Durland v. San Juan County

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.
Supreme Court Clerk
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
MICHAEL DURLAND, KATHLEEN ) No. 89293-8
FENNELL, and DEER HARBOR ) (Ct. App. # 68453-1-1)
BOATWORKS, ) (Skagit County Superior Ct. # 112024809)
)
Petitioners, ) Consolidated with
)
v. ) No. 897 45-0
) (Ct. App. # 69134-1-1)
SAN JUAN COUNTY, WES ) (San Juan County Superior Ct. # 1220504 74)
HEINMILLER, and ALAN STAMEISEN, )
) En Bane
Respondents. )
) Filed _D_EC_1_1_2_01_4_ _ __
WIGGINS, J.-ln this consolidated case, petitioners brought an untimely
challenge to San Juan County's issuance of a garage-addition building permit.
Petitioners did not receive notice of the permit application and grant until the
administrative appeals period had expired. Thus, petitioners claim that our court's
interpretation of the Land Use Petition Act (LUPA), chapter 36.70C RCW, required
them to do the impossible: to appeal a decision without actual or constructive notice
of it. While this result may seem harsh and unfair, to grant relief on these facts would
be contrary to the statutory scheme enacted by the legislature as well as our prior
holdings. Indeed, we have acknowledged a strong public policy supporting
administrative deadlines and have further explained that "[l]eaving land use
             
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No. 89293-8 consolidated with 89745-0
decisions open to reconsideration long after the decisions are finalized places
property owners in a precarious position and undermines the Legislature's intent to
provide expedited appeal procedures in a consistent, predictable and timely
manner." Chelan County v. Nykreim, 146 Wn.2d 904, 933, 52 P.3d 1 (2002). This
court has faced numerous challenges to statutory time limits for appealing land use
decisions and has repeatedly concluded that the rules must provide certainty,
predictability, and finality for land owners and the government. Petitioners offer us
no mechanism that would permit them to assert their claim under LUPA's statutory
framework. 1
In Durland 1 Michael Durland skipped San Juan County's administrative
appeals process and filed a land use petition directly in superior court to challenge
the issuance of a building permit to his neighbor. The court dismissed the petition,
finding that there was no "land use decision" under LUPA. The Court of Appeals
agreed, 2 and we affirm. We hold that petitioners are required to exhaust available
administrative remedies in order to obtain a land use decision. We also hold that
there are no equitable exceptions to the exhaustion requirement. 3 The plain
1 We do not address the possibility of a constitutional writ because Durland tfas not raised
the issue. RAP 13.7(b) (this court generally only reviews issues raised by the parties in the
petition and answer). Likewise, because Durland did not raise equitable tolling in his briefs
or in his petition for review, we do not address whether equitable tolling might have permitted
Durland to assert his claim.
2 Durland v. San Juan County, 175 Wn. App. 316, 305 P.3d 246 (2013).
3 Because there was no land use decision and Durland failed to exhaust his administrative
remedies, we need not reach the superior court's third basis for dismissing Durland's
petition: that Durland failed to comply with LUPA's 21-day time bar.
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language of LUPA as set forth by the legislature and as interpreted by our court
compels this result.
In Durland 2 Michael Durland filed an untimely appeal with the San Juan
County hearing examiner, who dismissed the appeal. Durland then filed a complaint
and land use petition in superior court challenging the dismissal as a violation of his
constitutional right to due process. U.S. CONST. amend. XIV, § 1, CaNST. art. I, § 3.
We hold that there is no violation of due process because Durland has no
constitutionally protected property interest in the denial of his neighbor's permit.
Last, we affirm the award of attorney fees to Heinmiller in both cases and
award Heinmiller fees for this appeal. Under the plain language of RCW 4.84.370(1 ),
a private party who "prevail[s]" or "substantially prevail[s]" may obtain fees. The
statute does not limit fee awards to parties who prevail on the merits.
FACTS
On August 8, 2011, respondents Wesley Heinmiller and Alan Stameisen
(collectively Heinmiller) applied to San Juan County for a building permit to add a
second story to their garage. On November 1, 2011, San Juan County granted the
permit. Petitioners Michael Durland, Kathleen Fennel, and Deer Harbor Boatworks
(collectively Durland) are neighboring property owners who claim that the garage-
addition permit adversely impacts their views of the water and diminishes their ability
to enjoy the shoreline.
The San Juan County Code (SJCC) does not require public notice when
issuing building permits, and petitioners were unaware that the permit had been
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 et
at. v. San
 Juan
  
