                                                                                             FILED
                                                                                       COURT OF APPEALS


                                                                                      2013 APR 30   AM 8:34
      IN THE COURT OF APPEALS OF THE STATE OF
                                                                           WASHINGNGIASPiIq
                                                                                  C                     TON

                                             DIVISION II                              S
                                                                                             I
NORTHSHORE           INVESTORS„           LLC,     a                 No. 42490 8 II
                                                                               - -
Washington limited liability company; and
NORTH SHORE GOLF ASSOCIATES, INC.,
a Washington corporation; and SAVE NE
TACOMA,          a      Washington        non -profit
corporation, et al.,

                                Appellants,
                                                                  PUBLISHED OPINION
       r




CITY OF TACOMA, a Washington municipal
corporation,



       PENOYAR, J. —The        parties and - mici ask us to address important legal issues related to
                                           a

the city of Tacoma's City)denial of a significant rezone request. But because this lawsuit was
                      (
not served on the necessary parties within the strict statutory time period, we reverse and remand
for dismissal.


       Northshore Investors ( Northshore) submitted an application to the City for permits to

redevelop   North    Shore   Golf Associates' ( the     Owners) golf   course.   In the application,

Northshore requested approval of the development's preliminary plat, approval of a rezone

modification, site plan approval, multiple variances and reductions to development standards,
and   wetland stream
              /          approvals   or   exemptions.    Save NE Tacoma ( SNET) opposed the

application. A Tacoma Hearing Examiner (Examiner) recommended that the Tacoma City

Council (Council) deny the      rezone    modification request.   Consequently, the Examiner denied

Northshore's other requests. Northshore filed a Land Use Petition Act (LUPA)'petition and


Ch.36. 0C
     7           RCW.
42490 8 II
      - -



appealed the Examiner's recommendation on the rezone modification application to the Council.
The parties agreed that Northshore could file and serve an amended LUPA petition within 21
days of the Council's decision     in order to   address that decision.     The Council denied


Northshore's rezone modification request at a hearing. Northshore then filed an amended LUPA

petition and, 23 days after the Council's hearing, served the City and SNET with that petition..
The City and SNET filed motions to dismiss the amended LUPA petition for untimely service,

but the superior court denied the motions.

         The City and SNET now appeal the superior court's denial of their motions to dismiss.

The City and SNET argue that Northshore failed to meet the statutory requirement to serve them

within 21 days of the date the Council issued its final land use decision, thus depriving the

superior court ofjurisdiction to hear the petition. We hold that the 21 day period began to run on
                                                                        -
the date of the Council's oral vote because this vote, not the subsequent notice of appeal results

the City Clerk (Clerk)mailed, was the final decision and was entered into the public record in
several formats. Accordingly, we reverse the superior court's denial of the motions and remand

for dismissal of the amended and original LUPA petitions.
                                             FACTS.


I.       BACKGROUND


         Northshore Country Club Estates (Estates),located in northeast Tacoma, is a planned

residential district ( RD)consisting of residential areas and an 18 hole golf course. It is located
                     P                                              -

within an " 2 PRD"one -family-
          R -                dwelling and PRD district. Clerk's Papers (CP)at 25.

         The golf course is privately owned and occupies approximately 116 acres of the 338 acre
                                                                                            -
PRD.     The golf course's ownership is separate from ownership of the surrounding residential
areas.


                                                 2
42490 8 II
      - -



       In 1981, the R 2 PRD rezoning for the area was approved, along with general approval of
                      -

divisions 2, 3, and 4' of Estates, with specific preliminary plat approval of division 2A. Since

then, divisions 2, 3, and 4 have been finally platted and developed around and within the golf
course.



       At the time of the 1981 rezone, the Owners and the developer of Estates had an

Agreement Concerning North Shore Golf Course." CP             at 27.   The agreement allowed the

developer to include the golf course as open space, which was necessary to obtain the R2 PRD
                                                                                       -
zoning for residential development of Estates.

          The 1981 Examiner recommendations, adopted by the Council, called for approval of the

rezone and of the preliminary plat of division 2A subject to conditions, including the following:

       The applicant shall submit a legal agreement, which is binding upon all parties
       and which may be enforced by the City of Tacoma. It should provide that the
       property in question will maintain and always have the use of the adjacent golf
       course for its open space and density requirement which has been relied upon by
       the applicant in securing approval of this request....  However, the Examiner
          believes.that there must be more certainty provided to insure the golf course use,
          which was relied upon to gain the density for this request, is clearly tied to the
          applicant's proposed use in perpetuity.

Administrative Record (AR)at 47 (emphasis added). The restriction of the open space use was

implemented by an "Open Space Taxation Agreement"and a "Concomitant Zoning Agreement."
AR at 49, 57. The Open Space Taxation Agreement provides, The use of such land shall be
                                                          "
restricted solely to golf course and open space use. No use of such land other than as_specifically

provided hereunder shall be authorized or allowed without the express consent of the City of
Tacoma."AR at 49. The agreement runs with the land and is binding on the heirs, successors,
and   assigns of the parties.     The Concomitant Zoning Agreement requires adhering to the

approved site plan that includes the golf course.

