Medical Lake Cemetery Ass'n v. Spokane County ( 2023 )

FILED
DECEMBER 21, 2023
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
MEDICAL LAKE CEMETERY, )
ASSOCIATION, a Washington non-profit ) No. 38850-6-III
Corporation, )
)
Respondent, )
)
DAVE AND JULIE ) UNPUBLISHED OPINION
TUELLER, husband and wife, WILLIAM )
A. YATES, an individual, JAMES )
JOHNSON, an individual, RENEE )
JOHNSON, an individual, ANNA M. )
OLSON, an individual, CAROL L. )
WHITEHEAD, an individual, ROBERT J. )
WHITEHEAD, an individual, PATRICIA )
A. APREGAN, an individual, DONNA )
WHITEHEAD, an individual, SHARON )
WHITEHEAD, an individual, ANTHONY )
D. WHITEHEAD, an individual, JOHN E )
WHITEHEAD, an individual, ANNA )
JOHNSON, an individual, JOSEPH )
DAVISON, an individual, JOSEPH )
R.YOUNG, an individual, PAMELA S. )
MCCOLLAM, an individual, and TOBY )
WILLIS, an individual, )
)
Petitioners, )
)
v. )
)
SPOKANE COUNTY, a political )
subdivision of the State of Washington; )
)
Respondent, )
No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
)
SPOKANE GUN CLUB, a Washington )
non-profit Corporation, )
)
Appellant. )
FEARING, C.J. — In this Land Use Petition Act (LUPA) case, chapter 36.70C
RCW, appellant Spokane Gun Club appeals the Pend Oreille County Superior Court’s
denial of a conditional use permit to operate a shooting range on the ground that the range
would violate the Spokane County Fairchild Air Force Base military airport overlay zone.
The superior court raised this issue on its own. A hearing examiner had approved the
permit, and an earlier superior court had remanded the case to the hearing examiner to
impose conditions on the permit. This appeal requires us to address numerous procedural
questions such as whether the superior court permissibly and on its own raised the issue
of the overlay zone and whether this court should decide the appeal on the basis of the
zone. The appeal also requires us to determine if the shooting range is an inconsistent
use for the rural traditional zone, in which it sits, or constitutes a recreational vehicle park
because of the presence of recreational vehicle parking. Finally, the appeal demands that
we resolve whether a decision by the Lincoln County Superior Court in an earlier LUPA
action prevents us from addressing the prohibition against recreational vehicle parks.
We decline to tackle the applicability of the military airport overlay zone. We
affirm the superior court’s reversal of the issuance of the conditional use permit,
however, on the basis that the gun club’s operations plan includes the presence of a
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recreational vehicle park within the meaning of the county zoning code. The code
prohibits a recreational vehicle park within the gun club’s zone.
FACTS
Appellant Spokane Gun Club purchased a 451-acre parcel outside the city of
Medical Lake with designs to transform the property into a shooting range. The property
sits adjacent to the Medical Lake Cemetery. The Medical Lake Cemetery was
established in the 1870s and was listed in the Washington State Heritage Register in
2018. Respondent Medical Lake Cemetery Association, a nonprofit organization,
operates the cemetery.
Spokane County’s Comprehensive Plan (SCCP) and Spokane County Zoning
Code (SCZC) designates the Spokane Gun Club’s 451-acre parcel as lying within the
county’s “rural traditional” zone. Rural traditional zoning covers farming, ranching,
large lot residences, and rural oriented recreation. SCZC 14.618.100. The Spokane
County zoning code permits a “gun and archery range” in resource lands zones, including
rural traditional zones, only with a conditional use permit. SCZC 14.616.220, Table 616-
1.
Elsewhere, Spokane County Zoning Code defines a “gun and archery range”:
A facility or area used for archery and/or the discharging of firearms
including rifles, pistols, or shotguns, for the purpose of target practice.
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SCZC 14.300.100 (emphasis added). The same code section defines “participant sports
and recreation” for both inside and outside:
Participant Sports and Recreation (indoor only): Participant sports
and recreation use in which the sport or recreation is conducted within an
enclosed structure. Examples include but are not limited to bowling alleys,
roller and ice-skating rinks, dance halls, racquetball courts, physical fitness
centers and gyms, and videogame parlors.
Participant Sports and Recreation (outdoor only): Participant sports
and recreation use in which the sport or recreation is conducted outside of
an enclosed structure. Examples include tennis courts, water slides, and
driving ranges.
SCZC 14.300.100.
Spokane County Comprehensive Plan, Chapter 3, RL-1 defines Rural Land Use,
Rural Character and Rural Land Use Categories, as “a traditional development setting
with low population density.” The same plan section limits uses in the Rural Traditional
Zone to “industries directly related to and dependent on natural resources.”
The Spokane County Zoning Code precludes a recreational vehicle
park/campground from a rural traditional zone. SCZC 14.618.220. The code defines a
“Recreational Vehicle Park/Campground” as
An area where facilities are provided for camping units as defined
herein, utilized by the public for camping[,] for recreation on a temporary
basis and not designed for long term occupancy. The recreational vehicle
park/campground may include recreational services, facilities, and activities
for utilization by the public that are typical and ordinary to the recreational
vehicle park/campground industry.
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SCZC 14.300.100 (emphasis added). The zoning code does not define the word
“facilities” as found twice in the definition of “recreational vehicle park.” A general
provision of the code requires words not defined to be “construed as defined in Webster’s
New Collegiate Dictionary.” SCZC 14.300.000(2).
The Spokane County Zoning Code defines
“camping units” as:
A vehicle designed and intended for temporary occupancy by
persons engaged in camping or use of a camping unit for recreation.
Camping units include but are not limited to recreational vehicles,
recreational park trailers, travel trailers and campers . . . and other similar
shelters.
SCZC 14.300.100 (emphasis added). The Code defines a recreational vehicle:
Recreational Vehicle (RV): A vehicular type portable structure
without permanent foundation primarily designed as temporary living
quarters for recreational, camping, or travel use, with or without motor
power, and occupied in any one place for a period not exceeding 30 days.
This includes, but is not limited to, travel trailers, truck campers, camping
trailers, and self-propelled motor homes.
SCZC 14.300.100.
Spokane County Zoning Code 14.612.240(5) lists numerous requirements to
operate a recreational vehicle park. The list mentions accessory uses permitted in a park.
The accessory uses include:
management headquarters, recreational facilities, restrooms,
dumping stations, shower, laundry facilities, and other uses and structures
customarily incidental to operation of a recreational vehicle park.
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Spokane Gun Club’s proposed shooting range would sit near Fairchild Air Force
Base (Fairchild). As a result, the club’s proposed range lies inside the Spokane County
Zoning Code’s Fairchild Air Force Base Overlay Zone (military airport overlay zone or
overlay zone). SCZC 14.702A.100. The zoning code prohibits incompatible uses to the
overlay zone. One code section prohibits uses catalogued as “high intensity uses” if the
use encourages concentrations of people exceeding 180 persons per net acre.
SCZC 14.702A.430(3). This list includes “spectator sports.” SCZC 14.702A.430(3).
SCZC 14.702A.430(3) further precludes other uses regardless of the number of persons
attracted:
Notwithstanding any other provision in this section, non-aviation
related museums, libraries, race tracks, hotels, motels, resorts, group camps,
non-aviation related colleges and universities, participant sports and
recreation, amusement parks, recreational vehicle parks, entertainment
uses, cultural facilities, public assembly facilities (concert halls, theaters,
stadiums, amphitheaters, arenas, community centers, churches and similar
facilities) are not permitted.
SCZC 14.702A.430(3) (emphasis added).
In 2019, the Spokane Gun Club sought a conditional use permit from the Spokane
County Planning Department to develop the shooting range within the rural traditional
zone. In a July 11, 2019 letter from President John Cushman of the Spokane Gun Club to
neighbors of the proposed gun range, Cushman wrote, in part:
The project scope includes a club house, storage/maintenance
facility, trap/skeet stations and related sitework for access, landscaping,
utilities, parking and site security. Open site areas will be improved to
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provide “dry camping” for RV’s attending Regional and State level
competitions. Additional scope may include a fully contained pistol range,
a sporting clay course, 5-Stand shooting, International Trap and utility
connections for short-term RV use at periodic events. Inclusion of any part
of these additional scope elements will be dependent on the design
response, regulatory approval, and funds available.
Facilities will be sized to accommodate State and Regional
competitive events.
Administrative Record (AR) at 503 (emphasis added).
During a conference with the Spokane County Planning Department, the Spokane
Gun Club disclosed that the public will enjoy access to the gun range. An August 21,
2019 letter from the club to the planning department stated that the new range would
provide sport opportunities not only to club members, but to the public.
In January 2020, the gun club submitted to the county an updated operations plan,
which proposed the following hours of operation:
The site will be open from 10:00 a.m. to dusk on Wednesday,
Saturday and Sunday. Days and hours of operation may be restricted or
expanded depending on expected usage, demand, or multi-day events.
Maximum operating hours (depending on demand) will be 9:00 a.m. to 7
p.m., Wednesday through Sunday.
AR at 315-16. The January 2020 operations plan also announced the club’s plan to host
regional competitions:
The Gun Club could potentially host five regional competitions per
year with participation varying from 50 shooters for day events up to 150
shooters for multi-day events. Two of the hosted events are multi-day
events: (i) a three-day State shoot in June with 120 participants that takes
place from Friday through Sunday; and (ii) the five-day Pacific
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International Trapshooting Association (PITA) shoot in August with 150
shooters that takes place from Wednesday through Sunday. . . .
The Club could potentially host, on average, two competitive shoots
per month during the months of April through October, with the potential to
host additional competitive shoots on available weekends, pending interest.
AR at 316.
The January 20, 2000 operations plan further read, in part:
A. Business Operation. . . .
In addition to shooting venues, the Club will develop a club house
that will contain the following elements: meeting rooms, industrial kitchen
and/or food preparation area for feeding visitors at events, pro shop,
bathrooms, storage facilities, and other amenities as necessary to suit the
needs of the Club. . . .
....
D. Parking. Paved vehicle parking is located near the South border
of the property and is accessible from Thorpe Rd. . . . Reasonable diligence
(see attached Site Plan). . . . The Club also plans to provide approximately
45 parking spaces for self-contained recreational vehicles (without any
hookups or connections to services) for multi-day events. This parking will
facilitate out-of-town participants at the Club’s multi-day events. No
facilities (water, electricity, sewer, restrooms, showers or other facilities)
will be provided for recreational vehicles. All parking and use of
recreational vehicles will be in connection with the use of the Club for
shooting activities and will be limited to the time period of a shooting event
or competition hosted by the Club. The longest shooting event currently
planned by the Club is five or six days, resulting in the maximum
recreational vehicle parking permitted for the property to be six or seven
nights (plus a reasonable period of time before and after events to facilitate
members or invitees who travel significant distances to attend a Club
event).
