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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 5,
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DANIEL P. THOMPSON and
THEODORE MISSELWITZ,
                                                  No. 72809-1-1
                   Appellants,
                                                  DIVISION ONE



CITY OF MERCER ISLAND,                            UNPUBLISHED OPINION

                   Respondent,
                                                  FILED: March 14, 2016
ANDERSON ARCHITECTURE,
Applicant, and ON THE ROCK, Owner,

                   Additional Parties
                   Pursuant to RCW
                   36.70C.040(2)(b)-(d).


       Becker, J. — Daniel Thompson and Theodore Misselwitz appeal the trial

court's dismissal of their land use petition for lack of standing. Misselwitz lacks

standing because he failed to exhaust his administrative remedies under Mercer

Island's city code. Thompson lacks standing because he fails to demonstrate

that he was prejudiced by the land use decision. We affirm.

                                        FACTS


       On the Rock, a limited liability company, owned two vacant lots located on

Mercer Island. In 2009, the city of Mercer Island approved a short plat dividing
No. 72809-1-1/2


the vacant lots into two 12,000-square-foot buildable lots. The short plat created

a private access and utility easement across lot one for the benefit of lot two.

The entire area of the easement was characterized as impervious surface, which

is hard surface that prevents water from entering the soil. Mercer Island's city

code limits the maximum impervious surface of a lot to 35 percent of its gross

square foot area. With the easement on lot one, there was that much less of an

allowance of surface remaining for the building footprint, patios, and driveways,

all of which would also count as impervious surface.

       Seeking to avoid this limitation, On the Rock, through Anderson

Architecture, filed an application to amend the 2009 short plat in early July 2013.

The proposal was to alter the existing easement by turning part of it into a

separate tract, called Tract X. Tract X would serve as a private roadway to

access both lots. Tract X would be jointly owned by the owners of both lots.

Under the Mercer Island City Code, Tract X would not count as impervious

surface area against either lot. According to On the Rock, an additional 750

square feet of usable impervious surface area would thereby become available

for the development of lot one.

       A public comment period followed the filing of the application. Daniel

Thompson is a neighbor to the property at issue. Thompson submitted written

comments in opposition to the proposed short plat.

       A Mercer Island city planner approved the preliminary short plat

application on February 3, 2014. Thompson appealed the city planner's decision

to the Mercer Island Planning Commission. A public open record appeal hearing
No. 72809-1-1/3


was held before the planning commission on July 23, 2014. As the only

appellant, Thompson was allotted 25 minutes to speak. Misselwitz, who lives just

north of the property at issue, attended the appeal hearing as a member of the

public. He was allotted 3 minutes to speak. At the end of the hearing, the

planning commission voted to uphold the city planner's approval and deny

Thompson's appeal. On July 28, 2014, the planning commission issued its

written decision.


       On August 14, 2014, Thompson and Misselwitz appealed the planning

commission's decision by filing a land use petition in superior court as authorized

by the Land Use Petition Act, chapter 36.70C RCW. On the Rock and Anderson

Architecture, as owner and applicant on the land use decision, were named as

additional parties.

       The city and On the Rock moved to dismiss the land use petition, arguing

that both Thompson and Misselwitz lacked standing to file a land use petition.

On November 7, 2014, the trial court granted the motion to dismiss. Thompson

and Misselwitz appeal, arguing that they both have standing.

                      TIMELINESS OF MOTIONS TO DISMISS

       On the Rock and the city both filed their motions to dismiss based on lack

of standing on October 23, 2014. They noticed hearing for October 31, 2014.

Appellants contend the motions to dismiss were untimely.

       Appellants argue that, according to a local court rule, motions to dismiss

are subject to the scheduling requirements of CR 56, requiring 28 days' notice.

The local rule states that deadlines for such motions "shall be as set forth in CR
No. 72809-1-1/4


56 and the Order Setting Case Schedule." LCR 56(c)(2). Appellants cannot

evade the plain language of the local rule, which contemplates that deadlines will

be set in the case schedule order.

       The case schedule order issued for this case stated that "motions on

jurisdictional and procedural issues shall comply with Civil Rule 7 and King

County Local Rule 7, except that the minimum notice of hearing requirement

shall be 8 days." Appellants do not persuasively explain why a motion to dismiss

for lack of standing should not be characterized as a motion on a jurisdictional or

procedural issue.

