It argues that the 

circumstances of this case are particularly compelling because Ginter “was led to 

believe that she herself personally served the City Clerk” and that she “had good 

reason to form that belief.” The City responds that Ginter

could have easily asked Ms. Thompson her name and title, or even 

have inquired as to the name of the City Clerk. She did not. 

Covington Land had a number of convenient and simple means of 

acquiring the relevant knowledge, both at the time of service and in 

advance, and simply chose not to utilize them.

The City also points out that Ginter did not convey to Lindskov or Thompson that 

she was there to serve litigation or that she needed to serve it on the City Clerk of 

Covington. Despite the fact that Lindskov initially looked for the City Clerk, the City 

vehemently disagrees with Covington Land’s contention that Lindskov understood 

Ginter to be asking for the Clerk specifically.
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The City has the better argument. Covington Land concedes that neither 

Thompson nor Lindskov made any affirmative statement to Ginter that Thompson 

was the City Clerk or was authorized to accept service on the Clerk’s behalf.

Covington Land has not established that Thompson or Lindskov had full 

knowledge of the facts that Ginter needed to serve the City Clerk or that they had 

a duty to inform her that Thompson was not the City Clerk. Ginter could have 

easily ascertained whether Thompson was an appropriate party to receive service 

and failed to do so. As the City notes, Covington Land also failed to acquire the 

relevant knowledge and ensure that the proper party was served. Despite its 

reliance on a professional process server, “the plaintiff remains responsible for any 

failure to comply with the requirements for valid service of process.” Scanlan, 181 

Wn.2d at 856. Equitable estoppel is not appropriate.

3

Affirmed.

WE CONCUR:

 

3 Although Covington Land argued in its briefing that the superior court erred in denying its 

request for an evidentiary hearing on the issue of equitable estoppel, counsel conceded at oral 

argument that further discovery was not likely to clarify the issues and retracted its request for an 

evidentiary hearing.