                                                    3
42490 8 II
      - -



         On January 29, 2007, Northshore submitted an application for permits to redevelop the

golf   course.    The development, named " The Point at Northshore," would comprise. 860

residential units and multiple tracts containing open space, slopes, private access roads, utilities,

and recreation    areas.   CP at 25. Northshore sought preliminary plat approval of The Point at

Northshore, rezone modification approval, site plan approval, multiple variances and reductions .

to development standards, and wetland/ tream exemptions or approvals.
                                     s

         The   application proposed    to   use   the   golf   course   grounds     for   housing. The preliminary

plat request was "a request to subdivide the Northshore Golf Course site into 860 lots."CP at

23. The site plan approval request was "a request for site plan approval for development of the

golf   course,   accompanying   the   rezone      request." CP        at 23.   The rezone modification request

asked "to modify an existing condition of approval placed on the golf course site in connection

with Northshore Country Club Estates PRD in a previous rezone which occurred in 1981 and

established the PRD designation for the site." . at 23.
                                             CP

II.      PROCEDURAL BACKGROUND


         In October   2009, the Examiner conducted               a   hearing   on   Northshore's   application.   On


January 7, 2010, the Examiner recommended that the Council deny the rezone modification.

The Examiner concluded:

         The inability to approve the Rezone Modification ... makes approval of the Site
         Plan impossible.      Because the rezone is inconsistent with the district
         establishment statement, it is inconsistent with the intent of the PRD district.
         TMC [ Tacoma Municipal Code] 13. 6. Similarly the failure to
                                             2).
                                             140(    B)(
                                                     0
         demonstrate sufficient changes in condition removes any basis for modifying or


2
 It is unclear whether the application was submitted by only Northshore or by both Northshore
and the Owners. Although the Examiner's decision designates Northshore as the applicant, a
declaratory judgment from 2009 refers to applications submitted by the Owners and Northshore
to redevelop the golf course.
                                                          4
    42490 8 II
          - -



            removing the [Concomitant Zoning Agreement] condition requiring adherence to
            the original Site Plan. See TMC 13. 40(
                                            d).
                                            B)(  3)(
                                                 1

    CP at 43. Consequently, the Examiner also denied Northshore's application for preliminary plat

    and site plan approval. Based on the denial of the application for preliminary plat and site plan

    approval, the Examiner declined to consider Northshore's application for variancesreductions,
                                                                                       /
    wetland stream assessments, and wetland stream exemptions.
            /                               /

            Northshore and the Owners appealed the Examiner's recommendation to the Council on

    January 21, 2010. The Clerk mailed a document dated January 22 and titled " otice of Filing of
                                                                              N
    an   Appeal" to   all   parties.   CP at 549.   A copy of chapter 1.0 TMC, Appeals to the City
                                                                       7       "

    Council,"
            was attached to the notice. CP at 553.

            On January 28, Northshore and the Owners timely filed and served a LUPA petition

    challenging the Examiner's decisions to deny the applications for preliminary plat and site plan

    approval and to decline to address their related applications for variancesreductions,
                                                                                /
    wetland stream assessments, and wetland stream exemptions. SNET also filed a LUPA petition
            /                               /
1
    challenging various aspects of the Examiner's decision. The parties stipulated to consolidation

    of the LUPA appeals and agreed to stay the proceedings until the Council issued its final
    decision on the rezone modification appeal.

            Northshore and the Owners were required to appeal the Examiner's recommendation on

    the application for a rezone modification to the Council before seeking judicial review.
    Accordingly, the parties stipulated that they could file amended LUPA petitions consistent with
    RCW 36. 0C. and .070 to address the Council's decision on the rezone modification appeal
        040
          7

    within 21 days of the Council issuing its final decision. In so stipulating, the parties noted that



                                                         5
42490 8 II
      - =




i]the City Council issue[d] decision on April 13, 2010, the related appeal deadline would be
 f                         a

on or about May 4,2010." at 45.
                        CP

          On    April 13, the Council       heard the   appeal. Northshore's attorney was present at the

hearing    and       argued   on   behalf of Northshore and the Owners. The Owners' realtor, who also


served    as   its   representative, attended   the   meeting   as   well.   The hearing was broadcast live on

television and streamed live on the City's official website. At the hearing, a motion was made

and seconded to concur in the Examiner's findings, conclusions, and recommendation to deny

the appeal. The Council adopted the motion by a roll call vote of 8 ayes, 0 nays, and 1 recused.

Both Northshore's attorney and the Owners' realtor were present when the Council voted to

reject the rezone modification application. Directly after the meeting, a video recording of the

hearing was posted on the City's website. The following day, a DVD copy of the video was

delivered to the Tacoma Public Library, and the voting record and a closed-
                                                                          caption transcript of

the hearing were made available on the City's website.

