Zink v. City of Mesa, 24650-7-III.

CourtCourt of Appeals of Washington
Writing for the CourtBrown
Citation152 P.3d 1044,137 Wn. App. 271
PartiesJeff ZINK and Donna Zink, husband and wife, Respondents and Cross-Appellants, v. CITY OF MESA, a Washington Municipal Corporation, Appellant.
Docket NumberNo. 24650-7-III.,24650-7-III.
Decision Date13 February 2007
152 P.3d 1044
137 Wn. App. 271
Jeff ZINK and Donna Zink, husband and wife, Respondents and Cross-Appellants,
CITY OF MESA, a Washington Municipal Corporation, Appellant.
No. 24650-7-III.
Court of Appeals of Washington, Division 3.
February 13, 2007.

[152 P.3d 1045]

Terry M. Tanner Jr., Tanner & Hui, Richland, WA, for Appellant/Cross-Respondent.

Ronald Francis St. Hilaire, Liebler Ivey Connor Berry & St. Hilaire, Kennewick, WA, for Respondent/Cross-Appellant.


¶ 1 This 2003 land use petition act (LUPA), chapter 36.70C RCW, suit arose when the city of Mesa (City) terminated Jeff and Donna Zink's building permit in 2002. The Zinks' lengthy LUPA petition also alleged multiple Open Public Meeting Act (OPMA) violations. Close to hearing in 2005, the City stipulated it wrongfully terminated the Zinks' building permit and improperly conducted one meeting under OPMA. The City appeals the trial court's decision to award the Zinks $30,000 for attorney fees and costs under RCW 4.84.185 for frivolously defending the LUPA suit, contending no attorney fees are available in a LUPA suit. The Zinks' cross-appeal the trial court's failure to separately award attorney fees under OPMA. Under this record, we cannot say the trial court abused its discretion. Accordingly, we affirm.


¶ 2 In April 2000, the City granted a building permit to the Zinks for home repairs. In August 2002, the City notified the Zinks it considered the permit expired for suspension or abandonment. In March 2003, the City's Board of Appeals (Board) affirmed because it found no work had been performed for more than 180 days.

¶ 3 In April 2003, the Zinks filed a petition under LUPA requesting superior court review of the Board's decision. The Zinks alleged in their amended LUPA petition that multiple Board meetings in 2002 and 2003 violated OPMA. Apparently, the Zinks filed a separate public records suit against the City and a visiting judge conducted continuing combined hearings.

¶ 4 On May 13, 2005, after the evidence closed in the public records trial and before further hearings in the LUPA/OPMA case, the parties orally stipulated to resolve the LUPA/OPMA claims. The City agreed it improperly terminated the building permit and improperly conducted a November 13,

152 P.3d 1046

2002 meeting. Attorney fees and costs were specifically left open in the stipulation. In its oral rulings, the superior court likened the building permit revocation to a Pearl Harbor bomb and noted, from the Zinks' view, the City engaged in a "totally unprovoked act of aggression . . . especially in light of the fact that the state electrical inspector . . . had just been there." Report of Proceedings (RP) (May 13, 2005) at 57. The trial court held for the City in the public records case.

¶ 5 On June 22, 2005, the court entered stipulated findings of fact and conclusions of law in the LUPA/OPMA case prepared by the City that reduced the parties' May 13 oral agreements to writing. The fourth finding of fact recites: "The stipulation that the parties have agreed to reduce to writing does not exclude the possibility that fees or costs may need to be awarded to the Petitioners." Clerk's Papers (CP) at 71. The court entered a consistent conclusion of law regarding "an award of [attorney] fees and costs for the prevailing party." Id. The court both found and concluded that neither the City's revocation nor the Board's decision was supported by substantial evidence. Further, the court found the Board's November 13, 2002 meeting violated OPMA.

¶ 6 The Zinks later requested attorney fees and costs. The court found the City's actions in revoking the building permit were groundless and its defense against the Zinks' LUPA petition was frivolous. It awarded costs under RCW 36.70C.110(4) and attorney fees under RCW 4.84.185. After reviewing the billing records, the court found in its discretion a $30,000 award was reasonable for costs and fees. The court declined to separately award OPMA fees. The City appealed. The Zinks cross-appealed.

A. Applicability of RCW 4.84.185

¶ 7 The issue is whether the trial court erred in concluding attorney fees under RCW 4.84.185 may be awarded in a LUPA context. If so, the City contends the City's defense was not frivolous and the award here was, in any event, unreasonable.

¶ 8 The City argues because this is a LUPA case, attorney fees cannot be awarded.1 Schofield v. Spokane County, 96 Wash. App. 581, 980 P.2d 277 (1999). In Schofield, this court considered RCW 36.70C.130 and reasoned because attorney fees were not mentioned, they were precluded. Schofield, 96 Wash.App. at 590, 980 P.2d 277; see also Henderson v. Kittitas County, 124 Wash. App. 747, 758, 100 P.3d 842 (2004) ("LUPA appeal does not give rise to attorney fees"). While the City is correct in its discussion of attorney fees under LUPA, LUPA was not the basis for the court's award. The trial court awarded fees under RCW 4.84.185.

¶ 9 RCW 4.84.185 applies to "any civil action." If a statute's language is unambiguous, we give effect to its plain meaning. In other words, "[i]f a statute is clear on its face, its meaning is to be derived from the language of the statute alone." Kilian v. Atkinson, 147 Wash.2d 16, 20, 50 P.3d 638 (2002) (citing State v. Keller, 143 Wash.2d 267, 276, 19 P.3d 1030 (2001)). Here, even though the Zinks filed a LUPA petition, it is a civil action. The plain language of RCW 4.84.185 allows an award in this civil action.

¶ 10 We review a trial court's attorney fee award under RCW 4.84.185 for an abuse of discretion. Skimming v. Boxer, 119 Wash.App. 748, 754, 82 P.3d 707 (2004).

¶ 11 RCW 4.84.185 requires, and the court made, written findings showing the "defense was frivolous and advanced without reasonable cause." Even so, the City argues the finding is...

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