Steve Berschauer v. Dep't Of Enterprise Services, City of Olympia

FILED
DECEMBER 12, 2017
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
STEVE BERSCHAUER, )
) No. 34970-5-111
Appellant, )
)
V. )
)
STATE OF WASHINGTON, ) UNPUBLISHED OPINION
DEPARTMENT OF ENTERPRISE )
SERVICES; PUGET SOUND ENERGY, )
INC., a Washington State Public Utilities )
Corporation; FYI PROPERTIES, a )
Washington nonprofit corporation; THE )
BANK OF NEW YORK MELLON )
TRUST COMPANY, NATIONAL )
ASSOCIATION, as Trustee Under )
Indenture of Trust Dated As Of August 1, )
2009 and THE CITY OF OLYMPIA, )
)
Respondents. )
SIDDOWAY, J. - Steve Berschauer appeals the trial court's dismissal of his
declaratory judgment action seeking to invalidate a boundary line adjustment approved
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by the city of Olympia (City) in September 2011. His action was time-barred under the
Land Use Petition Act (LUPA), chapter 36.70C RCW. We affirm.
PROCEDURAL BACKGROUND
On December 4, 2015, Steve Berschauer filed the action below, seeking a
declaration that the city of Olympia's boundary line adjustment to property the State of
Washington represented to be state-owned was void ab initio. He sought a court-ordered
reversion of boundaries to those existing before the adjustment. Mr. Berschauer claimed
that contrary to the requirements of a City ordinance, the City approved an application for
the adjustment he had not signed, even though it affected real property to which he held
title by adverse possession.
Former Olympia Municipal Code (OMC) 17.30.030 (2006) 1 provided that the
City's planning department was to certify as compliant and approve a proposed boundary
line adjustment "if and only if' seven requirements were met. One was that "[t]he map
includes acknowledged signatures of all parties having an interest in lots the lines of
which are being adjusted." Id.; Clerk's Papers (CP) at 14-15. Former OMC 17.30.040
(2006), the code provision following the list of requirements, stated that "the boundary
line adjustment shall not be final until ... [t]here is compliance with the requirements [in
OMC 17.30 .030]." CP at 15. The map submitted by the State in support of its proposed
1
Olympia Ordinance 6408, § 6 (2006). The provision has since been amended by
Olympia Ordinance 7072, § 1 (2017).
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boundary line adjustment bore the acknowledged signature of only the director of its
Department of Enterprise Services.
Attached to Mr. Berschauer's complaint in this action was an order of the
Thurston County Superior Court entered two weeks earlier in Cause No. 13-2-02519-9,
determining by summary judgment that Mr. Berschauer and his predecessors had
adversely possessed a part of the property affected by the State's proposed boundary line
adjustment. The order decreed that the 10 year period of adverse possession started with
the building of a fourplex that it is undisputed took place in the l 960s. 2
Mr. Berschauer's complaint acknowledged that the boundary line adjustment
being challenged for the first time in 2015 had been approved by the City "in late 2011,
under BLA 3 No. 11-0135." CP at 6. It was later demonstrated that the boundary line
adjustment was recorded on December 21, 2011.
In answering the complaint, the defendants asserted that Mr. Berschauer's claim
was barred by the statute of limitations. The City soon moved under CR l 2(b )( 6) and
2
Final orders in that action have also been appealed by Mr. Berschauer. The trial
court's determination that Mr. Berschauer and his predecessors acquired title to property
by adverse possession was not cross appealed by the State. See our decision in Steve
Berschauer v. State of Washington Department of General Administration, et al., Court
of Appeals No. 35502-1-111 (unpublished), also being filed today.
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Boundary line adjustment (BLA).
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12(c) to dismiss the complaint as time-barred under LUPA, and the State joined the
motion. At the hearing on the motion, the fact that Mr. Berschauer had remedial options
other than collaterally attacking the boundary line adjustment was raised in questioning
by the trial court and mentioned in its oral ruling. See Report of Proceedings (Feb. 26,
2016) at 7-8, 21. The court granted summary judgment to the City and State on the basis
that Mr. Berschauer's action was time-barred, however. Mr. Berschauer appeals.