          The Clerk then..
                        mailed a "Notice of Appeal Results" dated April 15 to the parties. CP at

82. The notice reads:


                       Please be advised that on Tuesday, April 13, 2010, the Tacoma City
          Council heard the      appeal of Schwabe, Williamson & Wyatt, P. . representing the
                                                                         C
          Appellants Northshore Investors, LLC and North Shore Golf Associates, Inc. on
          the recommendation of the Hearing Examiner regarding the request to modify an
          existing condition of approval placed on the golf course site in connection with
          Northshore Country Club Estates Planned Residential Development District in a
          previous rezone which occurred in 1981 and established the PRD designation for
          the site....


                       At that time the City Council moved to concur with the Findings,
          Conclusions and Recommendation of the Hearing Examiner and denied the
          appeal.

CP at 82. The Clerk           signed   the document.
42490 8 II
      - -



         On May 3, 20 days after the Council heard the appeal, Northshore and the Owners filed

an amended LUPA petition in the Pierce County Superior Court, incorporating their appeal of

the Council's decision.       Northshore served the City and SNET on May 6, 23 days after the

Council heard the appeal.

         On May 14, the City moved to dismiss the amended LUPA petition for lack of

jurisdiction based on late service. Specifically, the City asserted that Northshore and the Owners

had failed to serve the amended LUPA petition on the City within 21 days of the issuance of the

land   use   decision.   The City further asserted that "because dismissal of the Amended Petition

will render it impossible for this Court to provide Petitioners the relief they seek in their original

LUPA Petition, Tacoma requests that the original LUPA Petition also be dismissed."CP at 104-

05.    SNET also moved to dismiss the amended and original LUPA petitions on this basis and

joined, the City's       motion to dismiss.    The superior court denied the motions to dismiss,

concluding:

         T] e written decision is a written codification [of an] oral decision. Given how
            h
         frequently the City and County Council backtrack on some of their oral decisions,
         obviously, sending—   reducing it to writing and sending it out, particularly when
         the Clerk, the City Clerk, is charged with doing that, indicates that the final
         decision is the written    one.   Once it' mailed out, there's three days' time for
                                                  s
         mailing; and then you have 21 days to file a LUPA after that. It was timely filed.

Report of Proceeding ( P)June 18, 2010)at 20.
                     R    (

         The superior court later denied the LUPA petitions, concluding that none of the

petitioning parties had met its burden under LUPA standards. Northshore, the City, and SNET

appeal.




                                                    7
42490 8 II
      - -



                                           ANALYSIS


I.      AMENDED LUPA PETITION


        In their cross appeals, the City and SNET contend that the superior court erred by

denying their motions to dismiss the amended LUPA petition for Northshore's failure to timely

serve them within 21 days of the Council's issuance of its land use decision. Specifically, the

City and SNET contend that the Council made its land use decision when it adopted by voice

vote the motion to concur in the Examiner's findings, conclusions, and recommendation. The

City and SNET contend that the oral decision was issued when it was entered into the public
record on April 13 or, at the latest, when it was entered into the public record again on April 14.

In response, Northshore contends that the Council issued its decision three days after the Clerk

mailed the notice of appeal results. Northshore contends that case law, the TMC, and LUPA

support its contention that the notice of appeal results was a written decision.

         We hold that the TMC does not require the Council to issue written decisions; that the

very   language of the notice of appeal results   shows that it is not      written decision "; and that,
                                                                          a "




under RCW 36. 0C.the Council issued its decision on April 13. Because Northshore
          c),
          040(
             4)(
             7

did not serve the City. and SNET within 21 days of the Council's issuance of its land use

decision, the superior court erred by denying the City's and SNET's motions to dismiss.
         A.     Standard of Review


          When conducting judicial review under LUPA, we sit in the same position as the

superior court and give no deference to its findings." Vogel v. City ofRichland, 161 Wn. App.

770, 777, 255 P. d 805 (2011) citing Griffin v. Thurston County Bd. of Health, 165 Wn. d 50,
               3               (                                                     2
                            Whether
54 55, 196 P. d 141 ( 2008)).
   -        3                               a   LUPA   petition   is   timely   turns   on a   construction of
42490 8 II
      - -



when a land use decision is issued under the meaning of LUPA and statutory construction is a

question of law we review de novo. Vogel, 161 Wri. App at 777.

       B.      Service


       LUPA's stated purpose is ` timely     judicial   review. "' Habitat   Watch v. Skagit County,

155 Wn. d 397, 406, 120 P. d 56 (2005) quoting RCW 36. 0C. Under LUPA, a]
      2                  3             (           010).
                                                     7                 "[ land

use petition is barred, and the court may not grant review, unless the petition is timely filed with
the court and timely served ...."   RCW 36. 0C.emphasis added).
                                        040(
                                           2) (
                                           7

        A LUPA petition is timely if it is filed and served within 21 days of the issuance of the

land use decision. RCW 36. 0C. A land use decision issues on one of three dates:
                       040(
                          3).
                          7

        a)Three days after a written decision is mailed by the local jurisdiction or, if not
        mailed, the date on which the local jurisdiction provides notice that a written
        decision is publicly available;
        b)If the land use decision is made by ordinance or resolution by a legislative
        body sitting in a quasi-udicial capacity, the date the body passes the ordinance or
                               j
        resolution; or
        c) neither (a) ( ) this subsection applies, the date the decision is entered
          If          nor b of
        into the public record.