....
F. Security. The Club will install perimeter fencing around most of
the Club facilities. Gates will control access in and out of the facility after
normal operating hours. The Club will install electronic surveillance and
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security alarms to monitor the facility. Outdoor lighting (dark-sky
complaint) will be installed to provide additional security.
....
H. Sanity Facilities. All bathrooms and plumbing will be located in
the club house. The facility will include a septic tank and drain field, all
built to county code.
AR at 315-17.
The planning department prepared a staff report regarding the proposed gun range.
In the single paragraph analyzing the gun range’s location within the Fairchild Air Force
Base airport overlay zone, the report read:
The subject property is located within the Fairchild Air Force Base
Overlay (FOZ) zone and within Military Influence Area (MIA) 3/4.
Section 14.702A.430. Compatible Uses and Densities prohibits non-
residential uses that encourage substantial concentrations of people
exceeding 180 persons per acre. The proposed use will not exceed this
density limitation. This section goes on to state that participant sports and
recreation and public assembly will not be permitted. The Zoning Code
specifically defines ‘participant sports’ and ‘gun and archery ranges’ as
separate uses and Table 618-1, Rural Zones Matrix, lists a gun and archery
range, and recreational area, commercial as separate uses, as well.
Additionally, the use will not be open to the general public. The
application materials were circulated to Fairchild Air Force Base for review
and comments were received which limit lighting, use of rifles, shooting
direction, and type of ammunition permitted, among other items.
AR at 624.
A representative of Fairchild Air Force Base submitted a letter to the planning
department summarizing the conditions it would require on Spokane Gun Club’s
shooting range. The letter declared that the gun range must incorporate safety features to
ensure a lack of danger to the base or to low flying aircraft. Such features included no
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rifles, a fully baffled pistol range, a shotgun range designed and located so that a shot
could not reach flying aircraft, and a prohibition on shooting at or in the vicinity of an
aircraft flight path. Spokane Gun Club responded with a letter indicating agreement with
the base’s conditions. One opponent to the conditional use permit submitted a letter that
declared a belief that the shooting range would violate the military airport overlay zone.
In its written report and when providing testimony, the planning department
concluded that the Spokane Gun Club’s proposal to include forty-five recreational
vehicle parking spaces did not render the use a “recreational vehicle park/campground”
under the zoning code. The department recommended limiting the use of recreational
vehicles to those dates when the gun range would host multi-day competitions.
This appeal entails a lengthy procedural history. Under the Spokane County
Zoning Code, an application for a conditional use permit requires approval from a
hearing examiner. On February 5, 2020, a Spokane County hearing examiner conducted
a hearing on the Spokane Gun Club’s application. The Medical Lake Cemetery
Association, cemetery burial plot owners, family members of plot owners, and nearby
homeowners opposed the conditional use permit. Opposing testimony also requested that
days of operation be limited.
During the hearing examiner hearing, a representative from the Spokane County
Planning Department testified regarding the site’s location within the Fairchild Air Force
Base Overlay Zone:
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I’d like to note that the subject property is within a military area of
3/4 for the Fairchild Air Force Base and within the Fairchild Air Force
Base Overlay Zone. And so based on that, Section 14.702A.430 which
identifies compatible uses and densities and prohibits non-residential uses
that encourage substantial concentrations of people exceeding 180 persons
per acre, the proposed use will not exceed that density limitation based on
the large acreage size. The section goes on to state that participant sports
and recreation and public assembly will not be permitted.
And the reason I pointed out the definition for a gun and archery
range is that I wanted to point out the fact that the Zoning Code specifically
defines participant sports as one definition and then defines gun and
archery ranges as separate uses. And Table 618-1 of the Rural Zones
Matrix lists the gun and archery range and a recreational commercial area
as separate uses as well.
So, it has been determined by the Department of Building and
Planning that the gun and archery range is separate from a participant sports
and recreation use which is not permitted under an MIA 3/4. Additionally,
the use will not be open to the general public. And as I mentioned, those
application materials were circulated to Fairchild Air Force Base for review
and those comments were received which limits lighting, use of rifle,
shooting direction, type of ammunition among other items.
Clerk’s Papers (CP) at 757-58 (emphasis added).
During the hearing examiner hearing, a representative of the Spokane Gun Club
testified:
. . . I would like to speak to the RV parking and it’s [sic] function
both in the recreational use and the competitive use of this facility.
First, this is primarily a recreational facility. The competitive events
that we bring are interesting and they’re part of our business plan, part of
our business model to make this viable. But, this is about community
shooting, club shooting, and this is how we operate our facility now and
what we intend to do for the future. Hopefully, for a bigger population.
Many of our guests arrive in RV’s. There is, you know, I don’t drive
an RV out there, but the fella that drives from Missoula, they’d travel a
circuit and go to these venues and many of them show up in RV’s, and they
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might visit us for a day or two and move on. If they come out for an event,
they’ll be there for a couple of days.
CP at 782-83. The same witness testified that the club intends for all age groups to visit
the shooting range.
The hearing examiner issued a final decision on July 27, 2020. The decision
granted the conditional use permit for the operation of the Spokane Gun Club shooting
range. In his written decision, the hearing examiner wrote:
. . . negotiations have taken place between the gun club and Fairchild
Airforce Base to arrive at specific conditions upon operation of the gun
range so as to avoid danger or conflicts with the Airforce Base.
CP at 120. The hearing examiner found:
Suggested requirements received from Fairchild Airforce Base
include no rifle use except for shotguns for trap and skeet shooting, any
pistol use will be fully baffled and contained, shooting direction shall be
north, only standard shotgun shells shall be permitted, and any lighting of
the property will be “dark sky” compliant.
CP at 122. The examiner further found:
The conditions of approval provided by the Airforce Base are
acceptable by [Spokane Gun Club] and will be observed.
CP at 123. The hearing examiner did not explicitly rule that the proposed use of the land
conformed to the Fairchild Air Force Base military overlay zone as written in the
Spokane County zoning code. The record does not show that the hearing examiner
analyzed whether the shooting of firearms constituted “participant sports and recreation”
within the meaning of the zoning code’s bar of such activity adjacent to a military base.
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The hearing examiner addressed the Medical Lake Cemetery Association’s
contention that the Spokane Gun Club’s plans violated the zoning code because the plans
included a recreational vehicle park. The examiner declined to classify the proposed use
as a recreational vehicle park because the gun club does not intend to provide utilities for
the vehicles. The hearing examiner emphasized the zoning code’s definition of a
recreational vehicle park as “[a]n area where facilities are provided” for camping units or
recreational vehicles. SCZC 14.300.100 (emphasis added). The Zoning Code does not
define the term “facilities.” Thus, the hearing examiner concluded:
In the absence of evidence from any party regarding the definition of
the term “facilities” as used in the definition of Recreational Vehicle
Park/Campground, the Hearing Examiner takes notice that that the term
when used in reference to RVs and RV parks, is typically used to refer to
the ability to “hook up” the RV to a water source, to a source of electricity,
and/or a place for the disposal of greywater (sewer products) from the RV
at the site or in the RV park complex.
Under that definition of “facilities” the parking spaces sized to
accommodate RVs proposed at the proposed gun range do not rise to a
Recreational Vehicle Park/Campground. The availability of prepared food
within the clubhouse or restrooms on the site do not fall within the typical
usage of the term “facilities” as is taken notice of.
CP at 135. The hearing examiner permitted recreational vehicles at the site during
shooting competitions but required a quiet time between 9:00 p.m. and 7:00 a.m.
The Medical Lake Cemetery Association and eighteen owners of burial plots
inside the cemetery (collectively the cemetery association) filed a LUPA action in
Lincoln County Superior Court requesting reversal of the hearing examiner and denial of
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the conditional use permit. The cemetery association argued that the gun range created a
nuisance, constituted a taking of property, and violated their plot owners’ right to
exercise religion. The association alleged that the hearing examiner committed legal
error when ruling that the proposed use constituted a “gun range” with the meaning of the
Spokane County Zoning Code and entailed “target practice” under the code, while
denying that the proposed uses involved competitive competitions at a commercial sport-
shooting complex in conflict with a rural traditional zone. The cemetery association also
alleged that the hearing examiner committed legal error when failing to recognize that
overnight recreational vehicle parking turned the use into a recreational vehicle park in
violation of the zoning code. Some of the plot owners contended they lacked notice of
the application for the conditional use permit such that Spokane County and the gun club
violated due process. The cemetery association asserted that the hearing examiner acted
with bias and with undue influence from one of the Spokane County commissioners. The
cemetery did not contend, in the Lincoln County Superior Court LUPA action, that the
proposed use violated the Fairchild Air Force Base Overlay Zone.
The Lincoln County Superior Court denied the cemetery association’s request for
rejection of the conditional use permit. Nevertheless, in a February 2021 memorandum
decision, the court remanded to the hearing examiner to impose additional noise
mitigation on the gun range and wrote:
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This court finds that based upon the evidence provided to date, the
Hearing Examiner’s decision to grant the SGC’s [Spokane Gun Club’s]
CUP [conditional use permit] and allow it the right to shoot five days per
week up to ten hours per day for seven months per year without any
mitigating conditions other than moving the proposed site 300 feet east was
not supported by substantial evidence and is not compatible with the
petitioners’ uses of their respective properties. Also, the SGC’s previous
use in a residential area of Spokane Valley was generally up to three days
per week, usually on Wednesdays and Saturdays and at times Sundays and
other times during a multi-day event. In spite of the claimed reduction in
total participation during a competitive shoot, the proposed allowance far
exceeds what [it] had previously been allowed on a weekly basis.
Therefore, this court is remanding this back to the Hearing Examiner
to address this court’s concerns and the efficacy of the possible mitigating
conditions listed above and whether such conditions or others should be
imposed.
CP at 280. The Lincoln County court concluded that occasional dry camping does not
fall within the definition of a “Recreational Vehicle Park/Campground” under SCZC
14.300.100.
The Lincoln County Superior Court did not resolve whether or not the proposed
shooting range conflicted with the Spokane County Zoning Code’s prohibitions inside a
military airport overlay zone. No one appealed the Lincoln County Superior Court’s
ruling to this Court of Appeals.
The Spokane County hearing examiner, on April 22, 2021, issued “supplemental
findings of fact, conclusions of law and decision on remand.” CP at 315-43. In response
to the superior court’s remand order, the examiner imposed additional conditions on the
approval of the conditional use permit:
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6. The days and hours of operation of the gun range for shooting
shall be limited to Wednesday, Friday, Saturday, and Sunday between
10:00 a.m. and dusk or 7:00 p.m. whichever is earlier. . . .
