IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

KHUSHDEV MANGAT and HARBHAJEN MANGAT, and the marital Community comprised thereof, Appellants,

SNOHOMISH COUNTY, a political Subdivision ofthe State ofWashington LUIGI GALLO, a single man, JOHANNES DANKERS and MARTHA DANKERS, and the marital community comprised thereof; Respondents. No. 68739-5-l/Linked w/67712-8- DIVISION ONE

UNPUBLISHED OPINION

FILED: August 26. 2013 Spearman, A.C.J.

— Because Khushdev and Harbhajen Mangat had no interest in real property owned by Johannes and Martha Dankers and Luigi Gallo, they had no standing to file a LUPA petition challenging the approval ofthe plat application subdividing the Dankers' and Gallo's real property. Additionally, the Mangats' writs of prohibition and mandamus seeking to enjoin approval ofthe plat application are barred by collateral estoppel. Finally, the Mangats' claim for damages under chapter 64.40 RCW for failure to timely act on an application for a permit is barred by the statute of
limitations. We affirm the trial court. FACTS This appeal arises out ofthe Mangats' failed attempt to purchase and develop two contiguous pieces of property, one owned by the Dankers and the other owned by CO CDNo. 68739-5-l/Linked w/67712-8-1/2
Gallo. The purchase and sale agreements contained identical terms: they allowed the Mangats to begin developing the land by seeking a plat application to subdivide the properties, but in the event the Mangats defaulted on their attempt to purchase, they

were required to turn over all materials related to the plat application to the Dankers and
Gallo. The Mangats were unable to secure financing and defaulted. The Dankers and Gallo continued the plat application process started by the Mangats. The Mangats sued the Dankers, Gallo, and Snohomish County (County), arguing that the substitution ofthe Dankers and Gallo on the application amounted to an unconstitutional taking oftheir property and that itviolated their right to substantive due process. That case was dismissed on summaryjudgment, and the appeal ofthat order, No. 67712-8-1, is linked with this appeal. 

### On May 11, 2011, a hearing examiner held a hearing on the plat application. On 

### May 17, the hearing examiner entered a decision granting approval of the plat application. The Mangats filed an "appeal" ofthe hearing examiner's decision to the 

### Snohomish County Council (Council). The Dankers and Gallo moved fordismissal of the appeal, and the Council granted dismissal on June 15, 2011. 

### On July 5, 2011, the Mangats filed a Land Use Petition Act (LUPA) appeal seeking review ofdecisions ofthe Council and the hearing examiner. The petition alsoNo. 68739-5-l/Linked w/67712-8-1/3 sought writs ofmandamus and prohibition against the County, as well as damages 

### againsttheCounty underchapter64.40 RCW. Id.1 In September 2011, the County moved for partial summaryjudgment, seeking dismissal ofthe Mangats' LUPA petition and the claims for writs ofmandamus and 

### prohibition inthe second lawsuit. Dankers and Gallo joined the motion. On October 19, 2011, Judge Farris dismissed the Mangats' LUPA petition and the claims for writs of mandamus and prohibition. On April 10, 2012, Judge Bowden dismissed the Mangats' 

### remaining claim fordamages against the County under ch. 64.40 RCW (for untimely processing of a permit application). The Mangats' appeal ofthose two orders is the subject ofthis opinion.
DISCUSSION 

### The Mangats' petitionchallenged the decisions of the hearing examiner and the Council under LUPA, and italso alleged three causes of action: (1) an application for a writ ofmandamus under RCW 7.16.160 compelling the County to rescind its decision 

### permitting the Dankers and Gallo to continuewith the platapplication; (2) an application for a writ ofprohibition under RCW7.16.160 prohibiting the County to permit the Dankers and Gallo to continue with the plat application; and (3) an action for damage 

### against the County for untimely processing ofthe application under ch. 64.40 RCW. We affirm summaryjudgment dismissal ofthese claims.

1TheMangats apparently hadfiled anotherlawsuit againstDankers and Gallo, claiming unjust enrichment. Theyvoluntarily dismissed that lawsuit, however, and it is not at issue here.No. 68739-5-l/Linked w/67712-8-1/4
Writs of mandamus and prohibition. The County argues the Mangats' applications for writs of mandamus and prohibition are barred by collateral estoppel. We
agree. Collateral estoppel, or issue preclusion, bars relitigation of an issue in a subsequent proceeding involving the same parties and is distinguished from claim 

### preclusion, or res judicata, in that instead of preventing a second assertion of the same claim or cause ofaction, itprevents a second litigation ofissues between the parties, 

### even though a different claim or cause of action is asserted. Christensen v. Grant County Hosp. Dist. No. 1. 152 Wn.2d 299, 306, 96 P.3d 957 (2004). 