County et a/.     
No. 89293-8 consolidated with 89745-0
issued until December 5, 2011, 34 days after the permit was issued. 4 By that time,
the deadline for filing an administrative appeal under the county code had passed.
SJCC 18.80.140(D)(1) (administrative appeal of building permit must be filed within
21 days of issuance of permit). Nonetheless, on December 19, 2011, Durland filed
two actions, a LUPA petition in Skagit County Superior Court (Durland 1) and an
administrative appeal to the San Juan County hearing examiner (Durland 2).
In Durland 1, Durland challenged the validity of the building permit; he
asserted that the permit authorized construction in violation of county shoreline and
zoning requirements, and he sought a judicial determination that the building permit
was void. The superior court dismissed the LUPA petition for several reasons:
Durland had not exhausted his administrative remedies, the petition was not filed
within LUPA's 21-day appeal period, and there was no land use decision because
Durland had not timely appealed to the hearing examiner. The Court of Appeals
affirmed. Durland v. San Juan County, 175 Wn. App. 316, 305 P.3d 246, review
granted, 179 Wn.2d 1001, 315 P.3d 530 (2013).
In Durland 2, Durland also sought reversal of the permit in an administrative
appeal to the San Juan County hearing examiner. The hearing examiner dismissed
the appeal as untimely. Durland then filed a 42 U.S.C. § 1983 claim with an
alternative LUPA claim in San Juan Superior Court to challenge the order of
dismissal and the SJCC on grounds that both violated his constitutional right to due
4 Durland learned of the permit through a public records request.
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process. Durland argued that the SJCC violated his due process rights because it
does not require the county to provide notice of permitting decisions so that
neighboring property owners can timely challenge them. The superior court
summarily dismissed the LUPA petition and granted respondents' motion for
summary judgment on the§ 1983 claim. The Court of Appeals affirmed, holding that
Durland does not possess a constitutionally protected property interest upon which
a due process claim can be based. Durland v. San Juan County, noted at 177 Wn.
App. 1002, 2013 WL 5503681, at *1. 5 The Court of Appeals in both Durland 1 and
Durland 2 awarded Heinmiller attorney fees under RCW 4.84.370. We granted
review of both Durland 1 and Durland 2 and consolidated the two cases. Durland,
179 Wn.2d 1001.
ANALYSIS
I. In Durland 1, the superior court properly dismissed the LUPA petition
In Durland 1, the superior court correctly dismissed the land use petition
because Durland did not appeal to the hearing examiner prior to filing his petition.
Durland's failure to seek review with the hearing examiner is doubly fatal to his LUPA
suit: it meant that no final land use decision had been made, thus depriving the
superior court of appellate jurisdiction; and it deprived Durland of standing because
he had failed to exhaust his administrative remedies. Durland argues that he was
5The first appeal under LUPA (Wash. Ct. App., No. 68757-3-1) was dismissed as premature.
The second appeal containing Durland's § 1983 claim (Wash. Ct. App., No. 69134-1-1)
proceeded on the merits.
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not required to appeal to the hearing examiner because he had no notice of the
permit until after his appeal window had closed. We have rejected this argument.
A. Standard of review
LUPA governs judicial review of land use decisions. RCW 36. 70C.030. Under
LUPA, a court may grant relief from a land use decision only if the party seeking relief
has shown:
(a) The body or officer that made the land use decision engaged
in unlawful procedure or failed to follow a prescribed process, unless
the error was harmless;
(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;
(c) The land use decision is not supported by evidence that is
substantial when viewed in light of the whole record before the court;
(d) The land use decision is a clearly erroneous application of
the law to the facts;
(e) The land use decision is outside the authority or jurisdiction
of the body or officer making the decision; or
(f) The land use decision violates the constitutional rights of the
party seeking relief.
RCW 36. 70C.130(1 ). This court reviews rulings under RCW 36.70C.130 de novo.
Knight v. City of Yelm, 173 Wn.2d 325, 336, 267 P.3d 973 (2011 ).
B. There was no land use decision in Durland 1
The superior court did not have jurisdiction to hear this appeal because there
was no land use decision. The legislature enacted LUPA in 1995 to replace the writ
of certiorari as the exclusive means of appealing a local land use decision. RCW
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36.70C.030. LUPA's purpose is to ensure uniform and expedited judicial review of
land use decisions. RCW 36. 70C.01 0.
A superior court hearing a LUPA petition acts in an appellate capacity and has
only the jurisdiction conferred by law. Knight, 173 Wn.2d at 337 (citing Conom v.
Snohomish County, 155 Wn.2d 154, 157, 118 P.3d 344 (2005)). Under LUPA, the
superior court review is limited to actions defined by LUPA as land use decisions.
RCW 36.70C.010, .040(1); Post v. City of Tacoma, 167 Wn.2d 300, 309, 217 P.3d
1179 (2009). A "land use decision" is defined as
a final determination by a local jurisdiction's body or officer with the
highest level of authority to make the determination, including those
with authority to hear appeals, on:
(a) [a]n application for a project permit ....
RCW 36. 70C.020(2).
The issuance of a permit may qualify as a final land use decision if there is
not a way to administratively appeal the permit under the applicable code. See, e.g.,
Nykreim, 146 Wn.2d at 927-29 (permit issuance deemed land use decision because
no appeals process in place at the time); see also Asche v. Bloomquist, 132 Wn.
App. 784, 791, 133 P.3d 475 (2006) (issuance of permit was land use decision
because county code did not provide for administrative challenge to building permit).
But where the permitting authority creates an administrative review process, a
building permit does not become "final" for purposes of LUPA until administrative
review concludes. Only then is there a final land use decision that can be the subject
of a LUPA petition. Ferguson v. City of Dayton, 168 Wn. App. 591, 277 P.3d 7057
             