ANALYSIS
The legislative purpose in enacting LUPA was to "establish[] uniform, expedited
appeal procedures and uniform criteria for reviewing [land use] decisions, in order to
provide consistent, predictable, and timely judicial review." RCW 36.70C.010.
"[LUPA] establishes a uniform 21-day deadline for appealing the final decisions of local
land use authorities and is intended to prevent parties from delaying judicial review at the
conclusion of the local administrative process." Habitat Watch v. Skagit County, 155
Wn.2d 397,406, 120 P.3d 56 (2005). LUPA's statute of limitations begins to run on the
date a land use decision is "issued" and dictates the exact date a decision is issued based
on the nature of the decision. Id. at 409; RCW 36.70C.040(4)(a).
A declaratory judgment action challenging the validity of a boundary line
adjustment is subject to review under LUPA. Chelan County v. Nykreim, 146 Wash. 2d
904, 929, 52 P.3d 1 (2002). Despite a four year time gap between the adjustment and his
lawsuit, Mr. Berschauer contends his claim was not time-barred because the City's failure
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to abide by the municipal code's signature requirement made its approval of BLA No.
11-0135 void ab initio, and subject to challenge at any time. He also makes passing
argument, citing Habitat Watch, that the 21-day limitations period never began to run or
that it began to run only when he prevailed, in part, on his adverse possession claim.
We review de novo a trial court's decision to grant a CR 12(b)(6) motion. San
Juan County v. No New Gas Tax, 160 Wash. 2d 141, 164, 157 P.3d 831 (2007).
I LUPA 's 21-day statute of limitations applies
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By its terms, LUP A applies to claims that a "body or officer that made the land
I use decision engaged in unlawful procedure or failed to follow a prescribed process."
RCW 36.70C.130(l)(a). It also expressly applies to claims that "[t]he land use decision
I is outside the authority or jurisdiction of the body or officer making the decision." RCW
I 36.70C.130(l)(e). In Habitat Watch, our Supreme Court relied on this language to hold
I that under LUPA, "defects in land use determinations that could have resulted in
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decisions that were void ab initio under pre-LUPA cases fall within LUPA, with its
express 21-day limitation period." 155 Wash. 2d at 407. Elsewhere, the Court stated that a
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challenge to a land use decision "lies within LUP A-even where the decision is allegedly
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I' Mr. Berschauer tries to avoid this clear holding of Habitat Watch by suggesting
that the decision is anomalous and perhaps no longer good law after South Tacoma Way,
LLC v. State, 169 Wash. 2d 118,233 P.3d 871 (2010) and Bilanko v. Barclay Court Owners
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l
I Ass'n, 185 Wn.2d 443,450,375 P.3d 591 (2016). Both of those cases apply the historic
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distinction between actions that are only voidable and therefore subject to the statute of
I limitations, and those that are void and "subject to challenge and invalidation at any time,
perhaps years later." South Tacoma, 169 Wash. 2d at 124. But South Tacoma and Bilanko
I did not involve a challenge to land use planning decisions subject to LUPA. They
II represent a distinction between void and voidable decisions that exists in non-LUPA
cases but that Habitat Watch holds does not apply under LUPA.
We also agree with the City and State that even ifland use decisions could be
defective in ways making them void ab initio after LUPA, the City's unwitting approval
of the State's noncompliant application would be voidable, not void. South Tacoma
provided examples of cases in which the Court has articulated why a government's mere
violation of its statutes does not make its action void:
In Wendel [v. Spokane County, 27 Wash. 121, 123-24, 67 P. 576 (1902)],
this court held that a municipal corporation is liable for-and thus bound
by-only those actions it had the general authority to perform. Over the
years, we have repeatedly upheld this distinction, maintaining that a
government action is truly ultra vires only if the agency was without
authority to perform the action. Bd. ofRegents v. City of Seattle, 108
Wn.2d 545,552, 741 P.2d 11 (1987) ("An act of an officer which is within
his realm of power, albeit imprudent or violative of a statutory directive, is
not ultra vires."); Haslund v. City ofSeattle, 86 Wash. 2d 607, 622, 547 P.2d
1221 (1976) ("An ultra vires act is one performed without any authority to
act on the subject."); Finch v. Matthews, 74 Wash. 2d 161, 172,443 P.2d 833
(1968) (stating that an entity is bound by "acts which are within the scope
of the broad governmental powers conferred, granted or delegated, but
which powers have been exercised in an irregular manner or through
unauthorized procedural means").