....
10. Up to five (5) multi day regional shooting tournaments hosted
by the SGC will be allowed at the gun range. Those tournaments shall
occur no more than one tournament during each of the following months:
April, May, June, August, and September.
CP at 333-35. These conditions prohibit the Spokane Gun Club from operating on
Thursdays and from hosting a regional shooting tournament during the month of July.
The hearing examiner also required that the gun club erect an acoustic berm, that the
range be closed on certain holidays, that the gun range cease firing during funerals or
memorial services, and that shooting cease for thirty minutes during visits by individuals
or groups at the cemetery. As before, the hearing examiner never deliberately addressed
whether a shooting range constituted a participant sport and was prohibited within the
military airport overlay zone within the meaning of the Spokane County Zoning Code.
PROCEDURE
This appeal arises from a second land use petition case, filed this time in Pend
Oreille County Superior Court by the Medical Lake Cemetery Association, challenging
the hearing examiner’s remand decision. This second petition repeated similar
allegations as asserted in the Lincoln County Superior Court petition and utilized much of
the same language. The Pend Oreille County petition added that the hearing examiner
engaged in improper communications with Spokane County employees and thereby
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violated Washington’s Open Public Meetings Act, chapter 42.30 RCW. The second
petition also contended that the hearing examiner failed to enter sufficient mitigation
requirements.
In the Pend Oreille County Superior Court LUPA petition, the cemetery
association repeated its allegation that the Spokane Gun Club’s proposed use went
beyond the definition of a gun range and instead entailed competitions in violation of the
Spokane County Zoning Code. The association also repeated its allegation that the
proposed use constituted a recreational vehicle campground in violation of the zoning
code. In its petition, the cemetery association never expressly suggested that the
proposed use violated the Fairchild Air Force Base Overlay Zone.
During the Pend Oreille County Superior Court proceeding, the superior court
never asked the parties to brief or address the question of whether the Spokane Gun Club
shooting range violated the Spokane County Zoning Code prohibitions attended to the
military airport overlay zone. In a forty-two-page memorandum decision, the court
reversed the grant of the conditional use permit. The superior court concluded that the
gun range was not a permitted use in the military airport overlay zone.
The Spokane Gun Club appealed the Pend Oreille County Superior Court’s
decision to this court. The Medical Lake Cemetery Association did not cross appeal.
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LAW AND ANALYSIS
Before this court, the parties assert a number of contentions and cross-contentions
regarding the opposing party’s failure to assert arguments at various stages of the
litigation, including this stage before this appellate court. These arguments of waiver
require a score card to follow and to distinguish them from related arguments. We must
address most of these contentions before addressing the merits of the dispute.
Before this court, the Spokane Gun Club assigns three errors to the hearing
examiner’s decision on remand from the Lincoln County Superior Court. First, the
hearing examiner should have provided notice and an opportunity to be heard before
prohibiting tournaments in July and before proscribing shooting range operations.
Second, the hearing examiner substantively erred when it restricted the gun club from
shooting tournaments during the month of July. Third, the hearing examiner mistakenly
precluded shooting range operations on Thursdays.
In its opening brief to this court, the Spokane Gun Club does not assign error to
the Pend Oreille County Superior Court’s ruling. Nevertheless, the club contends that the
Pend Oreille County court lacked authority to invalidate the conditional use permit
because the Medical Lake Cemetery Association never appealed the Lincoln County
Superior Court’s ruling that affirmed, with modifications, the issuance of the use permit.
In turn, according to the gun club, the Pend Oreille County Superior Court should have
limited its review to the issues attended to the cemetery association’s LUPA action.
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Those issues included whether the hearing examiner committed error when, on remand
from the Lincoln County Superior Court, the examiner imposed the limitations in July
and on Thursday. In its opening brief, the gun club also asserts that the Lincoln County
Superior Court’s affirmation of the conditional use permit became the law of the case.
In its responsive brief, the Medical Lake Cemetery Association assigns no errors
to the hearing examiner’s decision. The cemetery association only vaguely seeks to
affirm the Pend Oreille County Superior Court’s ruling voiding the conditional use permit
based on the military airport overlay zone. Instead, the cemetery association
substantively argues that a gun range is incompatible with the Spokane County
Comprehensive Plan and Spokane County Zoning Code’s descriptions of rural traditional
zones and a historic and cultural resource center. The association also argues that the
planned development includes an impermissible recreational vehicle park. Finally, the
cemetery association argues that the grant of the conditional use permit constitutes a
regulatory taking under the United States Constitution’s Fifth Amendment.
Procedurally, the cemetery association contends that the Spokane Gun Club and
Spokane County failed to give proper notice to all individuals, holding property rights in
the cemetery, of the gun club’s request for a conditional use permit. The cemetery
association also asserts that Spokane County colluded with the Spokane Gun Club to
effectuate the hearing examiner’s unlawful approval of the conditional use permit
because of the county’s obsession with increasing economic activity.
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The Spokane Gun Club seeks to bar the Medical Lake Cemetery Association from
advocating for invalidation of the conditional use permit on the ground that the cemetery
association never cross appealed the Pend Oreille County Superior Court’s decision. As
a result, we asked both parties to address the ramifications of the cemetery association’s
failure to cross appeal and whether that failure requires us to affirm the issuance of the
conditional use permit.
In its opening brief, the Spokane Gun Club ignores the ruling of the Pend Oreille
County Superior Court, which ruling invalidated the conditional use permit in its entirety.
The gun club correctly notes that, with the appeal to this court, we review the hearing
examiner’s decision, not the superior court’s ruling. Under LUPA, we review the
decision of the local jurisdiction’s body or officer with the highest level of authority to
make the determination, including those with authority to hear appeals. Lakeside
Industries v. Thurston County, 119 Wn. App. 886, 894, 83 P.3d 433 (2004). We stand in
the same position as the superior court. Fischer Studio Building Condominium Owners
Association v. City of Seattle, 25 Wn. App. 2d 593, 599, 524 P.3d 708 (2023). Therefore,
the gun club assigns no error to the superior court’s decision. In turn, the cemetery
association seeks to preclude the gun club from seeking to overturn the Pend Oreille
County Superior Court’s ruling because of the club’s failure to assign error to the
superior court’s decision.
20
No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
Because of the rule that we review the hearing examiner’s decision, because of
Spokane Gun Club’s avoidance of the Pend Oreille County Superior Court’s ruling, and
because of the Medical Lake Cemetery Association’s failure to sufficiently discuss the
military airport overlay zone in its opening brief, we directed the parties to brief some
more questions. First, did the superior court possess authority to base its decision on the
military overlay zone when the Medical Lake Cemetery Association never asserted this
provision of the Spokane County Zoning Code? Second, did the superior court properly
base its decision on the overlay zone when it gave the parties no notice that it might base
its decision on this ground? Third, assuming the superior court lacked the authority to
base its decision on the overlay zone, may this Court of Appeals address the applicability
of the overlay zone after giving the parties an opportunity to brief the merits of the zone’s
application? Fourth, does the siting of the gun club conflict with the language of the
military installation overlay section of the zoning code?
On August 31, 2023, the Washington Supreme Court issued a decision in Dalton
M, LLC v. North Cascade Trust Services, Inc., 2 Wn.3d 36, 534 P.3d 339 (2023). The
decision addresses the circumstances under which an appellate court may raise issues on
its own pursuant to RAP 12.1(b). We once again asked the parties to answer a question.
We posed the question of whether the Supreme Court’s decision Dalton M, LLC v. North
Cascade Trust Services precluded this court from resolving the case on the applicability
of the Fairchild Air Force Base military airport overlay zone.
21
No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
We enter a labyrinth of procedural questions. We rule that the cemetery
association may seek to affirm the superior court’s invalidation of the conditional use
permit despite having failed to cross appeal. We hold that the Lincoln County Superior
Court’s ruling did not become the law of the case and the Medical Lake Cemetery
Association could continue to challenge the validity of the conditional use permit during
the land use petition proceeding before the Pend Oreille County Superior Court. We
further hold that the Pend Oreille County Superior Court should not have denied the
conditional use permit on a ground not asserted by the cemetery association without first
giving the parties an opportunity to address the applicability. We, in turn, decline to
address the gun range’s incompatibility with the military airport overlay zone. Finally,
we hold that the gun club’s proposed recreational vehicle parking area constitutes a
recreational vehicle park in violation of the Spokane County Zoning Code.
Issue 1: May the Medical Lake Cemetery Association gain affirmative relief from
this court in the form of invalidation of the conditional use permit when the cemetery
association never cross appealed from the Pend Oreille County Superior Court?
Answer 1: We do not answer this question because we do not characterize the
cemetery association’s request as affirmative relief.
In this court, the Medical Lake Cemetery Association seeks to invalidate the
Spokane Gun Club’s conditional use permit on numerous grounds. In response, the gun
club contends the cemetery association may not seek this disposition because the
22
No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
association did not cross appeal the Pend Oreille County Superior Court’s decision. The
gun club asserts that this court must limit its review to the club’s appeal that challenges
the conditions of the conditional use permit. In so responding, the gun club characterizes
the cemetery association’s position as seeking affirmative relief.
RAP 2.4(a) reads in part:
The appellate court will grant a respondent affirmative relief by
modifying the decision which is the subject matter of the review only (1) if
the respondent also seeks review of the decision by the timely filing of a
notice of appeal or a notice of discretionary review, or (2) if demanded by
the necessities of the case.
(Emphasis added.) The Spokane Gun Club emphasizes that the hearing examiner’s
decision, not the Pend Oreille County Superior Court’s decision, is the decision on
review.
None of the decisions applying RAP 2.4(a) entail the Court of Appeals
considering a superior court’s ruling that reviewed an administrative agency or hearing
officer. Since this court, under established precedent, reviews the Spokane County
hearing examiner’s decision, we face the quandary of whether we should permit the
Medical Lake Cemetery Association to argue against the validity of the conditional use
permit when it never appealed the superior court decision.
We observe that a party appeals from a final judgment. RAP 2.2(a)(1). A final
judgment is a court’s last action settling the rights of the parties and disposing of the
issues in controversy. State v. Taylor, 150 Wn.2d 599, 602, 80 P.3d 605 (2003). The
23
No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
final judgment in this case was the decision of the Pend Oreille County Superior Court.
The cemetery association had no incentive to appeal from the superior court’s decision,
which decision granted the relief it sought. The cemetery association therefore does not
seek affirmative relief, because it does not seek a change from the final trial decision. A
party seeks affirmative relief when it wishes for the Court of Appeals to change the final
result at trial. State v. Sims, 171 Wn.2d 436, 442, 256 P.3d 285 (2011).