RCW 36. 0C.
    a)
    040(
       4)(
       7  c).-                            --(

        The trial court had no authority to hear this case if service was untimely. LUPA's

 filing and service requirements are jurisdictional. See RCW 36. 0C.Lakeside
                                                             040(
                                                                2);
                                                                7

 Indus. v. Thurston County, 119 Wn. App. 886, 900, 83 P. d 433 (2004).Thus, a land
                                                       3

 use decision becomes unreviewable if not appealed to the superior court within LUPA's

 specified timeline. Habitat Watch, 155 Wn. d at 407.
                                          2

        Because LUPA contains explicit directives for filing and service, the doctrine of

substantial compliance does not apply to .RCW 36. 0C. Overhulse Neighborhood Ass'n v.
                                              040.
                                                7

Thurston County.,94 Wn. App. 593, 599, 972 P. d 470 (1999). Our Supreme Court has noted
                                            2

                                                 9
42490 8 II
      - -




that "[
     r] strict compliance with the statutory bar against untimely petitions promotes the
        equiring

finality of local land use decisions."Knight v. City of Yelm, 173 Wn. d 325, 338, 267 P. d 973
                                                                    2                  3

2011).

                1.    The Council Issued an Oral Decision


       The parties here do not contest the applicable LUPA filing and service requirements.

Rather, the parties diverge on when the land use decision Northshore challenges was "issued"

under RCW 36. 0C. the applicable subsection of this statute determines the deadline
          040(
             4);
             7

Northshore had for serving the City and SNET. Northshore contends that subsection (a)applies
to this case because the notice of appeal results constituted a written decision. Thus, service was

timely because the land use decision did not issue until three days after the notice was mailed.

The City and SNET contend that subsection (c)applies because the Council made only an oral
decision.    Thus, service was untimely because the land use decision issued when the oral

decision was entered into the public record, at the latest, one day after the Council made the
decision.


       The Clerk mailed a notice of appeal results dated April 15 to the parties. Northshore .

contends that this noticeand not the Council's oral vote was the final land use decision
                         -                               -

because the TMC requires a written decision. This assertion ignores the plain language of the

notice itself, which states, Please be advised that on Tuesday, April 13, 2010, the Tacoma City
                             "

Council heard the appeal of [ orthshore] on the recommendation of the Hearing Examiner ... .
                            N

At that time, the City Council moved to concur with the Findings, Conclusions and
Recommendation of the Hearing Examiner and denied the appeal." CP at 82 (emphasis added).

And, the mailed document was labeled as a "Notice of Appeal Results,"indicating that the
document was a notice, not a decision. CP at 82.
                                                 X17
42490 8 II
      - -



        Further, the notice of appeal results refers to the Council's decision in the past tense, and

the notice was written after the Council had made its decision, supporting the City's claim that

the Council issued the land use decision on April 13, 2010. We recognize, however, the contrast

presented by Hale v. Island County,88 Wn. App. 764, 946 P. d 1192 (1997).In Hale, the Board
                                                         2

of Island County Commissioners (BICC)voted at a February 5, 1996, public hearing to adopt the

Planning Commission's recommendation.          88 Wn.     App. at 767. On February 20, the county

mailed a copy of the written decision to all parties of record. Hale, 88 Wn. App. at 767. The

Hale court held that subsection (a) RCW 36. 00.applied and that the decision did not
                                   of   040(
                                           4)
                                           7

issue until three days after the mailing of the written decision. 88 Wn. App. at 768. Responding

to the argument that the mailed decision was merely a document memorializing the BICC's

earlier vote at the public hearing, the court held that

         the writing is the decision itself. Nothing in the [county code] mandates that the
         decision be made in writing. But here a proposed written decision was prepared
         in advance and   presented   to the BICC for     approval. When the BICC voted to
         approve, it signed the document and had it attested. It states in the present tense
         that the "use described in this permit shall be undertaken[.]" document was
                                                                     The
         not written after the decision had been made. When Island County mailed a copy,
         its cover letter referred to it as a "decision document" and we agree with that
         characterization.


Hale, 88 Wn. App. at 769 (alteration in original) .

         Northshore argues that Hale supports its argument that the notice of appeal results was a

written decision, but Northshore fails to address the plain distinctions between Hale and the case

at hand. Here, the notice was written after the decision was made. Most importantly, the notice

underscores that the City Council had already made its decision: " lease be advised that on
                                                                 P

3
    The Hale court noted that "without a local or statutory requirement that a written decision be
mailed within a specific time, the Land Use Petition Act lends itself to some uncertainty. But
any change to the statute's plain.language must come from the Legislature." 88 Wn. App. at
769.
                                                   11
42490 8 II
      - -




Tuesday, April 13, 2010, the Tacoma City Council heard [Northshore's]
                                                                    appeal ....             At that


time the City Council moved to concur with the Findings, Conclusions and Recommendation of

the Hearing Examiner and denied the appeal."CP at 82 (emphasis added).