### For collateral estoppel to apply, the County, as the party seeking application of the doctrine, must establish that (1) the issue decided inthe earlier proceeding was 

### identical to the issue presented in the later proceeding; (2) the earlier proceeding ended 

### in a judgmenton the merits; (3) the party againstwhom collateral estoppel is asserted was a partyto, orin privity with a partyto, the earlierproceeding; and (4) application of collateral estoppel does not work an injustice on the party against whomit is applied. Christensen, 152 Wn.2d at 307. Whether collateral estoppel applies is an issue of law that we review de novo. Id. at 305. 

### Here, all four elements weigh in favor of application of collateral estoppel. The 

### applications forwrits of mandamus and prohibition against the Countypresents an issue identical to that already decided in the firstlawsuit: whetherthe County should be 

### enjoinedfrom processing the platapplication. Additionally, the request forinjunctiveNo. 68739-5-l/Linked w/67712-8-1/5 relief inthe first lawsuit ended in a judgment on the merits against the Mangats, who
were parties to the litigation. Finally, application ofcollateral estoppel does not work an 

### injustice on the Mangats, given they fully litigated the issue of injunctive reliefagainst the county inthe other proceeding. As such, summaryjudgment dismissal of the applications for writs ofmandamus and prohibitionwas proper and we affirm. LUPA challenge to decisions of hearing examiner and County Council. The 

### County argues the Mangats do not have standing under LUPA to challenge the decisions ofthe hearing examiner and the County Council. We agree. 

### LUPA governsjudicial review of Washington land use decisions. HJS Dev.. Inc.

v. Pierce County ex rel. Dep't of Planning and Land Servs., 148 Wn.2d 451, 467, 61 

### P.3d 1141 (2003).With certain exceptions, LUPA provides the "exclusivemeans of 

### judicial review of land use decisions " RCW 36.70C.030(1). A person, other than the owner whose property is the subject of the land use decision, has standing to bring a 

### petition underLUPA ifthat person is orwould be "aggrieved or adverselyaffected" by the decision. RCW 36.70C.060(2). The Mangats' petitionsought review under RCW 36.70C.060(2), alleging they were aggrieved or adversely affected persons. 

### A person is "aggrieved or adversely affected" forpurposes ofLUPA "only when all of the following conditions are present": (1) the person is prejudiced orlikely to be prejudiced by the decision; (2) the localjurisdiction was required to consider that 

### person's asserted interests in making itsdecision; (3) afavorablejudgmentwould redress or substantially eliminate the prejudice; and (4) the person has exhausted herNo. 68739-5-l/Linked w/67712-8-1/6 administrative remedies. RCW 36.70C.060(2); Lauer v. Pierce County, 173 Wn.2d 242, 253-54, 267 P.3d 988 (2011). None ofthese conditions are applicable to the Mangats. When the Mangats defaulted under their purchase and sale contracts with the Dankers and Gallo, they lost 

### the right to purchase the property and were required to turn over to the Dankers and Gallo the maps, drawings, reports and otherwork product related to the subdivision of the land. There was at that point nothing left forthe Mangats to own, and they no longer 

### had any interest in the land being subdivided. As we held in our opinion of the Mangats' other appeal, "the Mangats had no interest, prospective or otherwise, in the Dankers' or Gallo's properties." As such, the County had no obligation to considerthe Mangats' asserted interests in deciding whetherto approve the plat application, and the Mangats suffered no prejudice fromthe subdivision. Inother words, the Mangats were not 

### "aggrieved or adverselyaffected" bythe approval of the plat, and they had no standing
under LUPA. Claim for damages under chapter 64.40 RCW. The County argues the trial court 

### properly dismissed the Mangats'claim for damages under chapter 64.40 RCW because itwas time barred. We agree. 

### Chapter 64.40 RCW sets forth a cause of action for owners of a property interest who have filed an application for a permit where an agency fails to act on the permitin a timely fashion:No. 68739-5-l/Linked w/67712-8-1/7 Owners of a property interest who have filed an application for a permit have an action for damages to obtain . . . relief from a failure to act within time limits established by law.... RCW 64.40.020(1). Here, the Mangats claimed the County failed to act on the permit withinthe 120 day time period established by RCW 36.70B.080(1) and Snohomish County Code (SCC) 30.70.110. The County admits it failed to act on the application withinthe 120 day time period, which expired in June 2008. The County argues, however, that the Mangats' failure-to-act claim is barred by the following 30-day limitation period set forth in the statute: 

### Any action to assert claims under the provisions of this chapter shall be commenced only within thirty days after all administrative remedies have been exhausted. RCW 64.40.030. 