Despite our review of the hearing examiner’s decision, the proceeding came to us
from the Pend Oreille County Superior Court. The Spokane Gun Club appealed, to this
court, the superior court’s judgment in favor of the cemetery association, not the hearing
examiner’s ruling. A cross appeal generally seeks review of a ruling, from which the
appellant does not seek relief, entered by the superior court. Although it also seeks relief
from some of the conditions of the hearing examiner’s ruling, the gun club effectively
seeks relief from the superior court’s ruling. The cemetery association only seeks to
affirm that same ruling of the superior court. A party filing a cross appeal to a decision
wholly in its favor makes no sense. Our adopting of the gun club’s position would be
tantamount to pretending that the superior court never issued a decision.
Issue 2: Does the Medical Lake Cemetery Association’s failure to appeal the
Lincoln County Superior Court’s February 2021 ruling preclude the cemetery
association from seeking the invalidity of the conditional use permit approved by the
hearing examiner?
24
No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
Answer 2: No.
The Medical Lake Cemetery Association challenged the hearing examiner’s
issuance of the Spokane Gun Club’s conditional use permit in the cemetery association’s
first land use act petition case before the Lincoln County Superior Court. The superior
court affirmed the issuance of the permit, but remanded for the hearing examiner to
impose conditions that would reduce noise and restrict interferences with families visiting
the cemetery. When affirming the issuance of the permit, the superior court ruled, among
other rulings, that the gun club’s proposed parking area for recreational vehicles did not
constitute an illegal recreational vehicle park under the Spokane County Zoning Code.
In this appeal to the Court of Appeals, the gun club contends that the decision
affirming the issuance of the conditional use permit became final because the cemetery
association did not appeal the Lincoln County Superior Court’s approval of the permit.
The gun club asks this court to reverse the Pend Oreille County Superior Court on the
basis that the law of the case doctrine precluded further challenge to the permit as
opposed to conditions imposed on the permit. Under the gun club’s view of the law of
the case, this court should not entertain any argument by the cemetery association that the
club’s proposed use violates zoning restrictions in a military airport overlay zone or
restrictions against a recreational vehicle park. The dissent adopts the Spokane Gun
Club’s view. Under the gun club’s logic, this court’s review is narrowly limited to the
25
No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
specific decisions made by the hearing examiner on remand. The gun club’s argument
suffers flaws.
The Spokane Gun Club’s contention assumes that the cemetery association held
the right to appeal the Lincoln County Superior Court ruling. We question this
assumption. Because the Lincoln County court remanded for further proceedings before
the Spokane County hearing examiner, the association may have lacked a right to appeal.
RAP 2.2 declares:
(a) Generally. Unless otherwise prohibited by statute or court rule
and except as provided in sections (b) and (c), a party may appeal from only
the following superior court decisions:
(1) Final Judgment. The final judgment entered in any action or
proceeding, regardless of whether the judgment reserves for future
determination an award of attorney fees or costs.
(Second emphasis added.)
The dissenting opinion also contends that the Lincoln County Superior Court’s
ruling constituted a final judgment such that the cemetery association could have then
appealed to this court. Nevertheless, a final judgment, for purposes of RAP 2.2(a)(1), is a
judgment that ends the litigation, leaving nothing for the court to do but execute the
judgment. In re Detention of Petersen, 138 Wn.2d 70, 88, 980 P.2d 1204 (1999). Stated
differently, a “final judgment” settles all the issues in a case. In re Detention of Turay,
139 Wn.2d 379, 392, 986 P.2d 790 (1999). The Lincoln County court did not end the
litigation between the cemetery association and the Spokane Gun Club. The court
26
No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
remanded the case for further consideration of pending issues. A century ago, a Florida
court ruled that a reviewing court’s reversal of a judgment and remand of the cause for
further proceedings in the lower court did not constitute a final judgment. First National
Bank v. Gibbs, 78 Fla. 118, 82 So. 618, 620 (1919).
In Fox v. Sunmaster Products, Inc., 115 Wn.2d 498, 798 P.2d 808 (1990), the
Washington Supreme Court ruled that a petition for discretionary review by the plaintiff
was timely as to one of two defendants granted summary judgment dismissal of
plaintiff’s claim. The summary judgment order had been entered more than thirty days
before the filing of the petition. The superior court had even signed a certification for
immediate appeal of the summary judgment order. Under CR 54(b) and RAP 5.2(a), the
plaintiff could wait until final judgment was entered with respect to claims against the
other defendant and then appeal as to both defendants.
The dissenting opinion suggests that, when reviewing finality for purposes of an
appeal, the law identifies discrete issues entertained by the superior court, not whether the
superior court resolved the entire case. The dissent cites no authority for this proposition.
Under the dissenter’s view, if the superior court dismisses a plaintiff’s cause of action for
negligent infliction of emotional distress on summary judgment, but denies the
defendant’s motion for summary judgment on an intentional infliction of emotional
distress, the plaintiff must immediately appeal the dismissal of the former cause of action
and cannot appeal the dismissal after the superior court later resolves all causes of action.
27
No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
Nevertheless, under RAP 2.2(d), a party may not appeal until all claims and counts are
final unless the superior court enters an order declaring there is no just reason for delay.
In Shaw v. Clallam County, 176 Wn. App. 925, 309 P.3d 1216 (2013), this court
ruled the superior court’s remand of a LUPA petition to the county administrator of
community development did not constitute a final order for purposes of an appeal. In
Prosser Hill Coalition v. County of Spokane, 176 Wn. App. 280, 286, 309 P.3d 1202(2013), this court reviewed a superior court’s remand in a LUPA case to a hearing
examiner before the hearing examiner reviewed the case again. Nevertheless, the court
did not address the appealability of the order of remand. Neither party argued that the
superior court decision was not final.
The dissent underscores that the Lincoln County Superior Court did not remand
the entire dispute to the hearing examiner. The Lincoln County Superior Court only
directed the hearing examiner to address mitigating measures. We do not dispute this
portrayal of the superior court’s decision, but such characterization holds no bearing on
whether the superior court’s decision could be appealed to this court.
Next the dissent highlights that the Lincoln County Superior Court lost jurisdiction
of the case when remanding the matter to the Spokane County hearing examiner. The
dissent impliedly concludes that loss of jurisdiction by the superior court necessarily
means that the superior court decision became final for purposes of an appeal as a matter
of right. The dissent cites no authority for this conclusion.
28
No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
Along these lines, the dissent suggests that, if the Lincoln County Superior Court’s
decision lacked finality, the Medical Lake Cemetery Association needed to return its
LUPA petition to the Lincoln County Superior Court, not the Pend Oreille County
Superior Court, after the hearing examiner entered its decision on remand. The dissent
cites no authority for this conclusion, although we might agree with the dissent’s logic.
But the Spokane Gun Club has not argued that the cemetery association needed to return
to the Lincoln County court.
Because the Lincoln County Superior Court’s February 2021 decision was not a
final decision, the cemetery association could have sought only discretionary review by
this court under RAP 2.3. The association had no right to appeal to this court. Appellate
courts disfavor piecemeal appeals. Doerflinger v. New York Life Insurance Co., 88
Wn.2d 878, 882, 567 P.2d 230 (1977). Regardless of the finality of the Lincoln County
Superior Court ruling before completion of remand, the cemetery association would
suffer unfairness if it is precluded from advancing arguments implicating the Lincoln
County ruling.
Fortunately, the RAPs contemplate the instant circumstances. This court may
review the Lincoln County decision under RAP 2.4(b) because the Lincoln County ruling
prejudicially affected the hearing examiner’s decisions on remand from that ruling.
Order or Ruling Not Designated in Notice. The appellate court
will review a trial court order or ruling not designated in the notice,
including an appealable order, if (1) the order or ruling prejudicially affects
29
No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
the decision designated in the notice, and (2) the order is entered, or the
ruling is made, before the appellate court accepts review.
The Spokane Gun Club’s emphasis on the cemetery association’s failure to appeal
the Lincoln County Superior Court’s ruling implicates the law of the case doctrine.
Nevertheless, the gun club, as does the dissenting author, misconstrues the “law of the
case” doctrine’s applicability to the Court of Appeals.
The law of the case doctrine ordinarily precludes reconsideration of an identical
legal issue when an appellate court has already determined the issue in an earlier appeal
from the same case. Folsom v. County of Spokane, 111 Wn.2d 256, 263-64, 759 P.2d
1196 (1988). We might agree with the dissenting opinion’s insistence that the Pend
Oreille County Superior Court was bound, under the law of the case doctrine, to uphold
rulings previously issued by the Lincoln County Superior Court in that both superior
courts sat as appellate judges. A superior court hearing a LUPA petition acts in an
appellate capacity with the jurisdiction conferred by law. Conom v. Snohomish County,
155 Wn.2d 154, 157, 118 P.3d 344 (2005); Prosser Hill Coalition v. County of Spokane,
176 Wn. App. 280, 286 (2013). But the the law of the case doctrine generally applies
only to the assertion of identical issues on successive appeals of the same case. Greene v.
Rothschild, 68 Wn.2d 1, 10, 414 P.2d 1013 (1965); Pierce County v. Desart, 9 Wn. App.
760, 761, n.1, 515 P.2d 550 (1973).
30
No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
Even if the Pend Oreille County Superior Court should have refrained from
entertaining the question of the compatibility with the military airport overlay zone or the
issue of whether the gun club’s proposed use contemplated a recreational vehicle park,
the law of the case doctrine does not constrain this court when this court has never issued
a prior decision in the instant case. This court is not bound by trial court decisions, even
those made by superior courts in their appellate capacities under LUPA. This court owes
no deference to a superior court in a LUPA case. Fischer Studio Building v. City of
Seattle, 25 Wn. App. 2d 593, 599 (2023). The law of the case principle applies the rule
that an appellate court will ordinarily not reconsider its own rulings of law on a
subsequent appeal. Lodis v. Corbis Holdings, Inc., 192 Wn. App. 30, 56, 366 P.3d 1246(2015). The rule does not preclude a higher court from considering rulings of a lower
court.
Finally, the law of the case doctrine is discretionary under RAP 2.5(c)(2), which
permits an appellate court to redecide an earlier decision “on the basis of the appellate
court’s opinion of the law at the time of the later review.” State v. Schwab, 163 Wn.2d
664, 672, 185 P.3d 1151 (2008). We have exercised this discretion before when
declining to harness the doctrine. Cronin v. Central Valley School District, 12 Wn. App.
2d 99, 111, 456 P.3d 843 (2020).
31
No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
Issue 3: Does the Spokane Gun Club’s failure to assign error to the Pend Oreille
County Superior Court’s ruling abrogating the conditional use permit preclude the gun
club from arguing against this court adopting the Pend Oreille County court’s decision?
Issue 3: No.