       While neither party has cited case authority exactly on point, we note that

the Supreme Court in another context has referred to standing under the Land

Use Petition Act as "jurisdictional." Knight v. City of Yelm. 173 Wn.2d 325, 336,

267 P.3d 973 (2011). The statute itself calls for motions on "jurisdictional and

procedural issues" to be noted for resolution at the initial hearing, and it provides

that the defense of "lack of standing" also is to be raised by timely motion noted

for the initial hearing—in contrast to a hearing "on the merits," which can occur

later. RCW 36.70C.080(2)-(4). We conclude it is most consistent with the statute

to interpret the local rule as including a motion to dismiss for lack of standing in

the category of a motion on a jurisdictional or procedural issue. Such motions

under the case schedule order require only eight days' notice. On the Rock and

the city complied with the superior court's case schedule order because they filed

their motions to dismiss based on lack of standing exactly eight days before the

scheduled hearing.
No. 72809-1-1/5


       Because the motions to dismiss complied with the superior court's case

schedule order, they were not untimely.

                        MISSELWITZ LACKED STANDING

      The trial court found that Misselwitz lacked standing because he failed to

exhaust his administrative remedies. Appellants assign error to this

determination. Our review is de novo. See, e.g.. City of Burlington v.

Washington State Liguor State Control Board, 187 Wn. App. 853, 861, 351 P3d

875(2015).

      A person who claims to be aggrieved or adversely affected by a land use

decision has standing to bring a land use petition only if he has exhausted his

administrative remedies to the extent required by law. RCW 36.70C.060(2)(d).

"The Legislature sensibly confined the category of non-owners eligible to seek

judicial review of such decisions to those who participated in the administrative

process to the extent allowed. This approach vests greatest discretion in local

decisionmakers, and is thus consistent with the Legislature's policy to accord

deference to local government and allow only limited judicial interference." Ward

v. Bd. of Skagit County Comm'rs, 86 Wn. App. 266, 271-72, 936 P.2d 42 (1997).

       The Mercer Island City Code outlines the administrative approval process

for a preliminary short plat application. Upon receiving the application, the city

issues a public notice of the application. The notice must include a statement

that only people who submit written comments will be parties of record and only

parties of record will receive notice of the decision and have the right to appeal.

MICC 19.15.020(E)(2)(e). After the public comment period, the city issues its
No. 72809-1-1/6


decision. Any party of record may appeal the decision to the Mercer Island

Planning Commission by filing a letter of appeal with the city clerk. MICC

19.15.020(J)(1), .010(E). The city issues a public notice of the appeal. MICC

19.15.020(J)(4). An open record appeal hearing is then held before the planning

commission, which issues the final administrative decision. MICC

19.15.020(J)(5)(b), .010(E). The planning commission's decision may be

appealed "by a party of record with standing to file a land use petition in King

County Superior Court." MICC 19.15.020(J)(5)(g).

       Misselwitz did not submit written comments in response to the city's public

notice of application. He did not file a letter of appeal to the planning

commission. He did, however, attend and speak at the open record appeal

hearing that occurred on July 23, 2014, before the planning commission. This

participation did not confer standing to appeal the planning commission's

decision to superior court because he spoke only as a member of the public, not

as an appellant. Because Misselwitz did not use the administrative process to

protest the application, he failed to exhaust administrative remedies.

       Appellants argue that Misselwitz nevertheless has standing because of

the wording of the public notice appeal form sent to him and to other neighboring

property owners by the city. The form, "Public Notice of Open Record Appeal

Hearing," states: "Only those persons who submit written comments or testify at

the open record hearing will be parties of record; and only parties of record will

receive a notice of the decision and have the right to appeal." Appellants argue

that Misselwitz, by virtue of this form, became a party of record and acquired the
No. 72809-1-1/7



right to appeal to superior court because he testified at the July 23 open record

hearing before the planning commission. The city concedes that the form

language is mistaken. Under the city code, one becomes a party of record by

submitting written comments on the initial application, and only a party of record

has the right to appeal the administrative staff approval to the planning

commission. The notice sent to Misselwitz incorrectly made it appear that he

would become a party of record simply by speaking before the planning

commission. The incorrect notice, however, does not override the provisions of

the city code for purposes of determining whether Misselwitz exhausted his

remedies. Misselwitz's opportunity to become a party of record occurred well

before he received the public notice of open record appeal hearing. Unlike

Thompson, Misselwitz did not submit written comments about the application and

did not appeal the decision to the planning commission. These are the steps in

the administrative process that he failed to complete.

