Union Bay Preservation Coalition v. Cosmos Development & Administration Corp.

Guy, J.

Washington’s 1988 Administrative Procedure Act (APA) directs a party to serve its petition for judicial review on "all parties of record.” RCW 34.05.542(2). Appellant Union Bay Preservation Coalition (Union Bay) served its petition on the attorneys of record, not the parties. We hold that Union Bay did not satisfy the APA’s requirement of service.

Facts

Respondent Cosmos Development and Administration Corporation (Cosmos) owns four acres of waterfront property in the Madison Park neighborhood of Seattle. Cosmos plans to subdivide the parcel into nine lots for single-family homes and build an elevated boardwalk and pier. On August 6, 1992, the City of Seattle’s Department of Construction and Land Use issued a mitigated determination of nonsignificance under the State Environmental Policy Act of 1971. Two months later, the City issued a master use permit for the subdivision, a permit for substantial shoreline development, and shoreline variances for the proposed dock. The State Department of Ecology also approved Cosmos’ proposal.

Union Bay opposed issuance of the permits and appealed to the Shorelines Hearings Board (Board).

On May 6, 1994, the Board entered a final decision in favor of Cosmos. With the exception of slight changes to the design of the pier, the Board approved the City’s permits as issued and allowed Cosmos’ development to proceed. Union Bay moved for reconsideration and the Board denied the motion on June 30, 1994.

On July 28, 1994, twenty-eight days after the Board’s final order, Union Bay filed a petition for review in King County Superior Court. On July 28th or 29th, Union Bay served the petition on the attorneys of record in the agency proceedings: a private attorney for Cosmos, an Assistant Attorney General for the Department of Ecology, and an Assistant City Attorney for Seattle. Union Bay did not serve the parties themselves.

On August 5, 1994, Cosmos moved to dismiss Union Bay’s petition. Cosmos contended that Union Bay’s failure to serve the parties of record (rather than their attorneys) deprived the Superior Court of subject matter jurisdiction. The Superior Court granted the motion and dismissed Union Bay’s appeal.

We have accepted direct review of the Superior Court’s decision.

Issue

Did Union Bay comply with the requirement of service under the APA?

Analysis

The APA requires Union Bay to serve the petition for judicial review on all parties of record.

A petition for judicial review of an order shall be filed with the court and served on the agency, the office of the attorney general, and all parties of record within thirty days after service of the final order.

RCW 34.05.542(2). This is a necessary condition for appellate jurisdiction.

When reviewing an administrative decision, the superior court is acting in its limited appellate capacity, and all statutory procedural requirements must be met before the court’s appellate jurisdiction is properly invoked. Fay v. Northwest Airlines, Inc., 115 Wn.2d 194, 197, 796 P.2d 412 (1990). Therefore, under the administrative procedure act (APA), the superior court does not obtain jurisdiction over an appeal from an agency decision unless the appealing party files a petition for review in the superior court and serves the petition on all of the parties.

City of Seattle v. Public Employment Relations Comm’n, 116 Wn.2d 923, 926, 809 P.2d 1377 (1991).

Union Bay’s appeal poses a question of statutory construction: what is the meaning of the phrase "parties of record” as it appears in the APA? For guidance, we first look to the APA’s definition of the term "party.” See In re F.D. Processing, Inc., 119 Wn.2d 452, 458, 832 P.2d 1303 (1992) ("[a] legislative definition prevails over a dictionary definition or common understanding of any given term”). Next, we examine whether the Legislature intended the phrase "parties of record” to include attorneys of record. Finally, we review opinions from other state courts which have decided similar claims.

The attorneys in this case were not "parties” under the APA’s definition of that term. By mailing its petition to the attorneys of record, Union Bay served the representatives of the parties of record, not the parties themselves. The APA defines a "party” as

(a) A person to whom the agency action is specifically directed; or

(b) A person named as a party to the agency proceeding or allowed to intervene or participate as a party in the agency proceeding.

RCW 34.05.010(11). The attorneys of record in this case fit neither definition — the Shorelines Hearings Board did not direct action specifically to the attorneys and the Board did not name the attorneys as parties or allow them to intervene as a party.