The Medical Lake Cemetery Association grips the sword and argues that the
Spokane Gun Club should be precluded from advancing arguments contrary to the Pend
Oreille County Superior Court’s final decision denying the conditional use permit
because the gun club assigns no errors, in its brief, to the superior court decision. As we
reject the gun club’s technical argument about the raising of errors and issues on review
and cross appeal by the cemetery association, we also reject this technical argument of
the cemetery association. As noted by the gun club, we review the decision of the local
jurisdiction’s body or officer with the highest level of authority to make the
determination, including those with authority to hear appeals. Lakeside Industries v.
Thurston County, 119 Wn. App. 886, 894 (2004). The cemetery association still bears
the burden to establish error under LUPA on appeal even though it prevailed before the
Pend Oreille Superior Court. Quality Rock Products, Inc. v. Thurston County, 139 Wn.
App. 125, 134, 159 P.3d 1 (2007). The gun club could reasonably conclude that it did not
need to challenge the superior court’s ruling at least in its opening brief.
We deem our rulings allowing both parties to forward arguments on the merits to
fulfill the purposes behind the appellate procedure rules. We should liberally interpret
32
No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
the rules to reach decisions on their merits. RAP 1.2(a). We may waive rules in the
interests of justice. RAP 1.2(c).
Issue 4: Did the Medical Lake Cemetery Association raise the question of the
violation of the military airport overlay zone before the Pend Oreille County Superior
Court?
Answer 4: No.
We inch closer to a resolving the merits of this dispute. The Spokane Gun Club
asks this court to refuse to address whether the club’s operation would violate the
Spokane County Zoning Code provision that prevents recreational activities from within
the Fairchild Air Force Base military overlay zone on the basis that the Medical Lake
Cemetery Association never argued this position before the superior court. The gun
club’s request assumes that the cemetery association never forwarded such an argument
before the superior court. The cemetery association contends to the contrary.
The Medical Lake Cemetery Association’s LUPA petition, before the Pend Oreille
County Superior Court, assigned sixty-four errors purportedly committed by the hearing
examiner. None of the assignments discussed the military airport overlay zone.
Assignment 7.5 faulted the hearing examiner for “failing to fully and properly consider
and apply the Spokane County Zoning Code.” CP at 14. But an appellate court does not
review vague and overbroad arguments. In re Disciplinary Proceeding Against Jensen,
33
No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
192 Wn.2d 427, 440, 430 P.3d 262 (2018). We do not expect a superior court to do so
either.
The cemetery association also maintains that LUPA requires the superior court to
uncover every possible issue arising in a land use decision when that decision comes
under the court’s review. RCW 36.70C.130(1), a provision in LUPA, reads that the
superior court “shall review the record” of a land use decision. We read the statute to
instruct the court to review the factual record in light of the arguments raised by the
parties, not to comb the record in order to construct legal arguments for a party.
Issue 5: Whether the Pend Oreille County Superior Court properly based a
decision on the military airport overlay zone precluding the gun club when the cemetery
association never argued that the zone precluded the use and when the superior court
gave no notice in advance to the gun club that the court may resolve the land use petition
action on this basis?
Answer 5: No.
This question we pose does not seek an answer to the merits of whether the
Spokane County Zoning Code precludes the operation of a gun club within the Fairchild
Air Force Base military airport overlay zone. Instead, we ask whether the Pend Oreille
County Superior Court properly raised the question on its own. The Spokane Gun Club
contends the superior court violated procedural rules by doing so, while the Medical Lake
34
No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
Cemetery Association disagrees. Spokane County argues that, even if the superior court
properly raised the issue, this court should decline to address it.
The superior court civil rules lack a rule analogous to RAP 12.1 that permits the
Court of Appeals to consider unbriefed arguments after affording the parties an
opportunity to present written argument. RAP 12.1(b). We note, however, that at least
two other state courts have held that trial courts erred when grounding a decision on an
argument not raised by a party when the losing party lacked the opportunity to respond to
the court’s reasoning. Maddicks v. Big City Properties, LLC, 163 A.D.3d 501, 84
N.Y.S.3d 4, 5 (2018), aff’d, 34 N.Y.3d 116, 137 N.E.3d 456, 114 N.Y.S.3d 1 (2019);
Borough of Latrobe v. Pohland, 702 A.2d 1089, 1094 (Pa. Commw. Ct. 1997). As a
matter of due process, a superior court should not base a decision on a theory not argued
by the parties without first giving the parties an opportunity to brief the theory’s
application to the case.
A party should have an opportunity to rebut arguments harming its interests.
Johnson v. Austal, U.S.A., LLC, 805 F. Supp. 2d 1299, 1310 (S.D. Ala. 2011). This
principle extends to issues raised by the trial court at the conclusion of a hearing.
Lykkebak v. Lykkebak, 323 So.3d 328, 330 n.1 (Fla. Dist. Ct. App. 2021).
Issue 6: Whether this court may base a ruling on the purported incompatibility of
the shooting range with the Fairchild Air Force Base Overlay Zone, the ground on which
the Pend Oreille County Superior Court relied, when the superior court gave no notice to
35
No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
the gun club that it might ground its opinion on such basis and the Medical Lake
Cemetery Association only vaguely asserts the overlay zone in its respondent’s brief to
this court?
Answer 6: No.
The assumption that the superior court should not have decided the case on the
application of the military airport overlay zone does not necessarily mean this court
cannot resolve the dispute on any incompatibility between the operation of the gun range
and the zoning code. At the same time, despite the trial court ruling on this
incompatibility, the parties, in their opening briefs, did not analyze the question of
whether the overlay zone precluded the gun club because of the club’s proximity to the
zone. Nevertheless, because we can resolve this appeal on other grounds favorable to the
cemetery association, we need not and decline to rest our decision on the overlay zone.
Pursuant to RAP 12.1(b), we directed the parties to supply supplemental briefing
on the question of whether we should substantively address the applicability of the
Fairchild Air Force Base Overlay Zone. In the end we decline to address this question
based on the Supreme Court decision in Dalton M, LLC v. North Cascade Trust Services,
Inc., 2 Wn.3d 36 (2023). Because we rule in favor of the Medical Lake Cemetery
Association on other grounds, we decline to analyze Dalton M’s application to our
addressing the overlay zone. We apologize to the parties for creating this additional
36
No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
work. We asked for the additional briefing because of the importance of Fairchild Air
Force Base.
Issue 7: Whether the proposed use of the property by the Spokane Gun Club
violates the Spokane County Zoning Code military airport overlay zone?
Answer 7: We decline to address this question.
Issue 8: Whether the proposed use of the property by the Spokane Gun Club
includes a recreational vehicle park prohibited under the Spokane County Zoning Code?
Answer 8: Yes.
The Medical Lake Cemetery Association urges that the Spokane Gun Club’s
planned development includes an impermissible RV Park. We agree.
The Spokane County Zoning Code precludes a recreational vehicle park from a
rural traditional zone. SCZC 14.618.220. Because of its criticality, we repeat the code
section defining a recreational vehicle park:
Recreational Vehicle Park/Campground: An area where facilities are
provided for camping units as defined herein, utilized by the public for
camping for recreation on a temporary basis and not designed for long term
occupancy. The recreational vehicle park/campground may include
recreational services, facilities, and activities for utilization by the public
that are typical and ordinary to the recreational vehicle park/campground
industry.
SCZC 14.300.100 (emphasis added). Note that the definition refers to “facilities” twice.
The Spokane Gun Club operation plans include forty-five parking stalls to
accommodate recreational vehicles during shooting events or competitions. The club
37
No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
does not intend to provide hookup services for water, electricity, and sewer. We note,
however, that, according to gun club written plans, letters, and testimony, recreational
vehicle owners parking at the property will enjoy security fencing, gates, alarms, and
lighting. The owners will also enjoy, at least during business hours, a clubhouse that
includes water, restrooms, and food service. Just as important, the recreational vehicle
parkers will enjoy recreational facilities, such as the shooting and archery ranges.
The zoning code does not define the term “facilities.” Instead SCZC
14.300.000(2) demands that this court construe undefined terms “as defined in Webster’s
New Collegiate Dictionary.” Neither party provides a dictionary definition for this court.
We assume Webster’s New World College Dictionary equates to Webster’s New
Collegiate Dictionary. We can find no New Collegiate Dictionary. Webster’s New
World College Dictionary lists four definitions for “facilities:”
1. Plural form of facility
2. Something that facilitates, or makes possible an action or process
3. Something created to fulfill a particular function
4. A restroom or toilet
The hearing examiner, the Spokane Gun Club, Spokane County, and the dissent
conclude that “facilities,” within the meaning of a “recreational vehicle park,” means the
capability of recreational vehicles to hookup to a broad range of utilities, such as sewer,
water, and electricity. In turn, the dissent erroneously equates “utilities” with “facilities.”
38
No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
In the circumstances of ambiguity, this court often defers to the municipality’s
interpretation of its municipal code. Durland v. San Juan County, 174 Wn. App. 1, 25,
298 P.3d 757 (2012). Nevertheless, the record does not show that Spokane County based
its interpretation of “facilities” on its own code’s requirement that one must employ the
dictionary definition. We decline to defer to the county’s interpretation, when the county
does not read the entirety of its code.
RCW 36.70C.130(1) authorizes this court to grant relief when:
(b) The land use decision is an erroneous interpretation of the law,
after allowing for such deference as is due the construction of a law by a
local jurisdiction with expertise.
Just as Spokane County erroneously interprets SCZC 14.300.100, the hearing examiner
did so by failing to read SCZC 14.300.000. The dissent compounds this error by
constructing appurtenances to the definition of “facilities,” such as those facilities
typically available for “camping units,” rather than reading the required dictionary
definition.
The Spokane County Zoning Code binds us and directs us to Webster’s New
World College Dictionary, not some common understanding as to “facilities” within the
context of a setting such as a recreational vehicle park. “Facilities” means something that
facilitates or makes an occurrence happen. The parking area planned for the recreational
vehicles by the Spokane Gun Club together with the security apparatus and amenities
available at the clubhouse facilitates the use of recreational vehicles. The definition of
39
No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
“recreational vehicle park/campground” under SCZC 14.300.100 also references
recreational facilities. The entire purpose behind the Spokane Gun Club site is to afford
the opportunity to engage in recreational activities.
Webster’s New World College Dictionary does not define “facilities” as including
any hookups or containing any specific utilities or improvements. The fourth definition
references a “toilet,” and the gun club does not intend to permit recreational vehicles to
hookup to a sewage system. Still, the clubhouse, available to recreational vehicle
owners, will provide restroom facilities. The gun club does not indicate that those
restrooms will be unavailable during any particular hours of the day.
