IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 PIONEER SQUARE HOTEL
 COMPANY and APH CORPORATION,                         DIVISION ONE
 Washington corporations,
                                                      No. 80000-1-I
                         Appellants,
                                                      ORDER GRANTING MOTION
                  v.                                  FOR RECONSIDERATION
                                                      WITHOUT ALTERING RESULT
 THE CITY OF SEATTLE, acting through
 the SEATTLE PUBLIC UTILITIES,

                         Respondent.

          The respondent, City of Seattle, has filed a motion for reconsideration of the

opinion filed on February 18, 2020. The City does not seek alteration of the result.

The appellants have filed a response to the respondent’s motion, indicating no

opposition to the request. The court has determined that the motion should be

granted, the opinion withdrawn, and a substitute opinion filed; now, therefore, it is

hereby

          ORDERED that the motion for reconsideration is granted; and it is further

          ORDERED that the opinion filed on February 18, 2020 is withdrawn; and it is

further
No. 80000-1-I/2



      ORDERED that a substitute opinion shall be filed and published in the

Washington Appellate Reports.




                                           2
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 PIONEER SQUARE HOTEL
 COMPANY and APH CORPORATION,                       DIVISION ONE
 Washington corporations,
                                                    No. 80000-1-I
                        Appellants,
                                                    PUBLISHED OPINION
                 v.

 THE CITY OF SEATTLE, acting through
 the SEATTLE PUBLIC UTILITIES,

                        Respondent.

       DWYER, J. — Pioneer Square Hotel Company (Pioneer) appeals from the

trial court’s summary judgment order dismissing its declaratory and injunctive

relief claims against the city of Seattle (City). In dismissing the claims, the trial

court characterized Pioneer’s action as a land use petition subject to the 21-day

statutory limitation period of the Land Use Petition Act1 (LUPA). We reverse;

LUPA and its procedural rules do not govern this action.

                                           I

       Pioneer is improving a property in Seattle’s Pioneer Square neighborhood

located at 110 Alaskan Way South. As part of this process, Pioneer was

required to obtain a multiple use permit and a building permit from the Seattle

Department of Construction and Inspections (formerly the Department of

Construction and Land Use). Once these permits were obtained, Pioneer was



       1   Ch. 36.70C RCW.
No. 80000-1-I/2


required to obtain a water availability certificate (WAC) from Seattle Public

Utilities (SPU) before its property could be connected to the City’s water supply

system. SPU issued a WAC in 1999 certifying that water was available from an

existing 6-inch diameter water main on Alaskan Way South.

       However, construction of the improvement, a 33-unit hotel addition, was

significantly delayed for reasons unrelated to the present litigation. During the

intervening period, the WAC issued in 1999 expired. Accordingly, when Pioneer

approached SPU seeking activation of a meter on the existing 6-inch water main

on Alaskan Way South, SPU required that Pioneer apply for a new WAC.

       Pioneer did so. On January 29, 2018, SPU issued a new water availability

determination, coupled with WAC 20180049, which was not to take effect until

Pioneer contracted to install a new 8-inch water main running from Yesler Way,

north of the property, to the existing 6-inch main. SPU was to own and operate

this main upon its successful installation. Three days later, SPU issued a revised

determination, which required Pioneer to contract for construction of a 12-inch

main, with an accompanying WAC 20180136. The reason given for the change

was a clerical error in the prior determination—applicable regulations required 8-

inch mains to serve new developments in residentially zoned areas but required

12-inch mains for new developments that, as with Pioneer’s hotel, lie in

commercially zoned areas. Again, SPU was to own and operate the new main.

       Pioneer appealed this determination to SPU’s manager level review

committee on February 15, 2018. Pioneer offered evidence that the 6-inch main

was adequate for its property’s needs and that requiring it to install a 12-inch




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main was unnecessary and burdensome. On March 19, Pioneer received SPU’s

manager level determination, which stated:

       The existing 6-inch water main in Alaskan East Roadway Way is
       not well documented and may not fully support new water services
       after the reconstruction of Alaskan Way. The new requirement is to
       design and install approximately 80 feet of 8-inch ductile iron
       restrained joint pipe from the existing 12-inch water main in Alaskan
       Way South, crossing Alaskan Way to the south Alaskan Way parcel
       boundary. New water services will be provided from the new 8-inch
       ductile iron pipe. A new Water Availability Certificate will be issued
       to reflect the changes in the water main extension requirement.

       Pursuant to this decision, SPU issued WAC 20180570, again not to take

effect until these new requirements were met. This determination provided for

appeal to SPU’s director if Pioneer was unsatisfied. Pioneer so appealed. On

May 15, 2018, SPU Director Jeff Bingaman conveyed to Pioneer SPU’s director

level determination. This determination, again, rejected Pioneer’s proposal to

use the existing 6-inch water main, and clarified that WAC 20180570 should

require a 12-inch and not an 8-inch water main—one that would be owned,

operated, and maintained by SPU upon being completed. In the alternative,

Pioneer was offered the option of installing two private water lines, one 4-inch

main and one 2-inch main, connecting across Alaskan Way South to a 12-inch

main. The determination indicated that SPU would issue a new WAC reflecting

Pioneer’s preferred option.