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(2012) (no land use decision prior to final determination by planning commission,
which was entity with the last word on the permit). This comports with the plain
reading of the statute, which requires that the "final determination" come from the
"officer with the highest level of authority ... , including those with authority to hear
appeals." RCW 36.70C.020(2).
Here, the San Juan County Department of Community Development and
Planning issued the building permit, which was subject to appeal to a hearing
examiner. SJCC 18.80.140(8)(11 ). Thus, only a decision by the hearing examiner
qualifies as a land use decision. Because Durland did not appeal to the hearing
examiner, the examiner did not issue a final determination, and Durland failed to
obtain a land use decision under LUPA. The court properly dismissed the petition.
We reject Durland's argument that San Juan County's decision to issue the
permit was a land use decision under LUPA because the SJCC provides that
administrative determinations "shall be final" unless appealed. SJCC 18.1 0.030(C).
This SJCC provision does not make the permit issuance a "final determination" for
LUPA appeals purposes. Cf. Ward v. Bd. of Skagit County Comm'rs, 86 Wn. App.
266, 271, 936 P.2d 42 (1997) (county code categorized hearing examiner's decision
as "final decision," but because decision was nonetheless subject to appeal, it did
not constitute a land use decision under LUPA). Indeed, in Samuel's Furniture, Inc.
v. Dep't of Ecology, we rejected an interpretation of "final" that depends on a party's
decision to appeal. 147 Wn.2d 440, 453, 54 P.3d 1194, 63 P.3d 764 (2002). We
explained that "[a] decision must be either final or interlocutory for appellate
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purposes." /d. at 452. Defining finality in terms of a party's decision to appeal is
unclear because "the decision is final if [a party] decides not to challenge the
decision, but nonfinal, although not interlocutory, if it does." /d. at 453.
For these reasons, no land use decision had been made at the time Durland
filed his LUPA petition. Consequently, the superior court lacked jurisdiction to hear
the petition.
C. There are no equitable exceptions to LUPA's exhaustion requirement
We hold that there are no equitable exceptions to the exhaustion requirement
in LUPA; consequently, Durland's failure to exhaust his administrative remedies
deprived him of standing to file a LUPA petition. To have standing to file a land use
petition, a petitioner must first "exhaust[] his or her administrative remedies to the
extent required by law." 6 RCW 36.70C.060(2)(d). Here, Durland filed his LUPA
petition with the superior court prior to completing his administrative appeal to the
San Juan County hearing examiner. Because he failed to exhaust his administrative
remedies, the superior court correctly concluded that he lacked standing to file a land
use petition.
Durland argues that there are equitable exceptions to the exhaustion
requirement because the statute requires exhaustion only "to the extent required by
6 LUPA's definition of "land use decision" implies that exhaustion of administrative remedies
is always required before a superior court may exercise its appellate jurisdiction. RCW
36.70C.020(2); see also West v. Stahley, 155 Wn. App. 691,697,229 P.3d 943 (2010) ("[t]o
obtain a final determination from a local jurisdiction, a LUPA petitioner must necessarily
exhaust all available administrative remedies"). Accordingly, no court has ever excused the
exhaustion requirement in a LUPA case.
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law." RCW 36.70C.060(2)(d). He argues that this phrase refers to equitable
exceptions to the exhaustion requirement and that he falls within an equitable
exception either because he had no notice of the permit prior to the administrative
appeals deadline or because exhaustion would have been futile. We reject this
argument.
"[T]o the extent required by law" refers to statutory exceptions, not equitable
exceptions. RCW 36.70C.060(2)(d). We have looked to the exhaustion requirement
in the Washington Administrative Procedure Act (APA), chapter 34.05 RCW, to
interpret LUPA's exhaustion requirement. See Citizens for Mount Vernon v. City of
Mount Vernon, 133 Wn.2d 861, 869, 947 P.2d 1208 (1997). In doing so, we look for
similar or identical language. In LUPA, "to the extent required by law" parallels
language in the APA that "[a] petitioner for judicial review need not exhaust
administrative remedies to the extent that this chapter or any other statute states that
exhaustion is not required." RCW 34.05.534(2) (emphasis added). This suggests
that "to the extent required by law" refers to explicit statutory exceptions to the
exhaustion requirement. Notably, the APA also empowers courts to excuse
exhaustion if the petitioner shows that remedies would be patently inadequate,
exhaustion would be futile, or grave irreparable harm would result from having to
exhaust administrative remedies. RCW 34.05.534(3). LUPA contains no similar
language, and we have never interpreted "to the extent required by law" to refer to
equitable exceptions. It is within the legislature's power to craft statutory exceptions
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if it so wishes. Our duty is to discern and implement the intent of the legislature.
State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003).
We decline to recognize equitable exceptions to LUPA's exhaustion
requirement because the exhaustion requirement furthers LUPA's stated purposes
of promoting finality, predictability, and efficiency. This is in keeping with our LUPA
case law; generally, we have required parties to strictly adhere to procedural
requirements that promote LUPA's stated purposes. For example, we require strict
compliance with LUPA's bar against untimely or improperly served petitions. In
Habitat Watch v. Skagit County, we held that LUPA's 21-day appeals window barred
a citizens' group's challenge to a construction project, despite the fact that the county
mistakenly failed to provide public notice for two public hearings on permit extensions
for the project. 155 Wn.2d 397, 406-10, 120 P.3d 56 (2005). We explained that "even
illegal decisions must be challenged in a timely, appropriate manner." !d. at 407. 7
By contrast, we have found that LUPA's form and content requirements do not
directly relate to LUPA's stated purpose. Knight, 173 Wn.2d at 336. Accordingly, we
require only substantial compliance with the form and content requirements.
7 See also Nykreim, 146 Wn.2d at 926 (compliance with 21-day time limit essential for court
to acquire jurisdiction); Samuel's Furniture, Inc., 147 Wn.2d at 462 (noting that "LUPA does
not require that a party receive individualized notice of a land use decision in order to be
subject to the time limits for filing a LUPA petition" and holding that a government agency
challenging a local land use decision must file appeal within 21 days); Brotherton v.
Jefferson County, 160 Wn. App. 699, 703-05, 249 P.3d 666 (2011) ("Because the
Brothertons' complaint did not invoke LUPA or comply with the strict 21-day deadline for
appealing final land use decisions, the County's decision has become unreviewable.").
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Here, the exhaustion requirement is essential because it furthers LUPA's
policy of efficient and timely review. Indeed, the promotion of these goals is inherent
in exhaustion requirements generally. As we have noted, the doctrine of exhaustion
(1) insure[s] against premature interruption of the administrative
process; (2) allow[s] the agency to develop the necessary factual
background on which to base a decision; (3) allow[s] exercise of
agency expertise in its area; (4) provide[s] a more efficient process;
and (5) protect[s] the administrative agency's autonomy by allowing it
to correct its own errors and insuring that individuals were not
encouraged to ignore its procedures by resorting to the courts.
S. Hollywood Hills Citizens Ass'n v. King County, 101 Wn.2d 68, 73-74, 677 P.2d
114 (1984) (citing McKart v. United States, 395 U.S. 185, 193-94, 89 S. Ct. 1657, 23
L. Ed. 2d 194 (1969)). Thus, the exhaustion requirement furthers LUPA's stated
purpose and there are no equitable exceptions to it. See also Knight, 173 Wn.2d at
336 (noting that LUPA's standing requirements, which include exhaustion of
administrative remedies (RCW 36.70C.060(1 )(d), are jurisdictional) (citing Nykreim,
146 Wn.2d at 926)).
Accordingly, we hold that the superior court properly dismissed Durland's
petition in Durland 1 because there was no land use decision under LUPA and
because Durland failed to exhaust his administrative remedies. For those reasons,
the legislature has not authorized the courts to review the challenged permit in this
case.
II. In Durland 2, the superior court properly granted summary judgment in favor
of the county on the§ 1983 claim and dismissed the LUPA petition
In Durland 2, Durland claims the county violated his constitutional right to due
process by failing to provide notice of the permit so that he could timely challenge it
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and by dismissing his administrative appeal as untimely. U.S. CaNST. amend. XIV
("nor shall any State deprive any person of life, liberty, or property, without due
process of law"). But Durland has not shown that he has a constitutionally protected
property interest to support his due process claims. A constitutionally protected
property interest exists when a plaintiff demonstrates that he or she possesses a
"legitimate claim of entitlement" under the law. Bd. of Regents v. Roth, 408 U.S. 564,
577,92 S. Ct. 2701,33 L. Ed. 2d 548 (1972). Here, the SJCC does not grant
adjoining property owners a claim of entitlement in the protection of their views; the
code does not require the County to deny a building permit that might impair private
views of the water. Thus, Durland's due process claims fail.
A. Standard of review
This court reviews summary judgment determinations de novo, engaging in
the same inquiry as the trial court. Morin v. Harrell, 161 Wn.2d 226, 230, 164 P.3d
495 (2007). Summary judgment is proper where there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law. CR
56( c). In addition, the applicability of the constitutional due process guaranty is a
question of law subject to de novo review. Wash. lndep. Tel. Ass'n v. Wash. Utils. &
Transp. Comm'n, 149 Wn.2d 17, 24, 65 P.3d 319 (2003).
B. Protected property interests include all benefits to which there is a legitimate
claim of entitlement
The Civil Rights Act, 42 U.S.C. § 1983, provides a federal cause of action for
the deprivation of constitutional rights. To prevail in a § 1983 action alleging
deprivation of procedural due process, a plaintiff must prove that the conduct
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complained of deprived the plaintiff of a cognizable property interest without due
process. See Mission Springs, Inc. v. City of Spokane, 134 Wn.2d 947, 962, 954
P.2d 250 (1998). In other words, the plaintiff must identify a property right, show that
the state has deprived him or her of that right, and show that the deprivation occurred
without due process. See id. Durland's claim fails because he has not identified a
cognizable property right.
"Property" under the Fourteenth Amendment encompasses more than
tangible physical property. U.S. CONST. amend. XIV; see Logan v. Zimmerman Brush
Co., 455 U.S. 422,430, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982). Protected property
interests include all benefits to which there is a "'legitimate claim of entitlement'."
Conard v. Univ. of Wash., 119 Wn.2d 519, 529, 834 P.2d 17 (1992) (quoting Roth,
408 U.S. at 577). In Roth, the Supreme Court explained,
To have a property interest in a benefit, a person clearly must have
more than an abstract need or desire for it. He must have more than a
unilateral expectation of it. He must, instead, have a legitimate claim of
entitlement to it.
408 U.S. at 577. Constitutionally protected property interests may be created either
through (1) contract, (2) common law, or (3) statutes and regulations. See Conard,
119 Wn.2d at 529-30. Durland does not claim a property interest created by contract
or common law. Therefore, we analyze only whether Durland has a property interest
created by statute or regulation.
In Kentucky Dep't of Corrections v. Thompson, the Supreme Court explained
that statutes creating a liberty interest need not explicitly announce the interest but
must contain "mandatory language" giving rise to a claim of entitlement. 490 U.S.
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454, 463, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989) (prison visitation regulation did
not create a protected interest because did not explicitly provide that a visitor must
be denied a visit if grounds were present or must be allowed a visit if grounds were
absent). 8 We have applied the "mandatory language" test to determine whether a
statute creates a protected property interest. Conard, 119 Wn.2d at 529-30. With
respect to permits, a property interest arises when there are articulable standards
that constrain the decision-making process. Wedges/Ledges of Cal., Inc. v. City of
Phoenix, 24 F. 3d 56, 62 (9th Cir. 1994 ). In other words, a property interest exists if
discretion is substantially limited. Braswell v. Shoreline Fire Oep't, 622 F. 3d 1099(9th Cir. 201 0).
In a typical land use case, the question is whether a permit applicant has a
"property right" in the requested or revoked permit. Courts have found that a property
interest exists when an applicant is entitled to a permit or variance having met certain
criteria. See Foss v. Nat'/ Marine Fisheries Serv., 161 F.3d 584, 588 (9th Cir. 1998)
(holding that "specific, mandatory" and "carefully circumscribed" requirements
constrained discretion enough to give rise to property interest). Conversely, "a
8 The "mandatory language" test articulated in Kentucky Dep't of Corrections, 490 U.S. 454,
has since been deemed inapplicable when determining whether prison regulations give rise
to a protected liberty interest. Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 132
L. Ed. 2d 418 (1995). But the "mandatory language" test is still applicable in nonprison
cases. See, e.g., Town of Castle Rock v. Gonzales, 545 U.S. 748, 125 S. Ct. 2796, 162 L.
Ed. 2d 658 (2005) (applying "mandatory language" test to find that wife did not have property
interest in police enforcement of restraining order); see also Doyle v. City of Medford, 606
F. 3d 667, 672-73 (9th Cir. 201 0) (no protected property interest in postretirement health
insurance coverage for employees because statute was not mandatory).
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statute that grants the reviewing body unfettered discretion to approve or deny an
application does not create a property right." Thornton v. City of St. Helens, 425 F. 3d
1158, 1164 (9th Cir. 2005).
Less typically, opponents of development sometimes claim a property interest
in the denial of a permit. In these cases, courts have applied the same analytic
framework. See Shanks v. Dressel, 540 F. 3d 1082, 1090-91 (9th Cir. 2008); see also
Crown Point I, LLC v. Intermountain Rural Elec. Ass'n, 319 F.3d 1211, 1217 & n.4
(1Oth Cir. 2003) (rejecting distinction between due process claim brought by permit
applicant and claim brought by third party); Hillside Cmty. Church v. Olson, 58 P.3d
1021, 1028 n.6 (Colo. 2002) (the two situations are "simply opposite sides of the
same argument"). But the focus is whether the regulation at issue mandates
protection of the third party's interest. Thus, in analyzing Durland's § 1983 claim, we
must determine whether the SJCC requires the permitting authority to consider the
views of neighboring property owners. The answer is no.
C. Under the SJCC, Durland does not have a legitimate claim of entitlement to
his views of the water
The SJCC imposes height and size limitations on the construction of
residential structures including garages. Durland argues that these limitations create
a property interest because they were intended to protect neighbors' views of the
water. This claim fails because the SJCC does not contain mandatory language
requiring the county to consider neighbors' views of the water before issuing building
permits for garage construction.
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The first step in our analysis is to identify the applicable provisions in the code.
The San Juan County Shoreline Master Program (SMP), chapter 18.50 of the SJCC,
governs Heinmiller's application for a permit to construct a second-story office and
entertainment area above his garage. Specifically, the permit at issue falls under
SJCC 18.50.330, which applies to residential developments and appurtenant
structures including garages. 9
Second, we determine whether the applicable provisions are couched in
mandatory language giving rise to a legitimate claim of entitlement. Here, Durland's
due process claim fails because there is no mandatory language in SJCC 18.50.330
giving rise to a protected property interest. SJCC 18.50.330(8)(15) and
.330(E)(2)(a) limit the number and size of accessory structures associated with a
single-family residence. Specifically, the code allows two accessory structures-one
garage building and one accessory dwelling unit of no more than 1,000 square feet
each, or a combination of the two not exceeding 2,000 square feet. Durland claims
the garage was more than 1,000 square feet so it was not a lawful accessory
structure. Accordingly, a building permit to add to the garage could not be lawfully
issued. But nothing in subsections .330(8)(15) or .330(E)(2) suggests that the
9 Indeed, parties appear to agree that the development at issue falls under SJCC 18.50.330.
In the land use petition and complaint, Durland argues that the permit authorized
development in violation of the height and size limitations imposed by section .330 on
accessory structures. See SJCC 18.50.330(8) (Regulations-Location and Design),
.330(E) (Regulations-Accessory Use).
17
             
