San Juan Fidalgo Holding Co. v. Skagit County, 38591-7-I

• Citation: 943 P.2d 341,87 Wn.App. 703
• Decision Date: 02 September 1997
• Docket Number: No. 38591-7-I,38591-7-I
• Court: Court of Appeals of Washington
• Parties: SAN JUAN FIDALGO HOLDING COMPANY, a Washington corporation, Petitioner, v. SKAGIT COUNTY; Friends of Sensible Drainage, a Washington nonprofit corporation, and Carol Ehlers, Respondents.

Page 703

87 Wn.App. 703

943 P.2d 341

SAN JUAN FIDALGO HOLDING COMPANY, a Washington corporation, Petitioner, v. SKAGIT COUNTY; Friends of Sensible Drainage, a Washington

nonprofit corporation, and Carol Ehlers, Respondents.

No. 38591-7-I.

Court of Appeals of Washington,

Division 1.

Sept. 2, 1997.

As Amended Sept. 30 and Nov. 5, 1997.

William R. Hickman, Michael P. Monroe, Reed McClure, Seattle, for Petitioner

John R. Moffat, Deputy Prosecuting Attorney, Skagit County Prosecutors Office, Mount Vernon, Peter J. Eglick, Helsell Fetterman Martin, Todd & Hokanson, Seattle, for Respondents.

KENNEDY, Acting Chief Judge.

San Juan Fidalgo Holding Company delivered its land use petition to the Skagit County Auditor's Office approximately 15 minutes after the office had closed on the last day of the 21-day service period for commencing land use appeals under the Land Use Petition Act, Ch. 36.70C RCW. Efforts to locate the county auditor for purposes of service before midnight were unsuccessful. We affirm the trial court's dismissal of the petition and award attorney fees on appeal to the respondents. "Normal office hours" under RCW 4.28.080(1) are the hours that an auditor's office is open to the public, not the hours that any employee might be working in the office

outside those hours. Leaving a land use petition with a deputy auditor after normal office hours on the last possible day for service does not constitute actual or substantial compliance with the statutory time limit for filing land use appeals. Inability to locate the county auditor for service before the hour of midnight on the last possible day for service does not require the court to issue a constitutional writ to reinstate an untimely appeal.

FACTS

San Juan Fidalgo Holding Company (Fidalgo) owns eleven acres of land on Fidalgo Island in Skagit County. Desiring to build a residential development on the land, Fidalgo set about gaining final plat approval for the project. Following a hearing on Fidalgo's plat application, a Skagit County hearing examiner recommended that the County approve the plat with certain modifications.

The recommendation was appealed by Carol Ehlers and the Friends of Sensible Drainage (Friends), who own property downhill of the proposed development and who contended that the type and position of the drainage system built by Fidalgo increased the risk of landslides on their property. The Skagit County Board of Commissioners granted Ehlers' and the Friends' appeal and in October of 1995 voted to remand the matter for redesign of the drainage system. On November 7, 1995, the Board signed Resolution No. 15940, formally remanding the request for final plat approval to the hearing examiner and directing the examiner to consider the request only after Fidalgo submitted a revised plan curing the drainage problems.

In response, Fidalgo timely filed a summons and land use petition and complaint in Whatcom County Superior Court seeking reversal of the Board's decision and naming Skagit County, Ehlers and Friends as defendants. Fidalgo retained process server Jason Burnett to serve Skagit County with the summons and complaint by filing the documents with the Skagit County Auditor's Office, as well as to serve Ehlers and Friends.

On November 28, 1995, which the parties agree was the latest possible day of the 21-day filing period, Burnett first drove to Anacortes to serve the other defendants and then drove to the Skagit County Courthouse. Arriving between 4:35 and 4:45 p.m., he found that the courthouse had closed for the day and that the building was locked. Burnett contacted a building custodian, who let him inside and directed him to the auditor's office. The posted hours for the auditor's office were from 8:30 a.m. until 4:30 p.m. Burnett reached the auditor's office at approximately 4:50 p.m. Several employees, including Chief Deputy Auditor Carol Brown, were still inside. The record reflects that Ms. Brown regularly works past the hours that the auditor's office is open to the public for the transaction of business. When Burnett told Brown that he needed to file documents, Brown refused to accept them and advised him to come back the next day between 8:30 a.m. and 4:30 p.m. After telephoning his supervisor, Burnett placed the documents on the office floor and left. Brown picked up the papers and clocked them in at 5:06 p.m.