### We agree with the County. Birnbaum v. Pierce County, 167 Wn. App. 728, 274 P.3d 1070, review denied, 175 Wn.2d 1018, 290 P.3d 994 (2012), a recent decision by 

### this court, is instructive on this issue. Inthat case, the plaintiffsubmitted an application 

### for a conditional use permit to build a recreational vehicle park and campground in 

### 2005, but the hearing examiner did not approve the permituntil 2010. Birnbaum, 167 Wn. App. at 734. We noted that according to the plainlanguage of RCW64.40.030 any 

### action asserting "claims under the provisions of this chapter shall be commenced only 

### within thirty days afterall administrative remedies have been exhausted." Because it was undisputed there was no adequate administrative remedy, we concluded that the statute of limitations commenced when the 120 day time limit was exceeded. We thenNo. 68739-5-l/Linked w/67712-8-1/8
held that Birnbaum's claim was time barred because itwas beyond dispute that more than thirty days had passed since the County had failed to act on the permit in 2005. The Mangats' attempt to distinguish Birnbaum by claiming_that their appeal to the county council ofthe hearing examiner's decision granting the plat application was an administrative remedy for their delay claim. Thus, they contend that the limitations 

### period did not commence until the county council denied their appeal on June 15, 2011. The contention is without merit. Chapter 64.40 RCW does not set forth any administrative remedies for failure to timely process a permit application. Moreover, the 

### Mangats cite no authority for their proposition that an appeal to the Council is an 

### administrative process designed to deal with claims forfailure to timely process permit applications. The decision of the Council was simplya review of the platapplication, not an administrative remedy for failure to timely process. As was the case inBirnbaum, 

### "the limitations period began when the 120 day time limit was exceeded." Birnbaum, 

### 167Wn. App. at 734. Here, that limitwas exceeded in June 2008, and the Mangats' 

### claim therefore expired before they filed suit in July 2011.2 The Mangats next argue the thirty-day statute oflimitation should have been 

### tolled because the Countyfailed to comply with SCC 30.70.110(5), which requires the

2TheMangats also argue they have a claim for damages underRCW 64.40.020 for theCounty's inaction in processing theapplication, which they describe as an "arbitrary delay" thatfits within the"final decision" prong of the statute. There is no cause ofaction, however, forarbitrary delay under thatprong of the statute, and we reject the argument. See Birnbaum. 167Wn. App. at 737; Covv. City ofDuvall, Wn. App. _, 298 P.3d 134(2013). Additionally, wedecline the Mangats' invitation to departfrom Birnbaum.No. 68739-5-l/Linked w/67712-8-1/9 

### County to notify a permit applicant inwriting ifthe County fails to act on the permit in a timely fashion: 

### The county shall notifythe applicant inwriting ifa notice of final decision on the project has not been made within the time limits 

### specified in this section. The notice shall include a statement of reasons why the time limits have not been met and an estimated date of issuance of a notice offinal decision. 

### SCC 30.70.110(5). But nothing in the plain language of this provisionaddresses tolling
a cause of action under chapter 64.40 RCW for failure to timely act on a permit, and the 

### Mangats cite no other authorityin support of their argument. Nor do they contend that theirfailure to timely file a claimagainstthe County occurred because the Countydid 

### notprovide the noticerequired in the ordinance. Moreover, the Mangats do not dispute that they were well aware of when the time for the Countyto act on theirapplication had 

### exceeded 120 days.3 Aswe statedin Birnbaum. the onus ofkeeping track ofwhen the 120daytime limitforfailure ofthe County to act isupon the applicant. Birnbaum, 167 Wn. App. at 734, n.1. Wereject the Mangats' arguments on this issue, and affirm
dismissal ofthe claim. Attorney fees on appeal. The Dankers and Gallo, along with the County, both 

### request anaward ofattorney fees onappeal under RAP 18.1 andRCW4.84.370, which provides for reasonable fees and costs incurred in appeal of a decision relating to development permits:

3It isundisputed thatin filing theapplication, theMangats wereassistedby a consultantwho had worked as a seniorplannerfor Snohomish County for 18years, andby hisown declaration, wasfamiliar with the running of the 120 day time period.No. 68739-5-l/Linked w/67712-8-1/10 

### (1) Notwithstanding any other provisions of this chapter, reasonable attorneys' fees and costs shall be awarded to the prevailing party or substantially prevailing party on appeal before the court ofappeals or the supreme court of a decision by a county, city, or town to issue, condition, or deny a development permit involving a site-specific rezone, zoning, plat, conditional use, variance, shoreline permit, building permit, site plan, or similar land use approval or decision. The court shall award and determine the amount of reasonable 

### attorneys' fees and costs under this section if: (a) The prevailing party on appeal was the prevailing or substantially prevailing party before the county, city, or town, or in a decision involving a substantial development permit 

### under chapter 90.58 RCW, the prevailing party on appeal was 

### the prevailing party or the substantially prevailing party before the shoreline hearings board; and 

### (b) Theprevailing party[s] on appeal was the prevailing party or substantially prevailing party in all prior judicialproceedings. 

### (2) In addition to the prevailing party under subsection (1) of this section, the county, city, or town whose decision is on appeal is considered a prevailing party if its decision is upheld at superior court and on appeal. RCW 4.84.370. 

### TheCounty, the Dankers, andGallo substantially prevailed in this appeal, which is aboutapproval of a platapplication, and both prevailed at thetrial court. Additionally, the Mangats failed to respond to this issue in theirbriefing. As such, we award reasonable fees and costs to both the County and to the Dankers and Gallo.
Affirmed. rftr\± eao-

# M2L

WE CONCUR:

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