One might argue that we should define the term “facilities” within the context of a
recreational vehicle park and conclude that a parking area must include those facilities or
utilities generally available in a recreational vehicle park, but neither SCZC 14.300.100
nor Webster’s New World College Dictionary affords such a definition or qualification
for a park. SCZC 14.300.100 reads that the recreational vehicle “may” include
“facilities, and activities” “typical and ordinary to the recreational vehicle park . . .
industry.” Use of the word “may” means those facilities are permissive and not essential
to the classification as a park. In re Detention of Nelson, 2 Wn. App. 2d 621, 629, 411
P.3d 412 (2018). If the Spokane County Board of Commissioners intended for a
“recreational vehicle park” to include a certain number or types of “facilities,” the
commissioners could have expressed this intent with such language.
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No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
On pages 14 and 15 of the dissent, the dissenting author writes that “[t]hese
additional amenities include ‘recreational services, facilities, and activities for utilization
by the public that are typical and ordinary to the recreational vehicle park/campground
industry.’” The dissent conspicuously omits the word “may,” which precedes the word
“include” in SCZC 14.300.100. Spokane County Zoning Code 14.300.000 reads
consistently with principles of statutory interpretation. The code section reads, in part:
The word “shall” is always mandatory. The word “may” is
permissive, subject to the judgment of the person administering the Code.
No member of the Spokane County Planning Department testified that the department
considers the word “may” as used in SCZC 14.300.100 mandatory.
Remember that SCZC 14.300.100 employs the word “facilities” twice, once in
each sentence. Typically, we would ascribe the same word used multiple times within a
singular definition the same meaning. Simpson Inv. Co. v. Department of Revenue, 141
Wn.2d 139, 160, 3 P.3d 741 (2000). But we read the definition’s two uses of the word
“facilities” to impose two distinct meanings. “Identical words appearing more than once
in the same act, and even in the same section, may be construed differently if it appears
they were used in different places with different intent.” Vanscoter v. Sullivan, 920 F.2d
1441, 1448 (9th Cir. 1990). The definition’s first, mandatory use of the term “facility”
requires that the “facility” provide for camping units, which camping units may include
recreational vehicles. We consider parking spaces for recreational vehicles to fall within
41
No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
this first definition. In contrast, the second, permissive use of the term “facility” relates
to those utilizations typical and ordinary to the recreational vehicle park.
One may ask if the Spokane Gun Club’s proposed recreational vehicle parking
area includes “facilities,” when would a recreational vehicle park ever not include
“facilities?” We must give some meaning to all of the words inside the zoning code’s
definition of “recreational vehicle park/campground” such that there must be some
circumstances under which a park lacks “facilities.” One such circumstance would be
when a park lacks any security fencing or lighting and when recreational vehicle owners
lack access to food, water, and recreation facilities. Under such a circumstance, the lot
owner only affords a parking spot. We need not speculate under what other
circumstances the park would lack “facilities.”
The Spokane Gun Club additionally argues that the recreational vehicle park
would not be open to the public. The definition of a “recreational vehicle
park/campground” includes opening the park to the public. SCZC 14.300.100. The gun
club’s argument conflicts with its stated intent as shown by the record. We agree that the
gun club may limit use of the parking area to those attending events at the shooting range.
Nevertheless, the events are open to the public. The gun club seeks to encourage the
public at large to use its facilities.
The dissent suggests that the majority opinion transforms a rest stop into a
recreational vehicle park. Even if this intimation was accurate, we are bound by the
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No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
language of the Spokane County Zoning Code. But the dissent is wrong. Recreational
vehicle owners do not park recreational vehicles overnight in rest stops. Overnight
parking of an eighteen-wheeler does not transubstantiate a rest stop into a recreational
vehicle campground because a large truck does not constitute a “camping unit” within the
meaning of the Spokane County Zoning Code. SCZC 14.300.100.
The dissent accuses the majority of creating new findings of fact. Yet, the only
task we perform is construing the word “facilities” as used in the Spokane County Zoning
Code. Construing ordinance terms forms a question of law we review de novo.
Department of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002).
In turn, we rule that the hearing examiner committed legal error.
We could affirm the hearing examiner’s grant of the conditional use permit while
requiring that the Spokane Gun Club remove its recreational vehicle parking area.
Nevertheless, the gun club does not ask for this remedy in the event we rule that the
proposed use constitutes a recreational vehicle park in violation of the code. We do not
know if the gun club wishes to operate the shooting range without the ability to house
recreational vehicles. Our ruling does not prohibit the Spokane Gun Club from applying
again for a conditional use permit with modifications to its operating plan.
Issue 9: Whether the proposed use of the property by the Spokane Gun Club is
incompatible with the Spokane County Comprehensive Plan and Spokane County Zoning
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No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
Code’s descriptions of rural traditional zones and incompatible to a neighboring historic
and cultural resource center?
Answer 9: We need not and decline to address this question since we rule in favor
of the Medical Lake Cemetery Association on other grounds.
Issue 10: Whether the grant of the conditional use permit constitutes a regulatory
taking under the United States Constitution?
Answer 10: We need not and decline to address this question since we rule in
favor of the Medical Lake Cemetery Association on other grounds.
Issue 11: Whether the Spokane Gun Club and Spokane County denied some burial
plot owners due process by a failure to give notice?
Answer 11: We need not and decline to address this question since we rule in
favor of the Medical Lake Cemetery Association on other grounds.
Issue 12: Whether the Spokane Gun Club and Spokane County improperly
colluded in order to gain the issuance of the conditional use permit?
Answer 12: We need not and decline to address this question since we rule in
favor of the Medical Lake Cemetery Association on other grounds.
CONCLUSION
We affirm, on different grounds, the superior court’s reversal of the hearing
examiner’s issuance of the conditional use permit for the Spokane Gun Club. The
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No. 38850-6-III,
Medical Lake Cemetery Ass’n v. Spokane County
Spokane Gun Club’s plans include an “recreational vehicle park/camping,” which park
violates the rural traditional zone in which the property lies.
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.
_________________________________
Fearing, C.J.
I CONCUR:
______________________________
Lawrence-Berrey, J.
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No. 38850-6-III
STAAB, J. (dissenting) — I respectfully dissent from my colleagues on two issues:
whether “the law of the case doctrine” should prevent consideration of issues that were
decided by the Lincoln County Superior Court in the Medical Lake Cemetery
Association’s (Cemetery) first appeal, and whether the Spokane Gun Club’s proposed
development qualifies as a recreational vehicle (RV) park/campground. I would
conclude that the law of the case doctrine should preclude our review of the RV park
issue and regardless, the hearing examiner did not error.
1. LAW OF THE CASE
Unlike the majority decision, I would hold that the law of the case doctrine applies
to this case on multiple levels. First, the doctrine should preclude the Pend Oreille
County Superior Court from reconsidering issues that were decided by the Lincoln
County Superior Court; both of whom decided the issues in their appellate capacity.
Additionally, the same doctrine should preclude our review of the issues decided by the
Lincoln County Superior Court because the Cemetery failed to appeal the Lincoln County
Court’s opinion to the court of appeals.
No. 38850-6-III
Medical Lake Cemetery Ass’n v. Spokane County
A. Background
Some additional procedural background is relevant to this issue. In its first LUPA1
petition to the Lincoln County Superior Court, the Cemetery raised 38 issues, challenging
the validity of the hearing examiner’s decision to approve the conditional use permit.
The Lincoln County Superior Court consolidated the alleged errors into eight issues.
On the substantive issues, the court generally ruled in favor of the Spokane Gun
Club. Specifically, the court held that: (1) the hearing examiner was not biased requiring
removal, (2) the proposed use is not prohibited under the comprehensive plan and zoning
code, (3) the proposed use qualifies as a gun range, (4) allowing recreational vehicles to
park in the parking lot overnight does not create an illegal RV park, (5) the county and
the Spokane Gun Club provided adequate notice of the hearing to interested parties, and
(6) the proposed conditional use permit can be compatible with the cemetery and
neighboring property owners.
While concluding that the shooting range could be compatible with the
neighboring property owners, the Lincoln County Superior Court concluded that the
conditional use permit granted by the hearing examiner in this case lacked adequate
mitigating conditions to make it compatible with the neighboring property owners.
Based on this conclusion, the court reversed the grant of a conditional use permit and
1
Land Use Petition Act, ch. 36.70C RCW.
2
No. 38850-6-III
Medical Lake Cemetery Ass’n v. Spokane County
remanded the LUPA back to the hearing examiner for the limited purpose of addressing
“this court’s concerns and the efficacy of the possible mitigating conditions listed above
and whether such conditions or others should be imposed.” Clerk’s Papers (CP) at 280.
On remand, the hearing examiner denied the Cemetery’s motion to reopen the
record and reconsider issues decided by the Lincoln County Superior Court. The hearing
examiner cited several reasons, including the doctrine of law of the case and the mandate
rule. The hearing examiner noted that the court had reviewed its decision in its appellate
capacity and concluded that once there had been an appellate holding on an issue of law,
that holding would be followed in subsequent stages of the same litigation. The hearing
examiner concluded that the mandate of an appellate court is binding.
The hearing examiner then proceeded to consider the specific issues on remand,
relying on the record as certified in the Lincoln County LUPA. The hearing examiner
imposed additional mitigating conditions on the Spokane Gun Club’s operation. Based
on the supplemental findings and conclusions, the hearing examiner found the shooting
range to be consistent with the comprehensive plan and was consistent with the rural
character of the area.
In its second LUPA petition, filed in Pend Oreille County, the Cemetery identified
64 errors. While the Cemetery’s petition claims that it was only appealing the hearing
examiner’s supplemental decision dated April 26, 2021, along with the hearing
examiner’s decision denying the Cemetery’s motion to reopen the record, it is clear that
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No. 38850-6-III
Medical Lake Cemetery Ass’n v. Spokane County
some of the Cemetery’s 64 alleged errors included rulings made in the hearing
examiner’s first decision. For example, the Pend Oreille County LUPA raised issues of
notice, quoting language from the hearing examiner’s first decision.2 The Pend Oreille
County LUPA also challenged the hearing examiner’s conclusion that the Spokane Gun
Club’s proposed use qualified as a “gun range,” under the Spokane County Zoning Code,
a conclusion reached only in the first decision.
B. Summary of Dissenting Opinion on Law of the Case
On appeal to this court, the Spokane Gun Club argues that the Lincoln County
Superior Court’s decision created the law of the case, and this doctrine should have
precluded the Pend Oreille County Superior Court from reconsidering the same issues.
