Conom v. Snohomish County

• Decision Date: 25 August 2005
• Docket Number: No. 76082-9.,76082-9.
• Citation: 118 P.3d 344,155 Wn.2d 154
• Parties: Ann and Tom CONOM, and their marital community, Appellants, v. SNOHOMISH COUNTY, a municipal corporation; Carefree Homes, Inc., Robert and Barbara King, and their marital community, Respondents.
• Court: Washington Supreme Court

118 P.3d 344

155 Wn.2d 154

Ann and Tom CONOM, and their marital community, Appellants, v. SNOHOMISH COUNTY, a municipal corporation; Carefree Homes, Inc., Robert and Barbara King, and their marital community, Respondents.

No. 76082-9.

Supreme Court of Washington, En Banc.

Argued June 7, 2005.

Decided August 25, 2005.

Tom P. Conom, Edmonds, for Appellants.

Randy Marc Boyer, Lynnwood, Jason Jerome Cummings, Civil Div. Snohomish County, Everett, for Respondents.

C. JOHNSON, J.

¶ 1 This case requires us to determine whether a superior court is divested of jurisdiction to hear a land use petition if a party fails to note an initial hearing within seven days of serving the petition as required under RCW 36.70C.080(1). This case was dismissed by the trial court because the court found it lacked jurisdiction to hear the land use petition. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 2 In November 2003, Tom and Ann Conom challenged an application for a rezone submitted by property owners, Robert and Barbara King, and a prospective developer, Carefree Homes, Inc. Clerk's Papers (CP) at 99-100. The proposed rezone would increase the density of the subject property in the unincorporated Meadowdale area north of Lynnwood from a six-lot subdivision to an eight-lot subdivision; the application was being decided administratively by the Snohomish County Department of Planning and Development Services. CP at 79.

¶ 3 On February 24, 2004, the Snohomish County Deputy Hearing Examiner held a public hearing, and on March 10, 2004, the rezone was approved in a written decision, finding that the subject property met the applicable approval tests. CP at 88. The Conoms' filed a motion for reconsideration which was denied. The Conoms then appealed to the Snohomish County Council. CP at 92. On May 19, 2004, the county council affirmed the decision of the deputy hearing examiner. CP at 75.

¶ 4 On June 11, 2004, the Conoms timely filed a land use petition in Snohomish County Superior Court appealing the decision of the County Council.¹ CP at 71-74. The Conoms' land use petition was served on Snohomish County the same day. The Kings and Carefree Homes were served the day before. On June 18, 2004, the county filed a notice of appearance, which was received in the mail by the Conoms on June 22, 2004. CP at 42-46. The Kings and Carefree Homes served their notices of appearance on the Conoms on July 7, 2004. CP at 23.

¶ 5 On June 23, 2004, the county filed a motion to dismiss the Conoms' land use petition. The county argued that the Conoms' failure to note the initial hearing on jurisdictional and preliminary matters as required by RCW 36.70C.080(1) divested the superior court of jurisdiction to hear the Conoms' land use petition. CP at 57-61. On June 28, 2004, the Conoms noted the initial hearing. CP at 50-51. The trial court granted the county's motion to dismiss the Conoms' land use petition. The Conoms filed a notice of appeal with this court and we granted direct review.

ANALYSIS

A. Standard of Review

¶ 6 Superior courts are courts of general jurisdiction. When a superior court acts in an appellate capacity, however, the superior court has only the jurisdiction as conferred by law. Thus, before a superior court may exercise its appellate jurisdiction, statutory procedural requirements must be satisfied. A court lacking jurisdiction must enter an order of dismissal. Crosby v. County of Spokane, 137 Wash.2d 296, 300-01, 971 P.2d 32 (1999). Whether a court may exercise jurisdiction is a question of law subject to de novo review. Similarly, questions of statutory interpretation are questions of law also subject to de novo review.

B. Land Use Petition Act

¶ 7 The Conoms maintain that the trial court improperly dismissed their land use petition because RCW 36.70C.080(1), which requires land use petitioners to note an initial hearing within seven days of serving the petition, is a procedural rather than jurisdictional requirement. Snohomish County, the Kings, and Carefree Homes (respondents) argue that RCW 36.70C.080(1) is a statutory mandate that, if not met, divests the superior court of jurisdiction to hear a land use petition.

¶ 8 Under the Land Use Petition Act (LUPA), chapter 36.70C RCW, parties must comply with certain procedures when filing and serving a land use petition in order to invoke the appellate jurisdiction of a superior court. See Citizens to Preserve Pioneer Park, LLC v. City of Mercer Island, 106 Wash.App. 461, 467, 24 P.3d 1079 (2001). RCW 36.70C.040(2) states that "[a] land use petition is barred, and the court may not grant review, unless the petition is timely filed with the court and timely served . . . ." A land use petition is timely if "it is filed and served on all parties . . . within twenty-one days of the issuance of the land use decision." RCW 36.70C.040(3).