      Appellants further argue that Misselwitz did not need to exhaust

administrative remedies to have standing on his own because he was in effect

joining Thompson, who did become a party of record with the right to appeal to

the planning commission. This argument contradicts the plain statutory language

requiring exhaustion of remedies, which is written in the singular person: "A

person is aggrieved or adversely affected . . . when ... the petitioner has

exhausted his or her administrative remedies to the extent required by law."

RCW 36.70C.060(2).
No. 72809-1-1/8


       Appellants rely on Jones v. The Town of Hunts Point, 166 Wn. App. 452,

456, 272 P.3d 853 (2011). review denied. 174 Wn.2d 1016 (2012). That case is

not about exhaustion of remedies. It is not helpful in deciding whether Misselwitz

has standing.

       We conclude Misselwitz lacked standing to file a land use petition in

superior court because he failed to exhaust his administrative remedies.

                        THOMPSON LACKED STANDING


       The trial court found that Thompson lacked standing because he did not

establish that he was personally prejudiced by the land use decision. Appellants

assign error to this determination.

       An allegedly aggrieved person has standing to file a land use petition only

if he shows that the land use decision has prejudiced him, or is likely to. RCW

36.70C.060(2)(a). To satisfy the prejudice requirement, a petitioner must show

that he would suffer injury in fact as a result of the land use decision. Chelan

County v. Nvkreim, 146 Wn.2d 904, 934, 52 P3d 1 (2002). To show an injury in

fact, the petitioner must allege a "'specific and perceptible'" harm. Knight, 173

Wn.2d at 341, quoting Suguamish Indian Tribe v. Kitsap County, 92 Wn. App.

816, 829, 965 P.2d 636 (1998). Ifthe petitioner alleges a threatened rather than

an existing injury, he "'must also show that the injury will be immediate, concrete

and specific; a conjectural or hypothetical injury will not confer standing.'"

Suguamish, 92 Wn. App. at 829, quoting Harris v. Pierce County. 84 Wn. App.

222, 231, 928 P.2d 1111 (1996) (internal quotation marks omitted).




                                           8
No. 72809-1-1/9


          In Suguamish, there was evidence that Indian tribal members, one of

whom lived 150 feet from the proposed project and another whose property

would be surrounded on three sides by the proposed project, would be affected

by the large predicted increase in traffic. This evidence was held sufficient to

establish injury in fact. Suguamish, 92 Wn. App. at 831. In another case, a

petitioner owned land 1,300 feet away from the proposed subdivisions and

alleged that the development's use of an already-overdrawn aquifer would

adversely affect her ability to exercise her senior water rights. Knight, 173 Wn.2d

at 342-43. These allegations were held sufficient to establish injury in fact.

Knight. 173 Wn.2d at 343. In another case, a petitioner testified that his 60-acre

property adjacent to the proposed project would be damaged by storm water

runoff from the proposed project site. This too was held sufficient to establish

injury in fact. Anderson v. Pierce County. 86 Wn. App. 290, 300, 936 P.2d 432

(1997).

       In contrast, in Nvkreim, four married couples who owned property

upstream from the property at issue alleged that their sole interest in the matter

was to preserve zoning protections in their district. Unaccompanied by other

allegations alleging specific injuries to petitioners or their properties, this interest

was too abstract to confer standing. Nvkreim. 146 Wn.2d at 935. To have

standing, a petitioner's interest "must be more than simply the abstract interest of

the general public in having others comply with the law." Nvkreim, 146 Wn.2d at

935.
No. 72809-1-1/10


       Thompson believes the creation of Tract X violates the city's code and

comprehensive plan for land use, as well as Washington law. His land use

petition identifies 11 legal errors surrounding the creation and approval of Tract

X. But it does not allege any specific injury to Thompson or his property.

Thompson's sole interest is trying to enforce zoning protections in his

neighborhood. His abstract interest in having others comply with the law is not

enough to confer standing. See Nvkreim, 146 Wn.2d at 935.