Durland et a/. v. San Juan County et a/.
No. 89293-8 consolidated with 89745-0
mandatory size limitations are intended to protect the views of neighboring property
owners.
Durland also relies on general height limitations in SJCC 18.50.330(8)(14 ).
But subsection .330(8)(14) does not apply because Heinmiller is constructing a
garage addition, which is governed by the more specific and restrictive provisions of
subsections .330(8)(15) and .330(E)(2)(a). See SJCC 18.50.330(8)(5),
.330(E)(2)(a) (setting height limits for garage and accessory buildings), .040(E)
("Where provisions of this SMP conflict, the more restrictive of the provisions applies
unless specifically stated otherwise."). And unlike subsection .330(8)(14),
subsections .330(8)(15) and .330(E)(2)(a) never mention protection of views.
In any case, the height limits in subsection .330(8)(14) exist to protect public
visual access, not private views. 10 Under subsection .330(8)(14 ), any residential
structure that exceeds 35 feet in height shall be permitted only as a conditional use
and an applicant must demonstrate that "the structure will not result in significant
adverse visual impacts, nor interfere with normal, public, visual access to the water."
SJCC 18.50.330(8)(14). "The applicant must also demonstrate that there are
compensating factors which make a taller structure desirable from the standpoint of
the public interest." /d. (emphasis added). A later provision in SJCC 18.50.330
10 We are not suggesting that the provision grants any member of the public a property
interest in views of the water. As we explained in Crosby v. Spokane County, "[T]he interests
of the public, including those who are neighbors, are represented by the Board. That
representation tends to limit any possible prejudice to neighboring landowners." 137 Wn.2d
296, 310, 971 P.2d 32 (1999) (neighboring landowners did not have interest requiring that
they be joined in writ of certiorari proceedings if feasible).
18
   et
Durland a/. v. San
 Juan