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169 Wash. 2d 118 at 122-23. See accord Bilanko, 185 Wash. 2d at 450-51 ("Actions that fail
to comply with statutory requirements are generally not void unless the legislature has
authorized such a penalty."). Approving a boundary line adjustment is an action the City
had the power to perform. By not requiring the signature of Mr. Berschauer on the
application, the City merely violated a directive of the municipal code (unwittingly, since
Mr. Berschauer's title was not yet a matter of record). The boundary line adjustment was
voidable if timely challenged, but not void.
L UP A's 21-day statute of limitations applied to Mr. Berschauer' s challenge to the
boundary line adjustment.
Mr. Berschauer's claim was time-barred under LUPA.
As a fall back argument, Mr. Berschauer points out that "[e]ven if Habitat Watch
applies, the court in that case noted that the LUPA limitations period does not begin to
run until a land use decision is issued," and "here, the boundary line adjustment was
never actually approved ... because it did not comply with the requirement of [former]
OMC 17 .30.030( 5) that the map bear the acknowledged signature of every person with an
interest in the property." Br. of Appellant at 10.
Consistent with LUPA's objective of providing uniform appeal procedures and
consistent and predictable judicial review, it defines when government action is a "land
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use decision," including when a decision is final. Durland v. San Juan County, 182
Wash. 2d 55, 65, 340 P.3d 191 (2014) (county's definition of "final" determination was
irrelevant; L UP A's definition of "land use decision" controls). A land use decision is
final under LUPA when any administrative appeal available under the applicable code
has been exhausted. Id. at 64-65. "This comports with the plain reading of the statute,
which requires that the 'final detennination' come from the 'officer with the highest level
of authority ... , including those with authority to hear appeals." Id. at 65 (alteration in
original) (quoting RCW 36.70C.020(2)); and see Samuel's Furniture, Inc. v. Dep 't of
Ecology, 147 Wash. 2d 440, 452-53, 54 P.3d 1194 (2002), 63 P.3d 764 (2003) (finality
turned on whether the municipal decision reached the merits and terminated a permit
process; once the city determined the permit should issue, "that was the end of the
controversy. Samuel's received the relief it had requested. No additional issues
remained."). The City's approval of the boundary line adjustment was final for purposes
of its being a "land use decision" under LUPA.
LUPA also dictates when a decision is "issued." Under RCW 36.70C.040(4)(a), a
land use decision that is not an ordinance or resolution resolving a quasi-judicial matter is
considered issued on the third day after it is mailed, or on the date on which the local
jurisdiction provides notice that a written decision is publicly available. If that date does
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not apply, the decision is considered issued on the date it is entered into the public record.
RCW 36.70C.040(4)(c). The record on appeal does not indicate whether approval of the
boundary line adjustment was mailed or notice given, but does establish an outside
issuance date of December 21, 2011, the date it was recorded.
Finally, Mr. Berschauer argues that Habitat Watch ran the limitation period from
the time Habitat Watch became aware it had the basis for a challenge, and he did not
become aware he had the basis for a challenge until the Thurston County Superior Court
entered its November 20, 2015 order; he filed his action within 21 days thereafter. (Mr.
Berschauer does not explain why the State and City should have known earlier that his
signature was required on the application, but he should not.) But Habitat Watch ran the
limitations period from the date when Habitat Watch received notice because the Court
found that the applicable statutory issuance date was that provided by RCW
36.70C.040(4)(a) ("[t]hree days after ... the local jurisdiction provides notice that a
written decision is publicly available" (emphasis added)). Here, the applicable statutory
issuance date was December 21, 2011, as provided by RCW 36.70C.040(4)(c). A
plaintiff need not be aware of a land use decision for the 21-day period to run.