       Thompson argues that this court must assume his allegations of legal

error are true and "presume" harm to adjacent property. He argues that the

proposed short plat application violates principles in the Mercer Island City Code

that promote "air, light, open space, adequate roads, sufficient area to subdivide,

consistent bulk and scale, prevention of overcrowding of land, all of which

provide attractive neighborhoods and affect the value of surrounding property."

He predicts that the "ultimate result" of this proposed short plat will be houses

that are inconsistent with the zone and neighborhood, overcrowd land, create a

negative effect on open space, air, light, comfort and aesthetics, and diminish the

value of surrounding properties like his own.

       Thompson does not cite authority allowing a court to presume harm.

Granting that the creation of Tract X will increase the amount of impervious

surface area available for development on lot one, Thompson has failed to show

any "'immediate, concrete, and specific'" injury. Suguamish, 92 Wn. App. at 829,

quoting Harris, 84 Wn. App. at 231 (internal quotation marks omitted). Because




                                         10
No. 72809-1-1/11


Thompson failed to show that the creation of Tract X prejudiced him, or is likely

to, he lacked standing to bring a land use petition.

                          MOTION FOR SUBSTITUTION

       On the Rock executed a statutory warranty deed conveying the property at

issue to GIB Development LLC on August 12, 2014, two days before appellants

filed their land use petition in superior court. The deed was recorded on August

19,2014.

       On June 16, 2015, On the Rock filed a motion to substitute GIB

Development as the new owner of the property at issue. In support of the

motion, On the Rock's attorney stated that he did not become aware that the

property at issue had been conveyed to GIB Development until June 1, 2015,

after he received a letter from an attorney representing appellant Misselwitz in a

separate matter. Both limited liability companies are under the effective

management authority of the same person, Scott Gibson. Gibson's attached

affidavit stated that his tax advisors told him that the property at issue was more

appropriately held by GIB Development because he planned to develop it.

Gibson further stated that the failure to substitute GIB Development as the new

owner was purely an oversight.

       Appellants opposed On the Rock's motion to substitute. On June 16,

2015, they filed a motion asking this court to vacate the trial court's order of

dismissal and remand. In June and July 2015, appellants filed additional motions

to supplement the record with further evidence supporting their request to vacate

and remand, to strike On the Rock's motion to substitute for lack of standing, to



                                          11
No. 72809-1-1/12


compel On the Rock to submit further evidence regarding why it transferred the

property at issue, and for judicial estoppel and attorney fees ifthis court vacates

and remands.


       On the Rock's motion to substitute is proper under the plain language of

RAP 3.2(a): "The appellate court will substitute parties to a review when it

appears . .. that the interest of a party in the subject matter of the review has

been transferred." The property at issue has been transferred from On the Rock

to GIB Development.

       On the Rock further requests that the substitution relate back to the time

the appellants' land use petition was filed. RAP 3.2 neither expressly permits nor

prevents a substitution to relate back to the time of filing. Miller v. Campbell. 164

Wn.2d 529, 536-37, 192 P.3d 352 (2008). In Miller, the court allowed the

substitution to relate back to the time of original filing because the party opposing

substitution was not prejudiced. Miller, 164 Wn.2d at 538. Likewise here,

appellants will not be prejudiced if GIB Development is substituted for On the

Rock. GIB Development acknowledges that it will be bound by this court's

decision on the merits. The identity of the limited liability company that holds the

property is irrelevant to the basis on which the appellants opposed the land use

decision—legal errors regarding the creation and approval of Tract X—and to the

basis on which their land use petition was denied—lack of standing.

      Appellants argue that substitution or joinder is available only at the trial

court under CR 17(a) or CR 19 and that it requires consideration of inexcusable

neglect under CR 15(c). In support of this proposition, appellants cite Stella



                                         12
No. 72809-1-1/13


Sales. Inc. v. Johnson. 97Wn.App. 11, 17-20, 985 P.2d391. review denied. 139

Wn.2d 1012 (1999). But Stella Sales addressed substitution in the trial court; it

does not discuss substitution on appeal under RAP 3.2.

       We grant On the Rock's motion to substitute GIB Development. That

substitution will relate back to the time the appellants' land use petition was filed.

We deny the appellants' motion to vacate the order of dismissal. The remaining

motions filed by appellants are also denied.

       Affirmed.



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WE CONCUR:




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