County et a/.      
No. 89293-8 consolidated with 89745-0
confirms that the County is principally concerned with residential developments that
impair public visual access. See SJCC 18.50.330(F)(1) (specifically regulating
"PublicNisual Access" with regard to residential subdivisions and nonexempt
developments). The code does not use the terms "private" and "public"
interchangeably. 11 Thus, we conclude that the height limits in subsection .330(8)(14)
do not give neighbors a legitimate claim of entitlement in their views of the water.
The Court of Appeals correctly distinguished Asche v. Bloomquist, 132 Wn.
App. 784, 133 P.3d 475 (2006). In Asche, the petitioner filed, in part, a due process
claim alleging that he was not given notice when Kitsap County granted a permit to
his neighbors to build a structure that obstructed his view of Mount Rainier. /d. at
788-89. The Court of Appeals noted that it had to find a protected property interest
in the view before it could consider the due process claim. /d. at 796. Recognizing
that no such interest existed under common law, the court looked to a local zoning
ordinance. /d. at 797. The court found that the zoning ordinance created a protected
property interest in the view because "the plain language of this ordinance requires
that buildings more than 28 feet and less than 35 feet high can be approved only if
11 The trial court contrasted a view protection provision in SJCC 18.50.140(D) to aid in
interpreting subsection .330(8)(14). See SJCC 18.50.140(D) ("to limit interference with
views from surrounding properties to the shoreline and adjoining waters, development on or
over the water shall be constructed only as far seaward as necessary for the intended use").
The court reasoned that the "adverse visual impact" language in subsection .330(8)(14)
differs from the specific reference to "views from surrounding properties" in SJCC
18.50.140(D). Thus, Durland cannot imply that "adverse visual impacts" refers to
neighboring views. In any case, Durland does not rely on SJCC 18.50.140. And at best,
this provision indicates that Heinmiller should construct only as far seaward as is necessary,
which he does because this is a second-story garage addition (the only location to build a
second-story garage is directly on top of the garage).
19
   et
Durland a/. v. San
 Juan
  
County et a/.     
No. 89293-8 consolidated with 89745-0
the views of adjacent properties . .. are not impaired." /d. at 798 (emphasis added).
Hence, a property interest existed because the ordinance forbade the construction
of buildings that impaired the view of neighboring properties; the language was
mandatory with respect to neighboring views.
In sum, when a local code fails to explicitly create a property right-as is the
case here-the court determines whether language in the code mandates certain
outcomes when all factual predicates are met. Here, the height and size limitations
of the SJCC do not create a property interest in the denial of a third-party's building
permit. The statutory language does not significantly constrain San Juan County's
discretion to issue garage or accessory unit permits that may impact views from
neighboring properties. From this, it follows that Durland's procedural due process
claim fails. Thornton, 425 F.3d 1158 (absence of property right means there can be
no violation of procedural due process in the land use context). Thus, we affirm the
Court of Appeals' grant of summary judgment on the§ 1983 claim. And, for the same
reasons, we affirm dismissal of Durland's land use petition, which similarly alleges
violation of due process. Durland has no claim under LUPA because he does not
have a sufficient property interest to require that notice be given to him. 12
12Because Durland lacks a cognizable property interest, we do not reach the issue of
whether LUPA's procedural requirements apply to bar a related § 1983 claim.
20
             