       Here, the facts " arallel those our Supreme Court clearly contemplated in Habitat Watch.
                       p

There, the court elaborated on the likely meaning of subsection (c)of RCW 36. 0C.
                                                                          040(
                                                                             4),
                                                                             7

noting that it may apply when a decision is neither written nor made by ordinance or resolution;

in such a case, the decision issues on the date it is entered into the public record. Habitat Watch,

155 Wn. d at 408 n. . The court noted that subsection (c)
      2           5                                      would include decisions made orally

at city council meetings and that a decision in such a case would issue "when the minutes from

the meeting are made open to the public or the decision is otherwise memorialized such that it is

publicly   accessible." Habitat Watch, 155 Wn. d at 409 n. .
                                             2           5          This reading mirrors the plain

language of LUPA, which provides that a land use decision is "a final determination by a local

jurisdiction's body or officer with the highest level of authority to make the determination,

including those with authority to hear appeals."RCW 36. 0C.
                                                    020(
                                                       2).
                                                       7

       Northshore contends that the Habitat Watch court " assed on the opportunity to apply the
                                                        p

21 day time
   -           bar from the date the decision   was ` entered   into the public record, "' choosing

instead to analyze issuance from when the local jurisdiction provided a written decision.

Response     Br. of   Appellant ( Northshore) at 17 ( citing Habitat Watch, 155 Wn. d at 409).
                                                                                  2

Northshore argues that this approach disfavors applying subsection ( c) when there is

communication of a writing."Response Br. of Appellant ( Northshore) at 18. But the Habitat

Watch Court expressly noted that it was unclear from the record and briefing when the
challenged. decisionstwo permit extensions were issued within the meaning of RCW
                     —                     —

040(
36. 0C. nothing in the record showed that these decisions were mailed to the parties,
   4):
   7
                                                 12
42490 8 II
      - -



were otherwise made public or were passed by ordinance or resolution; and it was also "unclear

if and when the decisions   were `entered'   into the   public   record." 155 Wn. d at 408. But the
                                                                                2


court did "not determine when the decisions were issued because even under the last possible

date, Habitat Watch failed to file a LUPA petition within 21 days."Habitat Watch, 155 Wn. d
                                                                                        2

at 409 n. .
        6


        Northshore relies on several distinguishable cases to support its contention that the notice

the Clerk sent here constituted   a   written decision.   Northshore cites King's Way Foursquare

Church v. Clallam County for the proposition that the date.of a decision is generally the date on

which the decision is reduced to writing. 128 Wn. App. 687, 691 95,116 P. d 1060 (2005).But
                                                                -       3

King's Way dealt with subsection (b) RCW 36. 0C.which pertains to ordinances and
                                    of   040(
                                            4),
                                            7

resolutions. In King's Way, the Clallam County Board of Commissioners "orally indicated that it

would affirm the hearing examiner" and, then, two weeks later, adopted and signed a resolution

in which it affirmed the hearing examiner. 128 W. App at 689. In reaching the conclusion that
                                                n.

the county board issued its decision when it entered the written resolution and not when it orally

indicated its intent to affirm,the court in King's Way Court noted that "[ n judicial proceedings,
                                                                        i]

the date of a decision is generally the date on which the decision is reduced to writing, as

opposed to an earlier date on which it may be orally announced. In quasi-udicial proceedings
                                                                        j
such   as   these, the rule is the same." 128 Wn. App.      at 691 92 (
                                                                   -  footnotes   omitted). Quoting

Kilpatrick v. City of Anacortes, 84 Wn. App. 327, 331, 927 P. d 1145 ( 1996),the court
                                                            2

noted:I] [ ] quasi-udicial proceeding, `[
      "[n a       j                    an] oral vote will not be final if further action is

necessary to complete itfor example, when a vote to approve a variance is followed by a
                         —

written order setting forth detailed conditions."' s Way, 128 Wn. App. at 692 n. . Here, on
                                                 King'                         6

the other hand, Northshore does not contend that further action was necessary to complete the
                                                  13
42490 8 II
      - -



City Council's oral vote; rather, Northshore asserts that because the Council mailed "` written
                                                                                     a
decision' to the   parties   the   day after the hearing,"subsection (a)applies. Response Br. of

Appellant ( orthshore)at 11.
          N

       Northshore also unpersuasively argues that denial of the motions to dismiss is consistent

with our decision in Overhulse. In Overhulse, we affirmed the superior court's dismissal of a

LUPA petition for lack of jurisdiction because of improper service. 94 Wn. App at 596, 599..
Northshore is correct that in Overhulse we noted that the challenged decision issued on January

10, three days after the Board of Commissioners mailed its decision on January 7, having
affirmed the   hearing   examiner's decision      on   January   5.   94 Wn. App at 596, 596 n. .It was
                                                                                              l

undisputed in Overhulse that a written decision had been issued; thus, we did not analyze
whether subsection (a)or subsection (c) RCW
                                       of                    36. 0C. applied. Overhulse is thus
                                                             040(
                                                                4)
                                                                7

inapposite.