Additionally, the Spokane Gun Club contends that because the Cemetery failed to appeal
from the Lincoln County Superior Court’s decision, it is precluded from raising those
issues in the second appeal. The Cemetery responds that the Lincoln County Superior
Court lost jurisdiction when it issued its decision and the law of the case doctrine should
not apply to a second LUPA petition challenging new issues decided on remand. The
majority opinion holds that the Lincoln County Superior Court decision was not final
2
The errors identified in the Cemetery’s LUPA petition are vague and fail to specify
which rulings are being challenged. See RCW 36.70C.070(7) (“A land use petition must
set forth: … (7) A separate and concise statement of each error alleged to have been
committed.”). While the petition alleges it is only challenging rulings made on remand, it
is undeniably raising issues decided by the hearing examiner in his first decision.
4
No. 38850-6-III
Medical Lake Cemetery Ass’n v. Spokane County
because it remanded on one issue and therefore did not become the law of the case.
Additionally, the majority opinion holds that even if the Lincoln County Superior Court
decision created the law of the case, this court is not bound by a lower court’s decision.
I disagree. The law of the case doctrine generally precludes an appellate court at
any level from reconsidering issues that have been decided in a prior appeal. Contrary to
the majority opinion, the focus is on the issues not on whether the decision as a whole is
final. But even if we consider the status of the case rather than rulings on particular
issues, the Lincoln County Superior Court’s decision was a final appellate decision. The
Lincoln County Superior Court made its decision on the merits on several issues
including whether a shooting range could be legally compatible with the zoning. When
the Cemetery failed to appeal these final rulings, the decision became the law of the case.
Absent a recognized exception, this doctrine should preclude further review by another
appellate court on a subsequent appeal, whether at the superior court level or at the court
of appeals.
In this case, application of the law of the case promotes the policies of LUPA. We
should not invite protracted litigation in contravention of the policies of LUPA and the
law of the case by permitting multiple opportunities to raise an issue that has been
decided. “To require courts to consider and reconsider cases at the will of litigants would
deprive the courts of that stability that is necessary in the administration of justice.”
Hong v. Dep’t of Soc. & Health Servs., 146 Wn. App. 698, 710, 192 P.3d 21 (2008).
5
No. 38850-6-III
Medical Lake Cemetery Ass’n v. Spokane County
C. Principles, Policies and Application of the Law of the Case in a LUPA petition
The majority opinion holds that the Lincoln County Superior Court’s decision was
not the law of the case because it was not a final decision and reasons that it was not a
final decision because the Lincoln County Superior Court remanded the case for further
proceedings on one issue, citing RAP 2.2. This logic misconstrues the doctrine.
The law of the case doctrine applies to issues determined on appeal, not the status
of the case. “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).
This common law doctrine is codified in RAP 2.5(c), which provides:
Law of the Case Doctrine Restricted. The following provisions apply if
the same case is again before the appellate court following a remand:
(1) Prior Trial Court Action. If a trial court decision is otherwise
properly before the appellate court, the appellate court may at the instance
of a party review and determine the propriety of a decision of the trial court
even though a similar decision was not disputed in an earlier review of the
same case.
(2) Prior Appellate Court Decision. The appellate court may at the
instance of a party review the propriety of an earlier decision of the
appellate court in the same case and, where justice would best be served,
decide the case on the basis of the appellate court’s opinion of the law at
the time of the later review.
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No. 38850-6-III
Medical Lake Cemetery Ass’n v. Spokane County
In describing this rule, the Supreme Court has noted that “‘questions determined
on appeal, or which might have been determined had they been presented, will not again
be considered on a subsequent appeal if there is no substantial change in the evidence at a
second determination of the cause.’” Greene v. Rothschild, 68 Wn.2d 1, 7, 414 P.2d
1013 (1966) (footnote omitted) (quoting Adamson v. Traylor, 66 Wn.2d 338, 339, 402
P.2d 499 (1965)).
While the doctrine is discretionary, courts should refrain from reconsidering the
identical issue in a subsequent appeal unless the prior decision was “clearly erroneous
and the application of the doctrine would result in manifest injustice.” Folsom v. County
of Spokane, 111 Wn.2d 256, 264, 759 P.2d 1196 (1988).
In this case, both the Lincoln County Superior Court and the Pend Oreille County
Superior Court reviewed the LUPA petitions as appellate courts. Cave Props. v. City of
Bainbridge Island, 199 Wn. App. 651, 660, 401 P.3d 327 (2017). The Lincoln County
Superior Court enunciated principles of law and decided the issues presented. The
Lincoln County Superior Court’s appellate decision on the merits created the law of the
case.
Even if we were to consider the status of the case rather than the rulings on
questions presented, the Lincoln County Superior Court’s decision was a final appellate
decision. Contrary to the majority’s conclusion, an appellate decision by a superior court
that decides some issues and remands on other issues can be a final decision on those
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No. 38850-6-III
Medical Lake Cemetery Ass’n v. Spokane County
issues decided. I acknowledge, however, that the court of appeals has been inconsistent
in characterizing LUPA appeals when the superior court has remanded for further
proceedings. See Prosser Hill Coal. v. County of Spokane, 176 Wn. App. 280, 283, 309
P.3d 1202 (2013) (this court accepted direct review of a superior court LUPA decision
remanding for new hearing), but see Shaw v. Clallam County, 176 Wn. App. 925, 930-31,
309 P.3d 1216 (2013) (court rejecting direct appeal from a superior court LUPA decision
ordering remand because decision was not final and instead granted discretionary
review).
Here, the issues decided by the Lincoln County Superior Court were a final
decision that was not affected by the limited issue on remand. The Cemetery could have
appealed the Lincoln County Superior Court’s decision to this court. Absent any further
review, those rulings became the law of the case and should not be reconsidered on a
subsequent appeal, especially when the hearing examiner denied the Cemetery’s motion
to reopen the record and reconsider the issues decided by the Lincoln County Superior
Court.
The Cemetery argues that the Pend Oreille County Superior Court was not bound
by the Lincoln County Superior Court decision because the Lincoln County Superior
Court remanded the entire case back to the hearing examiner and thus lost jurisdiction.
The Cemetery contends that a second LUPA petition was necessary in order to review
8
No. 38850-6-III
Medical Lake Cemetery Ass’n v. Spokane County
any subsequent land use decision made on remand. This argument mischaracterizes the
record and misconstrues the nature of appellate review.
The Lincoln County Superior Court did not remand the entire case to the hearing
examiner. It is clear from the record that the Lincoln County Superior Court reversed the
hearing examiner’s grant of a conditional use permit and ordered a limited remand for the
sole purpose of “address[ing] this court’s concerns and the efficacy of the possible
mitigating conditions listed above and whether such conditions or others should be
imposed.” CP at 280. This limited remand was not “a complete LUPA remand.”
Cemetery’s Br. of Resp’t at 13. Nor was the Cemetery’s second LUPA petition limited
to subsequent land use rulings made on remand. Instead the Cemetery’s 64 identified
issues included numerous challenges to the hearing examiner’s first decision.3
The Cemetery’s argument that the Lincoln County Superior Court lost jurisdiction
on remand fails because the Lincoln County Superior Court lost jurisdiction when it
issued a final decision terminating review. A final decision terminating review becomes
the law of the case when it is not appealed.
3
The Cemetery’s LUPA petition to Pend Oreille County Superior Court only
appealed the hearing examiner’s supplemental findings and conclusions. Perhaps this is
because jurisdiction under LUPA requires the petition to be filed within 21-days of the
final decision. Yet, the hearing examiner’s supplemental findings and conclusions did
not address many of the issues raised in the Cemetery’s Pend Oreille LUPA petition.
9
No. 38850-6-III
Medical Lake Cemetery Ass’n v. Spokane County
There are only two types of appellate decisions: a final decision that terminates
review and an interlocutory decision. RAP 12.3. An interlocutory decision is any
opinion that is not a decision terminating review. RAP 12.3(b). “In other words, an
interlocutory decision is a decision during the course of appellate review that neither
decides the case on the merits nor dismisses the case.” 3 ELIZABETH A. TURNER,
WASHINGTON PRACTICE: RULES PRACTICE RAP 12.3, author’s cmts. at 168 (9th ed.
2022). On the other hand, a decision terminating review is a final decision on the merits.
Id.When an appellate court issues an interlocutory decision, it retains jurisdiction.
Hong, 146 Wn. App. at 710. When an appellate court issues a decision that terminates
review, it loses jurisdiction. Id. at 709 (citing Pierce County Sheriff v. Civil Srv.
Comm’n, 98 Wn.2d 690, 695, 658 P.2d 648 (1983)). The same rule applies when a
superior court, sitting as an appellate court, issues a decision that terminates review.
“Just as an appellate court loses jurisdiction upon remand to the trial court (Reeploeg v.
Jensen, 81 Wn.2d 541, 546, 503 P.2d 99 (1972)), a superior court reviewing action of an
administrative agency loses jurisdiction upon remand to the agency.” Pierce County
Sheriff, 98 Wn.2d at 695 (citation omitted).
When a superior court sitting as an appellate court issues a final decision that
remands on one or more issues, but does not retain jurisdiction, a second LUPA petition
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No. 38850-6-III
Medical Lake Cemetery Ass’n v. Spokane County
must be filed to review any rulings made on remand. See Id. (error for superior court
reviewing administrative decision in writ of review to allow second appeal by
amendment to original writ rather than filing second motion for writ because superior
court lost jurisdiction upon remand to civil service commission). On the other hand, if a
superior court sitting as an appellate court issues an interlocutory decision, then it does
not lose jurisdiction to review any rulings on remand. Hong, 146 Wn. App. at 711.
Either the Lincoln County Superior Court’s decision was final and it lost
jurisdiction or its decision was interlocutory and it retained jurisdiction. If the Lincoln
County Superior Court decision was final, then the law of the case applies. If it was
interlocutory, then the Cemetery was required to return the case to the Lincoln County
Superior Court for review following remand. By arguing that the Lincoln County
Superior Court lost jurisdiction, the Cemetery implicitly concedes that the Lincoln
County Superior Court’s decision was final and appealable.
We should also decide that the law of the case precludes our review of the Lincoln
County Superior Court’s decision that was not appealed to this court. “‘Under the
doctrine of “law of the case,” as applied in this jurisdiction, the parties, the trial court, and
this court are bound by the holdings of the court on a prior appeal until such time as they
are “authoritatively overruled.”’” Folsom, 111 Wn.2d at 264 (quoting Greene, 68 Wn.2d
at 10). This principle is recognized in RAP 12.2, which provides procedures following
issuance of an appellate court decision and provides in part:
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No. 38850-6-III
Medical Lake Cemetery Ass’n v. Spokane County
Upon issuance of the mandate of the appellate court . . . the action taken or
decision made by the appellate court is effective and binding on the parties
to the review and governs all subsequent proceedings in the action in any
court, . . . except as provided in rule 2.5(c)(2).
(emphasis added).