Applewood Estates Homeowners Ass 'n v. City of Richland, 166 Wash. App. 161, 168-69,
269 P.3d 388 (2012) (citing Samuel's Furniture, 147 Wash. 2d at 462).
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The trial court properly dismissed Mr. Berschauer's claim for his failure to meet
LUPA's 21-day deadline. 4
Attorney fees on appeal
The City and State request an award of attorney fees and costs under RCW
4.84.370 should they prevail on appeal. Mr. Berschauer asks us to deny a fee award
because the City and State (1) prevailed on only procedural grounds and (2) failed to
comply with the requirements of RAP 18.l(b).
In Durland, our Supreme Court resolved a split of authority in this court over
whether a prevailing party is entitled to an award of fees under RCW 4.84.370 if the
courts do not reach the merits of the land use decision. Observing differences between
subsections (1) and (2) of the statute, the Court held that a prevailing party other than
"the county, city, or town whose decision is on appeal" is entitled to an award of fees
4 The City argues that we could also affirm the trial court on the basis that Mr.
Berschauer had an alternative remedy, since a final judgment on his adverse possession
claim would give him record title, on the basis of which he could seek a boundary line
adjustment of his own. "Ordinarily, where a plaintiff has another adequate remedy, he or
she should not proceed by way of a declaratory judgment action." Wagers v. Goodwin,
92 Wn. App. 876,880,964 P.2d 1214 (1998). While CR 57 authorizes a trial court to
enter a declaratory judgment even though another remedy is available, "[t]he granting of
declaratory relief is discretionary" with the trial court. Ronken v. Bd. of County Comm 'rs
ofSnohomish County, 89 Wn.2d 304,310,572 P.2d 1 (1977).
The fact that Mr. Berschauer did not need declaratory relief is arguably a simpler
and more compelling basis for affirming the trial court. Since the focus in the trial court
was almost entirely on the statute of limitations with only fleeting mention of Mr.
Berschauer's remedial options, we decide the appeal on that basis.
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when it prevails on any issue, jurisdictional or otherwise. Durland, 182 Wash. 2d at 78
(construing RCW 4.84.370(1)). RCW 4.84.370(2) authorizes an award of fees to the
entity that made the challenged land use decision "if its decision is 'upheld' in two
courts," however, which the Court held implies prevailing on the merits. Id. Here, then,
the City is not entitled to an award of fees on appeal, while the State is.
RAP 18.1 (b) requires a party who requests reasonable attorney fees or expenses on
appeal to "devote a section of its opening brief to the request for the fees or expenses."
The requirement has been held to be mandatory. Wilson Court Ltd. P 'ship v. Tony
Maroni's, Inc., 134 Wash. 2d 692, 710 n.4, 952 P.2d 590 (1998). The State has not
segregated its request for attorney fees from the rest of its brief with a heading or flagged
it by formatting, but it has devoted a free-standing paragraph of its opening brief to the
request, identifying RCW 4.84.370 as authority and arguing why it applies.
No reported decision holds just how "separate" the "separate section [of] the brief'
must be to comply with RAP 18.l(b). Wilson Court, 134 Wash. 2d at 710 n.4. A clearer
demarcation from the remainder of the brief would have been prudent, but the State's
brief satisfies the purpose for requiring a separate section, which is to require argument
and citation to authority sufficient "to advise us of the appropriate grounds for an award."
Id. Decisions denying fees under RAP 18.l(b) have emphasized a party's failure to
comply with this substantive aspect of the "section" requirement. E.g., Denaxas v.
Sandstone Court of Bellevue, LLC, 148 Wn.2d 654,671, 63 P.3d 125 (2003) (fees denied
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where "[n]one of the briefs mentioned attorney fees"); Bishop of Victoria Corp. Sole v.
Corp. Bus. Park, LLC, 138 Wn. App. 443,462, 158 P.3d 1183 (2007) (fees denied where
requested in the last sentence of the brief, but without any citation to authority or
argument); Phillips Bldg. Co. v. An, 81 Wn. App. 696,704,915 P.2d 1146 (1996) (fees
requested on appeal "without any argument or citation to authority"); Austin v. US. Bank
of Wash., 73 Wash. App. 293, 313, 869 P.2d 404 (1994) (parties "have made no argument
and cited no authority to support their request for fees").
We find the State's request compliant with RAP 18.l(b). We award it reasonable
fees and costs on appeal subject to its compliance with RAP 18.l(d).
Affirmed.
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.
WE CONCUR:
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