¶ 9 No party disputes that the Conoms satisfied the requirements of RCW 36.70C.040 by timely serving and filing their land use petition. This case centers on the requirement under LUPA that a party note an initial hearing within seven days of serving a land use petition. RCW 36.70C.080(1) provides:

Within seven days after the petition is served on the parties identified in RCW 36.70C.040(2), the petitioner shall note, according to the local rules of superior court, an initial hearing on jurisdictional and preliminary matters. This initial hearing shall be set no sooner than thirty-five days and no later than fifty days after the petition is served on the parties identified in RCW 36.70C.040(2).

(Emphasis added.) "The defenses of lack of standing, untimely filing or service of the petition, and failure to join persons needed for just adjudication are waived if not raised by timely motion noted to be heard at the initial hearing . . . ." RCW 36.70C.080(3). Additionally, the briefing schedule, the date on which the record must be submitted, and the date for the trial on the merits are set at the initial hearing. RCW 36.70C.080(4). Parties have the option to waive the initial hearing. RCW 36.70C.080(5).

¶ 10 The Conoms maintain that while the requirements of RCW 36.70C.040 must be met before the superior court may exercise its appellate jurisdiction, RCW 36.70C.080(1) is "[m]erely procedural and does not implicate jurisdiction." Appellant's Br. at 14. The respondents counter that the statutory mandate that a party note the initial hearing within seven days of serving the petition is a jurisdictional prerequisite. Requiring parties to strictly comply with RCW 36.70C.080(1), the county urges, advances the legislative intent of LUPA to "provide consistent, predictable, and timely judicial review" of land use decisions. RCW 36.70C.010. The county cites our decision in Chelan County v. Nykreim, 146 Wash.2d 904, 52 P.3d 1 (2002), for the proposition that strict adherence to LUPA's statutory time limits is required.

¶ 11 The respondents are correct that we have repeatedly required parties to strictly adhere to the statutory procedures provided under LUPA for filing and serving a land use petition. In Nykreim, for example, we held that the challenge to a boundary line adjustment was time-barred under LUPA because the petitioner failed to appeal the land use decision within 21 days. We found this strict adherence to statutory time limits consistent with the "`strong public policy supporting administrative finality in land use decisions.'" Nykreim, 146 Wash.2d at 931, 52 P.3d 1 (quoting Skamania County v. Columbia River Gorge Comm'n, 144 Wash.2d 30, 49, 26 P.3d 241 (2001)). However, apart from citing cases in which appellate courts have required strict adherence to the filing and service requirements of LUPA under RCW 36.70C.040, the respondents have cited no authority where dismissal is proper other than in instances where parties failed to comply with statutory filing and service requirements.²

¶ 12 In a statement of additional authorities submitted to this court, the Conoms cite a recent decision from Division Two of the Court of Appeals to support its contention that the only jurisdictional prerequisites to LUPA are timely filing and service of a land use petition. In Quality Rock Products, Inc. v. Thurston County, 126 Wash.App. 250, 108 P.3d 805 (2005), Division Two examined whether a party's failure to name a necessary party in the caption of its land use petition deprived the superior court of jurisdiction. While the court acknowledged that the requirements of RCW 36.70C.040 require strict compliance, it found that the trial court wrongfully dismissed the land use petition. The petitioner's failure to comply with CR 10(a)(1) (Caption: Names of Parties) was based on a formal and technical error, which did not deprive the superior court of jurisdiction. The court found that the civil rules are procedural rules that do not prescribe jurisdictional requirements, stating that "[e]levating CR 10's formalist requirements to a jurisdictional threshold requirement under RCW 36.70C.040 is contrary to the purpose of both the civil rules and LUPA." Quality Rock, 126 Wash.App. at 271, 108 P.3d 805.

¶ 13 Based on their contention that RCW 36.70C.080(1) is merely a procedural requirement, the Conoms rely on Will v. Frontier Contractors, Inc., 121 Wash.App. 119, 89 P.3d 242 (2004), to support their argument that dismissal of their LUPA petition for failing to comply with RCW 36.70C.080(1) was improper. In Will, Division Two of the Court of Appeals held that dismissal of a breach of contract claim was an improper sanction for a homeowner's failure to serve an amended complaint containing that cause of action. Involuntary dismissal under CR 41(b) is the appropriate remedy where: (1) the party's refusal to obey a court order was willful or deliberate, (2) the party's actions substantially prejudiced the opponent's ability to prepare for trial, and (3) the trial court explicitly considered whether a lesser sanction would probably have sufficed. The...