Durland eta/. v. San Juan County eta/.
No. 89293-8 consolidated with 89745-0
Ill. Affirming the fee awards in Durland 1 and Durland 2 and granting Heinmiller
attorney fees for this appeal
We must also decide whether attorney fees are available under RCW
4.84.370 when a party prevails on jurisdictional grounds. Under subsection (1) of
RCW 4.84.370, a private party who substantially prevails before the governmental
unit and in more than one judicial review is entitled to an award of attorney's fees.
But under subsection (2), a county, city, or town may be awarded fees if its decision
was "upheld at superior court and on appeal." RCW 4.84.370(2). Applying the statute
to this case, we hold that Heinmiller, a private party, is entitled to an award of fees in
both Durland 1 and Durland 2.
A. Standard of review
Whether a party is entitled to an award of attorney's fees is a question of law
and is reviewed on appeal de novo. Newport Yacht Basin Ass'n of Condo. Owners
v. Supreme Nw., Inc., 168 Wn. App. 86,285 P.3d 70, review denied, 175 Wn.2d 1015,
287 P.3d 10 (2012). The general rule in Washington is that attorney fees will not be
awarded for costs of litigation unless authorized by contract, statute, or recognized
ground of equity. See Clausen v. Icicle Seafoods, Inc., 174 Wn.2d 70, 79, 272 P.3d
827, cert. denied, 133 S. Ct. 199, 184 L. Ed. 2d 39 (2012).
B. RCW 3.84.370(1) allows fees for private parties who prevail on procedural or
substantive grounds
RCW 4.84.370 provides,
(1) Notwithstanding any other provisions of this chapter, reasonable
attorneys' fees and costs shall be awarded to the prevailing party or
substantially prevailing party on appeal before the court of appeals or
the supreme court of a decision by a county, city, or town to issue,
21
  Durland
           
eta/. v. San Juan County et at.
No. 89293-8 consolidated with 897 45-0
condition, or deny a development permit involving a site-specific
rezone, zoning, plat, conditional use, variance, shoreline permit,
building permit, site plan, or similar land use approval or decision. The
court shall award and determine the amount of reasonable attorneys'
fees and costs under this section if:
(a) The prevailing party on appeal was the prevailing or
substantially prevailing party' before the county, city, or town, or in a
decision involving a substantial development permit under chapter
90.58 RCW, the prevailing party on appeal was the prevailing party or
the substantially prevailing party before the shoreline[s] hearings board;
and
(b) The prevailing party on appeal was the prevailing party or
substantially prevailing party in all prior judicial proceedings.
(2) In addition to the prevailing party under subsection (1) of
this section, the county, city, or town whose decision is on appeal is
considered a prevailing party if its decision is upheld at superior court
and on appeal.
(Alteration in original.)
·There is an apparent split in the Court of Appeals on the interpretation of RCW
4.84.370. Division Two has held that parties are not entitled to fees unless the court
rules on the merits; no fees are awarded if the court dismisses a LUPA petition as
untimely. Witt v. Port of Olympia, 126 Wn. App. 752, 759, 109 P.3d 489 (2005) (RCW
4.84.370 requires a party to prevail on the merits); Overhu/se Neighborhood Ass'n v.
Thurston County, 94 Wn. App. 593, 601, 972 P.2d 470 (1999). Division One has
awarded fees to substantially prevailing parties regardless of whether the court
reaches the merits. Prekeges v. King County, 98 Wn. App. 275, 285, 990 P.2d 405(1999) (RCW 4.84.370 does not require that a party prevail on the merits).
This split can be reconciled. RCW 4.84.370 is divided into two subsections
based on the identity of the parties involved. Under subsection (1 ), prevailing parties
22
 Durland
 eta!.
 v.  San
 Juan
       
County eta/.
No. 89293-8 consolidated with 89745-0
are entitled to attorney fees only if a county, city, or town makes a permitting decision
in their favor and the party is successful in defending that decision in at least two
courts. Habitat Watch, 155 Wn.2d at 413. Subsection (1) does not require that a
party prevail "on the merits." Instead, the statutory language indicates the
legislature's intent to allow attorney fees when a party prevails on any issue,
jurisdictional or otherwise. The term "prevail" does not connote either a merits
decision or a procedural one, but suggests only that a party succeeded in the
litigation. Cf. Blair v. Wash. State Univ., 108 Wn.2d 558, 572, 740 P.2d 1379 (1987)
(addressing RCW 4.84.01 0; holding that "a party prevails when it succeeds on any
significant issue which achieves some benefit the party sought"). Moreover, the
ordinary meaning of "prevail" does not connote a particular type of success. See
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1797 (2002) ("prevail" means
generally "to gain victory" or "to be ... successful"). And, the statute allows fees for
parties who "substantially" prevail, which suggests that the prevailing party need not
prevail on his or her entire claim. Knight, 173 Wn.2d at 347. Thus, we hold that
under subsection (1 ), a party must succeed in some manner to "prevail." This
includes jurisdictional wins.
Subsection (2) governs specifically when a "county, city, or town" is the party
seeking attorney fees. RCW 4.84.370(2). Under this provision, a public entity will
receive attorney fees if its decision is "upheld" in two courts, which implies a ruling
on the merits. Thus, in accordance with the structure of the statute, we separate
subsections (1) and (2). We award fees under subsection (1) to private parties who
23
 Durland
 eta/.
 v. San
 Juan
       
County eta/.
No. 89293-8 consolidated with 89745-0
prevail on procedural or substantive grounds, but we award fees to the public entity
that made the permitting decision only when the public entity succeeds in defending
its decision on the merits.
Our case law supports this interpretation of RCW 3.84.370. 13 We affirm the
result in Prekeges because Division One properly awarded fees to a private party
who prevailed on jurisdictional grounds. And we approve Division Two cases to the
extent they apply subsection (2) to deny fees to public entities who prevailed on
jurisdictional grounds. In other words, we approve the results in Overhu/se, Witt,
Northshore, 14 and Pullman 15 but disapprove language in these cases that a city or
county is not entitled to fees if it does not "substantially prevail" on the merits. See,
e.g., Brotherton v. Jefferson County, 160 Wn. App. 699, 705-06, 249 P.3d 666 (2011)
(improperly relying on RCW 4.84.370(1) to deny County's request for attorney fees).
The concurrence disagrees with our holding that a party "prevails" under RCW
4.84.370(1) when that party prevails on any issue, whether procedural or
substantive, but that under subsection .370(2) a county, city, or town's decision is
"upheld" only if the decision is upheld on the merits, not on procedural grounds. The
concurrence argues that "we often use the words 'uphold' and 'affirm'
13 The decision of the Court of Appeals, Division One, in Coy is the only case that does not
fit within this interpretation because it awards a city fees, which should have been denied
under subsection (2). Coy v. City of Duvall, 174 Wn. App. 272, 298 P.3d 134, review denied,
178 Wn.2d 1007, 308 P.3d 642 (2013). We disapprove this part of the Coy holding.
14Northshore Investors, LLC v. City of Tacoma, 174 Wn. App. 678, 700-01, 301 P.3d 1049(2013).
15 Richards v. City of Pullman, 134 Wn. App. 876, 883-84, 142 P.3d 1121 (2006).
24
 Durland
 et
a/. v.  San
 Juan
  
