North St. Ass'n v. City of Olympia
| Decision Date | 29 October 1981 |
| Docket Number | Nos. 47061-8,47469-9 and 47529-6,G-3,s. 47061-8 |
| Parties | NORTH STREET ASSOCIATION, a domestic non-profit corporation; Harry T. Johnson; James O'Hara; Robert E. McCluskey and Merlin Smith, Appellants, v. CITY OF OLYMPIA; Olympia City Commission; Du Wayne W. Krieger; Fred H. Pittman and S. Amber Pittman, husband and wife; Ronald A. Penley, and Sally J. Penley, husband and wife; John M. Dawley, Robert E. Dawley and Seattle-First National Bank as Co-Executors of the Estate of Leo Eldred Dawley, Deceased; Elgia W. Dawley, a widow; and John M. Dawley and Estelle G. Dawley, husband and wife, Respondents.PROPERTIES, INC., a Washington corporation, and Sun-Tides Vista Home Owners Association, a Washington corporation, Respondents, v. BOARD OF COUNTY COMMISSIONERS OF YAKIMA COUNTY, WASHINGTON, Respondent, Donald M. Brown and Colista A. Brown, his wife, Petitioners. GREATER KINGSGATE COUNCIL, INC., a Washington non-profit corporation, Appellant, v. KING COUNTY; King County Council; King County Council Clerk; Century Homes, Inc., a Washington corporation; and Peter R. Primeau, Respondents. |
| Court | Washington Supreme Court |
Carroll, Kennedy, Schuck & Caplinger, P.S., James J. Caplinger, John J. Watson, Seattle, Walters, Whitaker, Finney & Falk, Ronald F. Whitaker, Yakima, Davis, Wright, Todd, Riese & Jones, C. Keith Allred, Estep & Li, Ronald G. Brown, Seattle, for appellant Greater Kingsgate Council and petitioners.
Owens, Weaver, Davies & Dominick, Mark O. Erickson, City Atty., Alexander W. Mackie, Olympia, Jeffrey Sullivan, Yakima County Prosecutor, Louis Daniel Fessler, Special Yakima County Deputy Prosecuting Atty., Yakima, Norm Maleng, King County Prosecutor, Stephen O. Kenyon, Deputy Pros. Atty., Seattle, Velikanje, Moore & Shore, Inc., P.S., E. Fred Velikanje, Yakima, Thom, Navoni, Hoff, Pierson & Ryder, Richard W. Pierson, Seattle, for respondents Century Homes, et al.
This is a consolidation of three cases. In each, the trial court dismissed a writ of review, challenging a plat approval decision, on the grounds that necessary parties had not been timely joined and/or served. For reasons that vary with each case, we reverse the appealed judgments.
In North Street Association v. City of Olympia, 27 Wash.App. 625, 620 P.2d 108, an application was filed for the approval of a subdivision in southeast Olympia. After several hearings, the city commission on December 18, 1979, rendered an oral decision approving the plat, with the official "Notice of Decision" and "Findings in Support of Decision" following on January 22, 1980. On January 17, 1980, exactly 30 days after the oral decision, the appellant, North Street Association, an organization of neighborhood property owners, filed in superior court a "Notice of Application for Writ of Review." The notice named and was served on the City of Olympia and its planning commission. Although the plat sponsor and affected property owners had actual notice of the writ, they were neither named nor served.
On February 8, 1980, the City moved to deny the application for review on the ground that the Association had failed to name and to serve the plat sponsor and property owners. The Association then filed and served an "Amended Notice of Application for Writ of Review" on February 19, 1980, naming these additional parties. The respondents again moved to dismiss the application, this time maintaining that the necessary parties had not been served within the 30-day filing period provided by RCW 58.17.180. The trial court agreed and dismissed the action.
The case has been transferred to this court for direct review. Counsel on appeal were not counsel at trial.
In G-3 Properties, Inc. v. Board of County Commissioners, petitioners Donald and Colista Brown sought approval from the Yakima County Board of Commissioners (Board) to subdivide 29 acres of their land. The Board passed a preliminary plat approval on August 7, 1979. Ten days later, the respondent, G-3 Properties, Inc., filed an application for a writ of certiorari to review the Board's decision. The writ was directed to, named, and served on the Board.
On September 13, 1979, the Board moved to dismiss the writ because G-3 had failed to join the Browns. On September 19, 1979, 42 days after the original Board action, G-3 moved to join the Browns. The Browns then also moved to dismiss the suit for failure to join them within the 30-day filing period under RCW 58.17.180. The trial court denied G-3's motion and granted the Browns' motion.