       Finally, Northshore cites Vogel for support There, the court noted that "until [an oral

land use decision's]
                   scope and terms have been memorialized in some tangible, accessible way,

even the most diligent citizen cannot know whether the decision is objectionable or, if it is,
whether there is   a   viable basis for   a   challenge." Vogel,      161 Wn. App. at 780. But the Vogel

court was responding to the argument that city staff's memoranda to city council members

alerting them of a decision to move forward with authorization of a development permit
constituted a final land use decision that triggered LUPA's statute of limitations. 161 Wn. App.

at 775, 779 80. The Vogel court framed the issue in that case as "whether a land use decision
            -

made on the basis of an oral request, to which there is an oral response, is `issued' under the

LUPA as soon as there is some reference to it in a public meeting or public record." 161 Wn.

App. at 774. The court held that "ssuance"under LUPA "equire[s] than a mere reference;
                                 i                   r        more
                                                        14
42490 8 II
      - -



there must be a memorialization sufficient to identify the scope and terms of the decision." 161

Wn. App. at 774.

            The Vogel court determined that "there is literally nothing in our record that purports to

tell   us   exactly what      the   city   staff authorized [ the   developer] to   do." 161   Wn. App. at 780.

Noting that the memoranda from the staff only discussed the proposal in non final terms, the
                                                                             -
court found that the memoranda did not constitute a final land use decision under LUPA; the

memoranda did not " urport to memorialize the terms of the decision, even summarily." Vogel,
                  p

161 Wn. App. at 779. Here, there was not merely a reference to a decision being made about a

permit      with   an   undefined scope.        Instead, at the April 13 hearing, the Council voted to deny

Northshore's appeal. There was no ambiguity about the Council's decision.
            Northshore's claim that the Council issued a written decision fails. The notice of appeal

results was not a written decision. It is labeled as a notice, was prepared after the hearing, and

speaks of the Council's decision in the past tense. Further, no members of the Council signed
the document. The notice was signed by the Clerk with no indication that it was written and sent
at   the request of      or   under the     authority of   the Council. Because the Council did not issue a


written decision, RCW 36. 0C.does not apply
                      a)
                      040(
                         4)(
                         7

            In sum, RCW 36. 0C.applies; the land use decision was issued on the date it
                        c)
                        040(
                           4)(
                           7

was entered into the public record. On April 13, the Council met and unanimously voted to deny
Northshore's        appeal. The Council hearing was broadcast and streamed live, and a video

recording was made available on the City's website less than two hours after the meeting

adjourned. The voting record and a closed-caption transcript of the hearing were made available

on the City's website the next day. No further action was required to make the oral vote a final


                                                             15
42490 8 II
      - -



decision, and the Council's   vote   properly   identified the scope and terms of its decision. The


Council entered its final decision on April 13.

               2.     The Council Was Not Required to Issue a Written Decision

       Next, Northshore contends that TMC 1.0.requires a written decision. Northshore
                                          030
                                            7

also contends that the structure of RCW 36. 0C.supports the conclusion that the Clerk's
                                        040(
                                           4)
                                           7

notice of appeal results constituted a written decision. Northshore's arguments fail because (1)

chapter 1.0 TMC, when read as a whole, contemplates the Council issuing an oral, final land
         7
use decision following a Council hearing; and (2) notice of appeal results was a notice, not a
                                                 the

decision.


       In reviewing municipal ordinances, we apply the same rules of statutory construction

applied to state statutes. City of Gig Harbor v. N. Pac. Design, Inc., Wn.App. 159, 167, 201
                                                                     149

P. d 1096 (2009).To the extent possible, all provisions should be harmonized so that no words
 3                "
or phrases are rendered superfluous or meaningless."City ofPuyallup v. Pac. Nw. Bell Tel. Co.,

98 Wn. d 443, 448, 656 P. d 1035 (1982).Furthermore, considerable judicial deference should
     2                  2                            "

be given to the construction of an ordinance by those officials charged with its enforcement."

Citizens.for a Safe Neighborhood v. City ofSeattle, 67 Wn. App. 436, 440, 836 P. d 235 (1992).
                                                                               2

        The TMC provides, in part, that "[ he Council's decision shall be in writing and shall
                                         t]

specify findings and conclusions whenever such findings and conclusions are different from

those of the appealed recommendation." TMC 1.0. This can mean either (1)all decisions
                                           030.
                                            7
must be in writing and that findings and conclusions are required if they differ from the appealed

recommendation or (2)if the Council's findings and conclusions differ from the appealed
recommendation, then they need       to   be put in writing. Northshore argues that the qualifying


phrase in this provision, whenever such findings and conclusions are different from those of the
                          "
                                                    16
42490 8 II
      - -




appealed recommendation,"
                        applies only to the requirement that the Council specify findings and

conclusions. The two compound phrases in the sentence stand alone, Northshore contends, and

o]ly the second compound phrase contains a subjective clause limited to itself by specifying
 n
whenever     such     findings and conclusions   are   different. "'   Response   Br.   of Appellant

Northshore) at 12 (emphasis in original).