At the direction of his supervisor, Burnett returned to the auditor's office approximately 15 minutes later and asked for the documents back. Brown refused to return the papers. When Burnett asked for the county auditor's home address and phone number, Brown refused to give him the information and advised him to contact the auditor the next day during business hours. Fidalgo's attorneys and agents attempted throughout the evening to locate the auditor's home address in order to personally serve her with the documents before midnight, but were unable to do so, in that her home telephone number was unlisted; consequently, none of the normal means of finding the auditor's home address were available.

The County, joined by Ehlers and Friends, moved to dismiss the petition for lack of jurisdiction based upon Fidalgo's failure to serve the County within 21 days of the land use decision as required by RCW 36.70C.040(3) and RCW 4.28.080. The trial court granted the motion and Fidalgo appeals.

dismissed the petition, concluding that Fidalgo had neither technically nor substantially complied with the Land Use Act's notice provisions. The court also denied Fidalgo's request to review the denial of its petition under the court's inherent and constitutional powers.

DISCUSSION

I

To commence review of a land use decision under the Land Use Petition Act, Ch. 36.70C RCW, a petitioner must "timely serve" the petition on (among others) the local jurisdiction within 21 days of the issuance of the decision. See RCW 36.70C.040(2)-(3). The last possible date the land use decision in this case could have been considered "issued" was November 7, 1995; accordingly, the latest possible day for timely service under the Act was November 28, 1995. ¹

The method of service on local jurisdictions, including counties, is governed by RCW 4.28.080. See RCW 36.70C.040(5). RCW 4.28.080(1) provides that a summons is "served" on a county when a copy is delivered "to the county auditor or, during the normal office hours, to the deputy auditor." RCW 4.28.080(1). Thus, under the statute, while a county auditor may be served at any time, service on a deputy officer may only be made within "normal office hours."

The Legislature has directed local boards of commissioners to set the hours in which county offices will be "kept open for the transaction of business." RCW 36.16.100. In Skagit County, those hours are from 8:30 a.m. until 4:30 p.m., weekdays. Skagit County Code § 2.04.030.

It is undisputed that Fidalgo never personally served the Skagit County Auditor and did not serve its petition during the hours posted for the auditor's office within the 21-day service period. Fidalgo contends that the trial court's ruling that Fidalgo therefore failed to serve the County within "normal office hours" was error, arguing that "normal office hours" are the hours that any deputy auditor is normally at the auditor's office, not merely the hours that the office is open to the public. The trial court ruled that the word "normal" in combination with the words "office hours" indicates that the phrase means the hours when the office is open for business to the public, and not the additional hours during which work may normally be conducted.

The phrase "normal office hours" is not defined by statute, and as such, should be given its plain and ordinary meaning. Louisiana-Pacific Corp. v. Asarco, Inc., 131 Wash.2d 587, 600, 934 P.2d 685 (1997). Although the parties have not offered any dictionary definitions of the phrase "normal office hours", "office hours" is defined to be the "portion of the day during which offices are usually open for the transaction of business" by Black's Law Dictionary 1083 (6th ed.1990). None of the standard dictionary definitions offered by the parties is appreciably different. ²

We reject Fidalgo's contention that the trial court's construction of the phrase "normal office hours" was too narrow and conflicts with the status of deputy auditors as agents of the county auditor. Fidalgo argues that because the deputies' status as agents of the county auditor does not depend on whether the auditor's office is open or closed, delivery of documents to a deputy auditor after normal office hours is tantamount to personal service upon the county auditor herself, which under the statute may properly be made until midnight on the last possible day for timely service. But the notice statute, in prescribing the method for properly serving a county, does not speak in terms of the agency of the person served; instead it speaks in terms of the hours in which service upon a deputy auditor may properly be made. Accordingly, contrary to Fidalgo's contention, by limiting the time for proper service on deputy auditors to "normal office hours" the Legislature determined that, at least as far as timely service on a county is concerned, a deputy auditor's status as an agent does in fact depend on whether the office is open or closed for business transactions with the public.

The Legislature specifically included the phrase "normal office hours" when it amended the statute in 1987. See Washington Laws 1987 ch. 361. The intent of the amendment was to liberalize service on counties by allowing service on county officials' agents in addition to the officials themselves. ³ By amending the statute, the Legislature also standardized service on counties by restricting service on deputy auditors to normal office hours. Fidalgo's proposed construction of the statutory language would thwart the clear intent of the statutory language, and we decline to...