County et a/.     
No. 89293-8 consolidated with 89745-0
interchangeably, indicating agreement with a lower court's decision." Concurrence
at 5. But the legislature did not use the term "affirm"; it used the contrasting terms
"substantially prevail[ ]" and "decision is upheld." The use of different terms within
the same statute implicates the "basic rule of statutory construction that the
legislature intends different terms used within an individual statute to have different
meanings." State v. Tracer, 173 Wn.2d 708, 718, 272 P.3d 199 (2012).
C. Heinmiller is a substantially prevailing party
Here, we grant fees to Heinmiller under RCW 4.84.370(1) because he
substantially prevailed. In Durland 1, the court dismissed the land use petition and
the Court of Appeals affirmed. Thus, Heinmiller succeeded in defending his permit,
and we affirm the fee award and grant fees for this appeal.
In Durland 2, the court dismissed the§ 1983 claim and the LUPA petition. We
agree with the Court of Appeals that because Heinmiller was not a defendant to the
§ 1983 claim, he should not receive fees or costs related to defending against that
claim. Durland, 2013 WL 5503681, at *4. But he is entitled to fees related to the
land use petition. Ct. Sing v. John L. Scott, Inc., 83 Wn. App. 55, 920 P.2d 589(1996), rev'd on other grounds, 134 Wn.2d 24, 948 P.2d 816 (1997) (if law permits
attorney fees on one substantive theory but not another, court should award fees
only for the hours devoted to pursuing claim where fees are recoverable). Thus, we
affirm the Court of Appeals in Durland 2 and grant Heinmiller reasonable attorney
fees to the extent Durland 2 deals with the LUPA claim.
25
 Durland
 et          
a/. v. San Juan County et a/.
No. 89293-8 consolidated with 89745-0
CONCLUSION
In Durland 1, we affirm the Court of Appeals' dismissal of the LUPA petition
because there was no land use decision and because Durland failed to exhaust his
administrative remedies. We also affirm the award of attorney fees and award
Heinmiller attorney fees for this appeal. Durland 1 is remanded for further
proceedings consistent with this opinion.
In Durland 2, we affirm summary judgment in favor of the county on the§ 1983
claim because Durland has no protectable property interest to support his due
process claim. In addition, we hold that the superior court did not err in dismissing
Durland's land use petition. On the issue of attorney fees, we affirm the Court of
Appeals and remand to the trial court to determine the proper amount of attorney
fees to be awarded. We also award Heinmiller reasonable attorney fees for
proceedings in this court to the extent they were incurred in connection with the land
use petition, also to be awarded by the trial court. Durland 2 is remanded for further
proceedings consistent with this opinion.
26
             
No. 89293-8
WE CONCUR.
27
             
Durland, et al. v. San Juan County, et al.
No. 89293-8
STEPHENS, J. (concurring)-! agree with the majority's decision to affirm
and to grant Wesley Heinmiller attorney fees, and for that reason, I concur.
However, I disagree with the majority's interpretation ofRCW 4.84.370.
First, the majority correctly recognizes a split in the Court of Appeals on the
interpretation of the statute but suggests a novel approach not advanced by anyone.
The Court of Appeals interprets RCW 4.84.370 as being comprehensive, meaning
the standard-as interpreted by each division-applies to private and local
governments alike. The majority attempts to "reconcile" the inconsistencies
between the divisions by splitting the statute such that under subsection (1) private
parties do not require a ruling on the merits but that under subsection (2) local
governments do require a ruling on the merits. Majority at 23. However, the
majority's attempt to reconcile the conflict between the divisions ignores their very
             
Durland, et al. v. San Juan County, et al., 89293-8 (Stephens, J. Concurrence)
reasomng. None of the divisions have split the statute in this manner, and neither
the statutory text nor the divisions' interpretations fit into the majority's model.
Division Two has held that parties-whether private or governmental-are
not entitled to attorney fees unless the court rules on the merits. This is evident in
Witt v. Port of Olympia, where the court said, "[W]e have limited RCW 4.84.370
to require that the 'prevailing' party prevail 'on the merits' in an adversarial
proceeding." 126 Wn. App. 752, 758, 109 P.3d 489 (2005) (citing Overhulse
Neigh. Ass 'n v. Thurston County, 94 Wn. App. 593, 601, 972 P.2d 470 (1999)).
Referencing the entire statute, the court in Witt did not split subsections (1) and (2)
when it interpreted the term "prevail" as requiring a ruling on the merits. Id. at
759. Further, the Witt court reasoned that the legislative intent of the statute "in its
entirety" is to "allow attorney fees only to a party who prevails on the merits." Id.This legislative intent applies to both local government and private parties
indistinguishably.
Division One disagrees with Division Two 1 but has similarly interpreted the
standard under RCW 4.84.370 as applicable to both local government and private
1
Heinmiller argues that Divisions One and Two are no longer split on this issue
because Division Two recently held that attorney fees may be awarded where courts
dismiss land use appeals on jurisdictional grounds. See Nickum v. City of Bainbridge
Island, 153 Wn. App. 366, 383-84, 223 P.3d 1172 (2009). Division Two in Nickum,
however, did not address the conflict that remains from its previous decisions in
Overhulse and Witt, relying instead on Division One's decision in San Juan Fidalgo
.-2-
 Durland,
 et al. v.San
 