        Although Northshore's construction of TMC 1.0.is plausible when this code section
                                                  030
                                                    7

is read in isolation, the construction cannot be reconciled with other provisions of the TMC .

TMC 1.0.also states that at a hearing "[ he City Council shall accept, modify, or reject any
    030
     7                                t]

findings or conclusions,or remand the recommendation of the Hearing Examiner for further
                        ,
hearing."TMC 1.0.provides: When taking any final action, the City Council shall make
             040
              7            "

and enter findings of fact of the record and conclusions therefrom which support its action....

The City Council may adopt all or portions of the Hearing Examiner's findings and conclusions
supporting the recommendation." Finally, TMC 1.0.which is titled "Review of Council
                                             050,
                                              7

decision,"
         states: " ursuant to RCW Chapter 36. 0C, the final date of the decision of the City
                 P                          7

Council on the appeal shall be deemed to be the date the motion concerning the appeal is adopted

by the City Council and shall be considered to have been entered into the public record on.hat
                                                                                          t
date."Thus, chapter 1.0 TMC, when read as a whole, contemplates the Council issuing final
                     7

land use decisions at city council hearings by oral motion. If a written decision were required in

all instances, TMC 1.0.would be rendered meaningless. When viewed through the lens of
                   050
                     7

chapter 1.0 TMC as a whole, the code language in question here should be read to mean that a
         7


4
    See State v. Bunker, 169 Wn. d 571, 578, 238 P. d 487 (2010) ( " do not apply [the last
                               2                  3              We
antecedent rule of grammar] if other factors, such as context and language in related statutes,
indicate contrary legislative intent or if applying the rule would result in an absurd or nonsensical
interpretation. ").
                                                 17
42490 8 II
      - -



written decision is not necessary where the Council agrees with the Examiner's findings and

conclusions. That was the case here, as the Council voted to concur in the Examiner's findings,

conclusions, and recommendation. In this circumstance, the TMC did not require the Council to

issue a written decision.

         Northshore's final argument is that the structure of RCW 36. 0C. supports the
                                                                  040(
                                                                     4)
                                                                     7

conclusion that the Council issued a written decision. Northshore points out that " UPA speaks
                                                                                  L

first to `a written decision' that is `mailed   by the local jurisdiction. "' Response Br. of Appellant

Northshore) at 17 (citing RCW 36. 0C. Northshore contends that because there was
                              a)).
                              040(
                                 4)(
                                 7

a written decision in the Clerk's notice of appeal results, the court must end its inquiry at

subsection (a) RCW 36. 0C. Northshore argues that "[ n order to reach subsection (c)
              of   040(
                      4).
                      7                           i]
     there would have to have been no written decision mailed out by the jurisdiction."Response

Br. of   Appellant ( Northshore) at   17.   Northshore's argument relies on the premise that the

Clerk's notice of appeal results constitutes a written decision, an argument we reject.

Northshore's argument fails because it has not established that the Council issued a written
decision.


5
    The City also persuasively asserts that this reading is consistent with the longstanding
                 of the Clerk, the individual who     signed   the notice of   appeal   results. The Clerk
interpretation
shall
         p] all legal notices, unless otherwise provided by law or ordinance" and
              ublish
         p] such other duties as may be imposed or prescribed by the laws of the
               erform
         State of Washington, the Charter of the City of Tacoma, the ordinances of the
         City of Tacoma, or as may be required or requested by the Mayor and members of
         the Council,the City Manager, or the City Attorney.
TMC 1.6. The Clerk declared that the TMC does not require the mailing of a notice of
       100( 7
            0 ).
appeal results and that the City provides such a document to the parties of record simply as a
courtesy. Deference to the City's interpretation of its own code provides further support for the
argument that the Council was not required to issue a written decision in this case. See Mall, Inc.
v. City ofSeattle, 108 Wn.2d 369, 377 78, 739 P. d 668 (1987) It is a well established rule of
                                        -          2               ("
statutory construction that considerable judicial deference should be given to the construction of
an ordinance by those officials charged with its enforcement. ").
                                                     18
42490 8 II
      - -



                   3. Northshore Received Notice of the Land Use Decision

            Furthermore, Northshore had ample notice that the land use decision was scheduled for

and   was     in fact made at the   April   13   hearing. Before the hearing, the City's legal counsel

emailed to Northshore's and SNET's legal counsel " memorandum prepared [by the City's legal
                                                 a

counsel] to assist the City Council from a procedural standpoint in its deliberations and decision
on    the   appeal."   CP at 540.     The memorandum, entitled "Tacoma City Council—
                                                                                   Appeal

Procedures,"set forth the framework for the Council's consideration of the application for

rezone modification, including the options for action. See CP at 57476.
                                                                    -

            Northshore was thus on notice that one of the options .for action was to "[ ffirm or
                                                                                      a]

concur in the Hearing Examiner decision (which means deny the rezone request),based on the

findings and conclusions prepared by the Hearing Examiner)." at 576. In addition, counsel
                                                           CP
for Northshore attended the hearing, presented oral argument on the appeal on behalf of

Northshore and the Owners, and was aware that the Council voted on a motion to affirm the

Examiner's recommendation and deny the appeal. Northshore's counsel later declared that he

had been "under the impression that the City Council might not act on the appeal during the

appeal hearing ...."       CP at 541. But the Council made a decision at the hearing rendering this

preconception irrelevant.