The record indicates that at all times G-3 was aware of the Browns' interest in this matter. Similarly, although the Browns were never formally served, they had actual notice that G-3 had filed for the writ.
G-3 filed a notice of appeal, and the Browns then moved to dismiss it. On March 19, 1980, the commissioner denied the motion to dismiss and remanded the case to the trial court to determine whether the Browns had been or would be prejudiced by their nonjoinder. The trial court concluded that their nonjoinder had been and would continue to be prejudicial to them.
Notwithstanding that finding, the Court of Appeals, 27 Wash.App. 625, 620 P.2d 108, subsequently reversed the trial court, holding that joinder and service is not necessary within the 30-day period. The case is before this court upon a petition for review.
In Greater Kingsgate Council, Inc. v. King County, 27 Wash.App. 625, 620 P.2d 108, the King County Council passed ordinance No. 5032, approving a planned development project proposed by respondents Century Homes, Inc. and Peter Primeau. On August 29, 1980, 18 days after the ordinance, appellant Greater Kingsgate Council, a homeowners' association, applied for a writ of review. The application for the writ named all necessary parties: respondents King County, King County Council, King County Council Clerk, Century Homes, Inc., and Peter Primeau.
On the same day, the court caused the writ to be issued and service was made on respondents King County and King County Council Clerk. However, respondents Primeau and Century Homes were not served until the 3rd and 8th of September, respectively.
Due to the delayed service, respondents Century Homes and Peter Primeau moved for a dismissal of the application as being untimely under King County Code § 20.24.210. The other respondents soon joined the motion. The trial court originally denied the motion, but upon reconsideration decided to dismiss appellant's application. The stated grounds for the dismissal were that the appellant had not complied with King County Code § 20.24.210, which provides that writs must be filed within 20 days of the plat decision.
This case, like North Street Association, has been transferred to this court for direct review.
The controversy is the product of RCW 58.17.180 and, in the Greater Kingsgate case, King County Code § 20.24.210. RCW 58.17.180 provides:
Any decision approving or disapproving any plat shall be reviewable for unlawful, arbitrary, capricious or corrupt action or nonaction by writ of review before the superior court of the county in which such matter is pending. The action may be brought by any property owner in the city, town or county having jurisdiction, who deems himself aggrieved thereby: Provided, That application for a writ of review shall be made to the court within thirty days from any decision so to be reviewed. The cost of transcription of all records ordered certified by the court for such review shall be borne by the appellant.
King County Code § 20.24.210 states:
(a) Decisions of the council in cases identified in Section 20.24.070 (Land Use Matters) shall be final and conclusive action unless within twenty calendar days ... from the date of the council's adoption of an ordinance an aggrieved person applies for a writ of certiorari from the Superior Court in and for the county of King, state of Washington, for the purpose of review of the action taken; provided, no development or related action may occur during said twenty-day ... appeal period.
These three cases thus present the questions of when those filing periods begin and whether necessary parties can be both named and served after their expiration.
The trial courts concluded that service must be effectuated within the stated periods. The applicants disagree, arguing that pursuant to RCW 4.16.170, there is an additional 90 days after the filing of the writ.
RCW 58.17.180 and King County Code § 20.24.210 are unique in that they permit writs of review as a matter of right. Each is a hybrid, uses language not usually associated with writs of review, and thus both are understandably confusing to counsel. When reviewing such statutory writs, the court is acting in an appellate capacity and compliance with any statutorily-imposed time limits is jurisdictionally essential. Deschenes v. King County, 83 Wash.2d 714, 716, 521 P.2d 1181 (1974).
Our first task is to determine if RCW 58.17.180 and King County Code § 20.24.210 govern service of process. We believe they do not.
In resolving these cases, we must determine the meaning of the words "apply" and "application" as used in RCW 58.17.180 and Code § 20.24.210. Those words have generally meant a more informal procedure than that employed when commencing other types of civil actions. See generally Julius Restaurant, Inc. v. Lombardi, 282 N.Y. 126, 25 N.E.2d 874 (1940). McCarley v. McCarley, 289 N.C. 109, 221 S.E.2d 490 (1976); Fayette County Agricultural Soc'y v. Scott, 96 Ohio App. 6, 121 N.E.2d 118 (1953); Woerner v. O'Neal Comm'n Co., 169 Tenn. 468, 89 S.W.2d 162 (1936). Black's Law Dictionary defines "application" as "(t)he act of making a request for something." Black's Law Dictionary 127 (4th ed. 1951). And it defines "apply" as "(t)o make a formal request or petition, usually in writing, to a court ... for the granting of ... some rule or order ..." Black's at 128. In Julius, where a statute...
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