The majority contends that even if the Pend Oreille Superior Court should have
refrained from readdressing issues decided by the Lincoln County Superior Court, the
law of the case does not constrain this court because we have never addressed the Lincoln
County Superior Court’s decision. Majority at 30. This is not a correct application of the
doctrine. While the law of the case doctrine is discretionary, it applies at all levels of
appellate review, and presumes that rulings in a prior appeal are final unless the court in a
subsequent appeal determines that the prior decision is clearly erroneous and the interests
of justice compel our review. See First Small Business Inv. Co. of California v.
Intercapital Corp. of Oregon, 108 Wn.2d 324, 333, 738 P.2d 263 (1987).
In First Small Business, the court of appeals issued an opinion remanding the case
and the Supreme Court declined further review. In the second appeal of the same case,
the Supreme Court accepted review and the respondent argued that the Supreme Court
should not review the court of appeal’s decision from the first appeal. The Supreme
Court recognized that RAP 2.5(c)(2) was discretionary, acknowledged that the law of the
case applied to its review of an earlier decision by the court of appeals, but exercised its
discretion to consider the earlier decision. Id. at 332-33.
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No. 38850-6-III
Medical Lake Cemetery Ass’n v. Spokane County
Here, the Cemetery raised the issue of the RV park in its first LUPA appeal in
Lincoln County. The Lincoln County Superior Court, sitting as an appellate court,
addressed that issue. The Cemetery did not appeal that decision to this court. On
remand, the hearing officer, citing the law of the case, refused to reconsider the issue.
The Cemetery filed a second LUPA petition in a different county, claiming it was
challenging only the hearings examiner’s supplemental findings and conclusions, but
resurrected the RV park issue along with several other issues decided in the first appeal.
Under these circumstances, the law of the case should apply because the Cemetery fails
to show that the Lincoln County Superior Court’s decision was erroneous and justice
demands that we exercise our discretion to disregard the law of the case.
Applying law of the case to preclude our review of issues decided in the first
appeal promotes the purpose and goal of both LUPA and the doctrine. The law of the
case doctrine provides finality for litigated issues. Lodis v. Corbis Holdings, Inc., 192
Wn. App. 30, 55, 366 P.3d 1246 (2015). The policy considerations include:
“(1) to protect settled expectations of the parties; (2) to insure uniformity of
decisions; (3) to maintain consistency during the course of a single case; (4)
to effectuate the proper and streamlined administration of justice; and (5) to
bring litigation to an end.”
Id. (quoting In re Estate of Jetter, 590 N.W.2d 254, 258 (S.D. 1999).
Similarly, the express purpose of the LUPA chapter is to “establish[ ] uniform,
expedited appeal procedures and uniform criteria for reviewing such decisions, in order
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No. 38850-6-III
Medical Lake Cemetery Ass’n v. Spokane County
to provide consistent, predictable, and timely judicial review.” RCW 36.70C.010
(emphasis added). Indeed, the “strong public policy supporting administrative finality in
land use decisions,” is one reason the courts strictly enforce the 21-day deadline for filing
LUPA appeals. Chelan County v. Nykreim, 146 Wn.2d 904, 931, 52 P.3d 1 (2002)
(quoting Skamania County v. Columbia River Gorge Comm’n, 144 Wn.2d 30, 49, 26
P.3d 241 (2001)). This case is a perfect example of how the failure to apply the doctrine
of the law of the case defeats these policies and purposes.
2. THE GUN CLUB’S PROPOSED DEVELOPMENT DOES NOT INCLUDE AN UNAUTHORIZED
RECREATIONAL VEHICLE PARK
In its second LUPA petition, the Cemetery raises an issue that was decided in its
first LUPA petition: whether the Spokane Gun Club’s proposal to include parking spaces
large enough to accommodate recreational vehicles creates an RV park that is otherwise
prohibited by the applicable “Rural Traditional” (RT) zone under Spokane County’s
Zoning Code. The Spokane Gun Club’s proposed development includes a parking lot
striped with parking stalls large enough to accommodate RVs. These parking stalls will
not have utility hook-ups; there will be no electrical, water, or sewer utilities provided to
the parking stalls.
The Spokane County Zoning Code (SCZC) defines a “Recreational Vehicle
Park/Campground” as “[a]n area where facilities are provided for camping units as
defined herein, utilized by the public for camping for recreation on a temporary basis and
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No. 38850-6-III
Medical Lake Cemetery Ass’n v. Spokane County
not designed for long term occupancy.” SCZC 14.300.100. Additional amenities may be
provided, but are not required. Id. These additional amenities include “recreational
services, facilities, and activities for utilization by the public that are typical and ordinary
to the recreational vehicle park/campground industry.” Id.The hearing examiner determined that when used in reference to RVs and RV
parks, the term “facilities” typically references the ability to “hook up” the RV to utilities
at the site or in the RV park complex. CP at 135. In light of this contextualized meaning,
the hearing examiner held that providing parking stalls without such facilities does not
create a recreational vehicle park/campground. Id. The hearing examiner noted that the
availability of food from a clubhouse or onsite restrooms did not change the outcome
since such “services and facilities could be allowed in a Community Recreational
Facility, which is an allowed use in the Rural Traditional zone.” CP at 212. Nor was it
relevant that recreational vehicles were undisputedly “camping units” and allowing them
to dry camp for several days would constitute camping because “camping alone is not a
prohibited activity.” Id.The Cemetery raises this issue in its brief to this court, but the entirety of its
argument boils down to one sentence: “[Spokane Gun Club’s] proposed RV
accommodations, with RV stalls and indoor clubhouse kitchen/dining, restrooms and pro-
shop, and with a sport-shooting complex facility for those staying in camping units, is a
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No. 38850-6-III
Medical Lake Cemetery Ass’n v. Spokane County
prohibited RV Park in the RT Zone under the SCZC.” Cemetery’s Br. of Resp’t at 29.
The majority opinion agrees with the Cemetery.
I disagree with the majority’s conclusion for several reasons. First, the Cemetery
makes no attempt to meet its burden of identifying which statutory standards were
violated by the hearing examiner’s decision. A party seeking relief in a LUPA petition
must establish that the hearing examiner erred under one of the six standards set forth in
RCW 36.70C.130(1). Lakeside Indus. v. Thurston County, 119 Wn. App. 886, 894, 83
P.3d 433 (2004). In general terms, the Cemetery “must establish either the hearing
examiner made a mistake of law, that there was insufficient evidence to support the
decision, or that the decision was clearly erroneous.” City of University Place v.
McGuire, 144 Wn.2d 640, 647, 30 P.3d 453 (2001). Unchallenged findings are verities,
challenged findings are reviewed for substantial evidence, and errors of law are reviewed
de novo. Seven Hills, LLC v. Chelan County, 198 Wn.2d 371, 384, 495 P.3d 778 (2021).
Our review is limited to the record available to the hearing examiner. Id.The Cemetery makes no mention of the standards in RCW 36.70C.130(1) in either
its LUPA petition or its appellate brief. Nor does it make any attempt to demonstrate that
it has met its burden of proving one of the standards. The majority opinion makes up for
the Cemetery’s failure by doing the Cemetery’s work for it.
In the Cemetery’s LUPA petition, it asserts that the hearing examiner erred as a
matter of law and/or fact in defining a “Recreational Vehicle Park/Campground,” and the
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No. 38850-6-III
Medical Lake Cemetery Ass’n v. Spokane County
Spokane Gun Club’s proposal did not constitute an RV park. CP at 24. This generalized
statement is insufficient to challenge any particularized finding of fact and the Cemetery
makes no attempt to argue that the hearing examiner’s findings are not supported by
substantial evidence. Thus, the findings of the hearing examiner are verities on appeal
and any alleged errors in determining the meaning of statutory terms is a question of law
reviewed de novo. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43
P.3d 4 (2002).
The majority opinion’s conclusion that the Spokane Gun Club’s proposal creates
an unauthorized RV park is based on a statutory interpretation that fails to give effect to
the zoning code’s plain meaning. Similar to statutory construction, our primary goal in
construing a zoning code is to determine the legislative intent. See Id. If the meaning of
a code is plain on its face, then we consider the plain meaning “as an expression of
legislative intent.” Id. at 9-10. Plain meaning is derived from considering the ordinance
in context, not only by looking at the ordinance itself but also related ordinances. Id. at
10.
As noted above, the SCZC defines a “Recreational Vehicle Park/Campground” as
“[a]n area where facilities are provided for camping units as defined herein, utilized by
the public for camping for recreation on a temporary basis and not designed for long term
occupancy.” SCZC 14.300.100 (emphasis added). In other words, it is not just that
facilities are provided, instead the facilities are provided specifically for camping units.
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No. 38850-6-III
Medical Lake Cemetery Ass’n v. Spokane County
As the hearing examiner reasonably noted, the plain meaning of this phrase means the
availability of utilities for camping units either at the site or in the park. This is simply a
common-sense application of the plain meaning of the zoning code.
Nevertheless, the majority opinion reasons that a contextualized definition of
“facilities” provided for camping units is not appropriate and instead defines “facilities”
in isolation as something that “facilitates or makes an occurrence happen.” Majority at
39. The majority opinion then goes on to make a new finding of fact based on evidence
in the record that was not argued by the Cemetery or found by the hearing examiner:
“The parking area planned for the recreational vehicles by the Spokane Gun Club
together with the security apparatus and amenities available at the clubhouse facilitates
the use of recreational vehicles.” Majority at 39 (emphasis added). Security lights and
fencing are not raised in the Cemetery’s briefs, and were never considered by the hearing
examiner as evidence of an RV park. Nor did the hearing examiner find that such
features facilitated the use of RVs. Indeed, the hearing examiner found just the opposite.
Finally, the majority opinion improperly shifts the burden to the Spokane Gun Club and
notes that the Spokane Gun Club had not proved that the restrooms are not available for
overnight campers. Majority at 40.
The majority’s conclusion, that marking parking stalls large enough to
accommodate an RV and providing onsite restrooms is sufficient to create an RV park,
has the unintended consequence of turning every rest stop into an RV park. In addition,
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Medical Lake Cemetery Ass’n v. Spokane County
the conclusion that large parking spots plus on-site restrooms creates an RV park, is
easily circumvented. What if the Spokane Gun Club does not stripe parking spots large
enough for RVs, but people park their RVs using more than one regular spot? As the
hearing examiner noted, providing a clubhouse and restrooms is allowed in the RT zone.
CP at 135. And allowing overnight parking does not create an RV park because camping
is not a prohibited activity. Id.The plain meaning of the zoning code defines an RV park as an area where
facilities are provided specifically for camping units. This is what turns a parking lot into
an RV park. The hearing examiner did not error in applying this definition and
concluding that the Spokane Gun Club’s proposed development did not include an
unauthorized RV park.
_________________________________
Staab, J.
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