            The Clerk's notice of appeal results was a notice and not a final decision; the TMC does

not require a written decision; and Northshore was on notice that the Council made an oral
decision at the April 13 hearing. Northshore's service was untimely: 21 days after April 13 is

6
    While counsel for Northshore was present at the hearing, the owners' legal counsel was not at
the hearing. Northshore's counsel declared, Before the hearing],I called [the owner's]
                                            "[                                       legal
counsel ...      and informed him that I did not see a reason for him to attend the hearing as there
would be, at most, 10 minutes for argument and a decision might not be reached that evening."
CP at 541.
                                                        19
42490 8 II
      - -



May    4.   Northshore served the City and SNET on May 6, at least one day later than RCW

36. 0C. allows. Accordingly, the superior court erred by denying the City's and
c)
040(
   4)(
   7

SNET's motions to dismiss the amended LUPA petition for Northshore's failure to timely serve

them.


II.      THE ORIGINAL LUPA PETITION


         The City contends that dismissal of Northshore's amended LUPA petition also requires

dismissal of Northshore's original LUPA petition. Because effective relief under the original
LUPA petition was contingent on the successful appeal of the amended LUPA petition, we
                                                                          -

agree.


         Northshore seeks preliminary plat and site plan approval that conflicts with the condition

of the existing R 2 PRD zone that requires the golf course to remain as open space. The rezone
                  -

modification    application sought   to remove   the   golf   course's open space    designation. As the

Examiner     concluded, The inability
                        "               to approve     the Rezone Modification ...     makes approval of

the Site'Plan impossible....
                          Similarly the failure to demonstrate sufficient changes in condition

removes any basis for modifying or removing the [Concomitant Zoning Agreement] condition

requiring adherence to the original Site Plan."CP at 43. Thus, because we direct dismissal of

Northshore's appeal of the Council's adoption of the Examiner's recommendation to deny the

request for a rezone modification, the golf course's open space designation remains in place.

Accordingly, we remand to the trial court to dismiss the original LUPA petition as well as the

amended petition.




7
    Northshore does not respond to this argument in its brief.
                                                     20
42490 8 II
      - -



III.     ATTORNEY FEES


         In its response brief to Northshore's appeal, the City requests attorney fees under RCW

370.
4.4. It does not request attorney fees in' its opening brief as a cross -appellant. Thus, it is
 8

unclear whether the City requests attorney fees in the event it prevails on its cross appeal.

         RCW 4.4.
             370(
                1 reads:
                8 )

         Notwithstanding any other provisions of this chapter, reasonable attorneys' fees and costs
         shall be awarded to the prevailing party or substantially prevailing party on appeal before
         the court of appeals or the supreme court of a decision by a county, city, or town to issue,
         condition, or deny a development permit involving a site -specific rezone, zoning, plat,
         conditional use, variance, shoreline permit, building permit, site plan, or similar land use
         approval or decision. The court shall award and determine the amount of reasonable
         attorneys' fees and costs under this section if.
                 a) The prevailing party on appeal was the prevailing or substantially prevailing
         party before the county, city, or town, or in a decision involving a substantial
         development permit under chapter 90. 8 RCW, the prevailing party on appeal was the
                                               5
         prevailing party or the substantially prevailing party before the shoreline[s]  hearings
         board; and
                b)The prevailing party on appeal was the prevailing party or substantially
         prevailing party in all prior judicial proceedings.

The city " hose decision is on appeal is considered a prevailing party if its decision is upheld at
         w

superior court and on appeal." RCW 4.4. Here, the superior court upheld the City's
                                   370(
                                      2
                                      8 ).
decision to deny Northshore's rezone request. But, on appeal, we do not reach the merits of the

City's   decision.    See Witt v. Port of Olympia, 126 Wn. App. 752, 759, 109 P. d 489 (2005)
                                                                               3

concluding that the statutory language of RCW 4.4. supports the conclusion that the
                                              370
                                                8
legislature intended to allow attorney fees only to a party who prevails on the merits ");
Overhulse, 94 Wn. App. at 601 ( concluding that a county was not the prevailing party under

RCW 4.4.because its decision was not upheld when the superior court dismissed for lack of
    370
     8

jurisdiction and did not review the merits of the county's decision). But see Prekeges v. King
County, 98 Wn. App. 275, 285, 990 P. d 405 (1999) concluding that RCW 4.4.does not
                                   2              (                   370
                                                                        8

                                                   21
42490 8 II
      - -



require that the party must have prevailed on the merits).Accordingly, consistent with Witt and
Overhulse two decisions from this divisionwe decline to award the City attorney fees.
          —                               —

       We reverse the trial court's order denying the City's and SNET's motions to dismiss the

amended LUPA petition for lack of jurisdiction and remand for dismissal * f the amended and
                                                                        o

original LUPA petitions.




We concur:




       Van Deren, J.




                                              22