Juan County,  (Stephens,
et al., 89293-8    
J. Concurrence) 
parties. In Prekeges v. King County, the court held that the statute does not require
a ruling on the merits. 98 Wn. App. 275, 285, 990 P.2d 405 (1999). For support of
this proposition, the court cited its previous decision in San Juan Fidalgo Holding
Co. v. Skagit County, 87 Wn. App. 703, 714-15, 943 P.2d 341 (1997), where it
awarded attorney fees to the respondents who prevailed on procedural grounds,
including both Skagit County and aligned private parties. Prekeges, 98 Wn. App.
at 285.
While the bare facts in Witt, Overhulse, and Prekeges may line up with the
majority's attempt to reconcile the split, the courts' reasoning in each case cannot
be harmonized. The divisions continue to assert their conflicting interpretations of
the statute, as is evident in several unpublished Court of Appeals opinions. See
Toward Responsible Dev. v. City of Black Diamond, noted at 181 Wn. App. 1030,
2014 WL 2796526 (Division One) (applying the same attorney fee analysis and
granting fees to both the city and an aligned private party after the Land Use
Petition Act (LUPA), chapter 36.70C RCW, petition was dismissed on procedural
grounds); Mangat v. Snohomish County, noted at 176 Wn. App. 1010, 2013 WL
4734005, at *4-5 (Division One) (granting attorney fees to both the county and
Holding Co. v. Skagit County, 87 Wn. App. 703, 709, 713-15, 943 P.2d 341 (1997).
Thus, Division One and Two remain in conflict on this issue, as noted by the Court of
Appeals in this case. Durland v. San Juan County, 175 Wn. App. 316, 326 n.6, 305 P .3d
246 (2013) (recognizing that Division Two of this court views this question differently).
-3-
 Durland,
 et al. v.San
Juan County, (Stephens,
et al., 89293-8    
J. Concurrence) 
aligned private parties who prevailed on procedural grounds, without reaching the
merits ofthe petition); O'Brien v. City ofBremerton, noted at 131 Wn. App. 1046,
2006 WL 401702, at *8 (Division Two) (denying attorney fees to both the city and
an aligned private party because the lower court failed to reach the merits of the
petition, as it was dismissed as untimely).
I am not convinced by the majority's attempt to reconcile the inconsistent
decisions in the Court of Appeals. The statute is simply not amenable to being
split depending on whether the prevailing party is a governmental entity or a
private actor. I agree with the Court of Appeals that the statute, read as a whole,
must apply in the same way to all affected parties.
I believe Division One has correctly interpreted RCW 4.83.370, particularly
the word "prevail," as not requiring a ruling on the merits. I would disapprove of
Division Two's interpretation that requires a merit-based win. As the majority
acknowledges, we have generally said a party "prevails" when it succeeds in
litigation. Cf Riss v. Angel, 131 Wn.2d 612, 633, 934 P.2d 669 (1997) ("In
general, a prevailing party is one who receives an affirmative judgment in his or
her favor."). 2 The majority relies too heavily on its own unsupported interpretation
2
We have supported this proposition in other areas of law. See, e.g., Blair v.
Wash. State Univ., 108 Wn.2d 558, 572, 740 P.2d 1379 (1987) (similarly holding in a
-4-
   
Durland, et al. v.San
Juan County, (Stephens,
et al., 89293-8    
J. Concurrence) 
of the word "upheld." Majority at 24. However, we have never said that a win on
the merits of an action, as opposed to procedural grounds, is necessary for a
decision to be upheld. To the contrary, this court's use of the word "uphold"
generally supports Division One's interpretation.
We often use the words "uphold" and "affirm" interchangeably, indicating
agreement with a lower court's decision. An appellate court may "uphold" the
decision of a lower court, even when a lower court does not rule on the merits. See
Phoenix Dev., Inc. v. City of Woodinville, 171 Wn.2d 820, 825, 256 P.3d 1150(2011) ("uphold[ing]" the city's decision to dismiss a land use petition for failing
to meet the statutory criteria for relief); Rasmussen v. Emp 't Sec. Dep 't, 98 Wn.2d
846, 848, 658 P.2d 1240 (1983) (affirming the commissioner of the employment
security department's decision to "uph[o]ld" the appeal tribunal's dismissal of
petitioner's claim as untimely). 3
The ordinary meaning of the word "uphold" also supports this interpretation.
See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2517 (2002) (uphold
civil rights case); Andersen v. Gold Seal Vineyards, Inc., 81 Wn.2d 863, 865, 505 P.2d
790 (1973) (similarly holding in a tort case).
3
Another example of this appears in the similar LUPA case of Knight v. City of
Yelm, where Justice J.M. Johnson states on two separate occasions, "I would affirm the
decision of the Court of Appeals dismissing Knight's LUPA petition for lack of
standing," 173 Wn.2d 325, 349, 267 P.3d 973 (2011), (J.M. Johnson, J., dissenting)
(emphasis added), and "I would uphold the Court of Appeals in dismissing Knight's
LUPA petition for lack of standing," id. at 352 (J.M. Johnson, J., dissenting) (emphasis
added).
-5-
   
Durland, et al. v.San
Juan County, (Stephens,
et al., 89293-8    
J. Concurrence) 
generally means "to give support to"). An appellate court may "give support to" a
lower court's ruling on non-merit-based arguments. For these reasons, I believe
Division One is correct in interpreting RCW 4.84.370 as not requiring a ruling on
the merits where a party may be awarded attorney fees when it prevails on
procedural grounds.
Furthermore, the legislature's use of the passive voice, "is upheld," reflects
the different role played by local government in land use appeals. Land use
appeals often involve at least three parties-local government, a party challenging
the decision, and a party benefiting from the decision. Local government plays
two roles in these proceedings, that of a decision-maker and that of a litigant.
While local governments are often involved in land use challenges as necessary
parties, the private parties that benefit from the land use decision often drive the
litigation defending the decision. See, e.g., Prekeges, 98 Wn. App. 275 (where US
West Wireless, a party aligned with King County who benefited from the county's
land use decision, was the party advancing arguments to the court). The
legislature's decision to use the passive voice may be a reflection of this dual role,
where the local government's own decision is upheld by a court while the private
parties present arguments to the court.
-6-
 Durland,
 et al. v.San

Juan County, (Stephens,
et al., 89293-8    
J. Concurrence) 
Lastly, the majority's interpretation gives local governments the perverse
incentive to advance weaker, merit-based arguments in favor of stronger, non-
merit-based arguments just to recover attorney fees. A local government's
strongest argument in a LUPA challenge may be one that does not reach the merits
of a case, e.g., where a party files a procedurally invalid challenge, lacks standing,
or files after the statute of limitation has run. Under the majority's interpretation, a
local government does not recover attorney fees when it successfully defends a
LUP A challenge for procedural invalidity. This interpretation leads to strange and
illogical results. For example, a city may be aligned with private parties in
defending a land use decision. However, if a city succeeds with non-merit-based
arguments, the private parties aligned with the city may benefit from the city's
argument and receive fees, but the city is left with the cost of litigating a
procedurally invalid claim. This is an unjust result not intended by the statute.
The majority's attempt to reconcile the divisional split does not address the
conflict in the Court of Appeals and ignores the substance of the debate. To
resolve the conflict, RCW 4.84.370 must be interpreted as treating all parties the
same. I wholly agree with Division One that a party does not require a ruling on
the merits to recover fees. Because the court properly awarded Heinmiller attorney
fees, however, I concur with the majority's result.
-7-
 Durland,
 et al. v.San
 
Juan County,  (Stephens,
et al., 89293-8    
J. Concurrence) 
-8-