Second, the phrase "parties of record” does not encompass attorneys of record. The Legislature in a different section of the APA once allowed service on attorneys as well as parties. For final orders from an agency, the APA formerly required "[a] copy of the decision and order and accompanying findings and conclusions shall be delivered or mailed to each party and to his attorney of record, if any.” Former RCW 34.04.120. The current version of the APA requires a reviewing officer to serve copies of final orders "upon each party.” RCW 34.05.464(9). The Legislature deleted all references to the attorneys of record.¹

We conclude from this amendment that the Legislature did not intend "parties of record” to include the parties’ attorneys. The Legislature treated parties and parties’ attorneys as separate entities, and the legislative history of the APA requires this court to distinguish between the two. Service on an attorney was appropriate under the APA only when the Legislature explicitly authorized it. Here, no such authorization exists. When the Legislature directs service on a party of record under the APA, it means service on the party, not the party’s attorney.

Third, decisions from other state courts support our construction of the APA’s requirement of service. The Legislature intended courts to interpret the APA consistently with administrative procedure statutes from other states.

The legislature also intends that the courts should interpret provisions of this chapter consistently with decisions of other courts interpreting similar provisions of other states, the federal government, and model acts.

RCW 34.05.001. The two state courts which have ruled on this issue of service, Connecticut and Wisconsin, refused to substitute service on attorneys for service on the parties of record. See Tarnopol v. Connecticut Siting Council, 212 Conn. 157, 163 n.8, 561 A.2d 931 (1989); Tomah-Mauston Broadcasting Co. v. Eklund, 143 Wis. 2d 648, 653, 422 N.W.2d 169 (Ct. App. 1988); County of Milwaukee v. Labor & Indus. Review Comm’n, 142 Wis. 2d 307, 313-14, 418 N.W.2d 35 (Ct. App. 1987), review denied, 419 N.W.2d 563 (Wis. 1988). In all three opinions, the respective state courts concluded that because attorneys were not parties to the litigation, service on the attorneys was inadequate.

We find the language and legislative history of the APA exclude attorneys of record from the scope of the phrase "parties of record.” Thus, Union Bay’s service of its petition for judicial review on the attorneys of record did not comply with RCW 34.05.542.

Union Bay argues in the alternative that it substantially complied with the requirement of service. Substantial compliance is

" 'actual compliance in respect to the substance essential to every reasonable objective of [a] statute.’ ” In re Santore, 28 Wn. App. 319, 327, 623 P.2d 702, review denied, 95 Wn.2d 1019 (1981) .... In the cases where substantial compliance has been found, there has been actual compliance with the statute, albeit procedurally faulty.

Seattle v. PERC, 116 Wn.2d at 928. This court has used the doctrine of substantial compliance in cases involving service of original process and appellate process. See, e.g., Reiner v. Pittsburg Des Moines Corp., 101 Wn.2d 475, 680 P.2d 55 (1984) (original process under RCW 4.28.080(10)); In re Saltis, 94 Wn.2d 889, 621 P.2d 716 (1980) (notice of appeal under industrial insurance act, RCW 51.52.110).

We cannot apply the doctrine to this case. The unequivocal definition of "party” in the APA combined with the deletion of "attorneys of record” from the act prevents such an application. Because the language and history of the APA exclude service on attorneys, we cannot permit such service by relying on substantial compliance.

Our ruling arises directly from the words of the APA and, for this reason, decisions applying the doctrine of substantial compliance to other statutes are not persuasive. Conversely, our refusal to permit service of petitions for judicial review on attorneys has no bearing on other statutes and other requirements of service. We decide only that Union Bay’s service of its petition did not satisfy the APA’s requirements.

Conclusion

Union Bay failed to serve the parties of record as the APA dictates. Accordingly, Union Bay did not perfect jurisdiction in the Superior Court and we affirm the dismissal of Union Bay’s petition for judicial review.

Dolliver, Smith, Madsen, Alexander, and Pekelis, JJ., concur.

1 Under the Shorelines Hearings Board’s procedural rules the agency’s notices and orders may be served upon the party’s representative and such service constitutes service upon the party. WAC 461-08-030(5). This administrative procedural rule was adopted prior to 1989 pursuant to statutory authorization. RCW 90.58.175; see also RCW 34.05.001 ("The legislature intends that to the greatest extent possible and unless this chapter clearly requires otherwise, current agency practices ... in effect before July 1, 1989, shall remain in effect.”). Where, as here, an agency has statutory authority to substitute service of an agency order upon a party’s representative, the agency regulation, the statute authorizing the regulation, and the legislative intent to defer to established agency practices will prevail over the general service requirement contained in RCW 34.05. Our opinion does not affect the validity of other statutes and regulations which prescribe requirements for service.