       Pioneer, instead, contacted both Bingaman and assistant city attorney

William Foster, restating its argument in favor of allowing the project to be served

by the existing water main. Foster replied that the director level determination

contained the City’s final position on the matter.




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        In August 2018, Pioneer commenced this action in superior court, seeking

a declaratory judgment that the conditions SPU placed on the issuance of a WAC

violated RCW 82.02.020, which limits municipal authority to require payments

from developers. Pioneer also sought an injunction requiring SPU to activate the

meter on the existing 6-inch water main to serve the hotel addition.

        The City’s answer raised several affirmative defenses: failure to state a

claim on which relief may be granted, lack of subject matter jurisdiction, failure to

file a claim, and failure to assert the claim within the applicable statutory limitation

period. The City then moved to dismiss the complaint and moved for judgment

on the pleadings on the basis that the complaint sought review of a land use

decision pursuant to LUPA, and that such review was time barred by LUPA’s 21-

day statutory limitation period.

        Because Pioneer’s memorandum in opposition to this motion was

supplemented with a declaration and exhibits including photographs, the City’s

motion to dismiss was converted to a CR 56 motion for summary judgment. On

summary judgment, the trial court dismissed Pioneer’s declaratory and injunctive

relief claims with prejudice, holding them to be time barred under LUPA. Pioneer

moved for reconsideration of this order on the basis that, because SPU’s director

level determination offered it two options for proceeding, it was not a final agency

determination. The trial court granted this motion and modified its order to

dismiss the complaint without prejudice.2 Pioneer appeals both the original



        2  Since this time, the City has in fact issued a new determination and WAC, which has also
been appealed to the superior court in a separate action. That action has been stayed pending the
result of this proceeding.


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No. 80000-1-I/5


dismissal order and the order on its motion for reconsideration, averring that both

orders incorrectly characterized its action as a LUPA petition.

                                         II

      Pioneer’s primary contention on appeal is that the City’s decisions that

give rise to this court challenge do not fall within the purview of LUPA because

they were not “land use decisions.” Accordingly, Pioneer argues, LUPA’s 21-day

limitation period is inapplicable. We agree.

                                         A

      The purpose of statutory interpretation is to determine, and give effect to,

the intent of the legislature. Columbia Riverkeeper v. Port of Vancouver USA,

188 Wn.2d 80, 91, 392 P.3d 1025 (2017). Questions of law regarding the

construction of a statute are reviewed de novo for errors of law. McTavish v. City

of Bellevue, 89 Wn. App. 561, 564, 949 P.2d 837 (1998). When a statute or

ordinance is unambiguous, construction is not necessary, as the plain meaning

controls. McTavish, 89 Wn. App. at 565.

      LUPA “replaces the writ of certiorari for appeal of land use decisions and

shall be the exclusive means of judicial review of land use decisions.” RCW

36.70C.030(1). In turn,

      “[l]and use decision” means 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, on:
              (a) An application for a project permit or other governmental
      approval required by law before real property may be improved,
      developed, modified, sold, transferred, or used, but excluding
      applications for permits or approvals to use, vacate, or transfer
      streets, parks, and similar types of public property; excluding




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No. 80000-1-I/6


       applications for legislative approvals such as area-wide rezones
       and annexations; and excluding applications for business licenses;
               (b) An interpretative or declaratory decision regarding the
       application to a specific property of zoning or other ordinances or
       rules regulating the improvement, development, modification,
       maintenance, or use of real property; and
               (c) The enforcement by a local jurisdiction of ordinances
       regulating the improvement, development, modification,
       maintenance, or use of real property. However, when a local
       jurisdiction is required by law to enforce the ordinances in a court of
       limited jurisdiction, a petition may not be brought under this chapter.

RCW 36.70C.020(2).

       Neither party contends that subsection (c) applies to the decision at issue.

The City contends that its determination meets the definition of a land use

decision pursuant to either subsection (a) or (b) of RCW 36.70C.020(2).

                                          B

       First, we must determine whether the City’s action constituted a “land use

decision” as that term is defined in RCW 36.70C.020(2)(a). Again, a land use

decision as defined in subsection (2)(a) requires

       [a]n application for a project permit or other governmental approval
       required by law before real property may be improved, developed,
       modified, sold, transferred, or used, but excluding applications for
       permits or approvals to use, vacate, or transfer streets, parks, and
       similar types of public property; excluding applications for legislative
       approvals such as area-wide rezones and annexations; and
       excluding applications for business licenses.

RCW 36.70C.020 (emphasis added). The parties dispute the applicability of the

exception contained herein for “applications for permits or approvals to use,

vacate, or transfer streets, parks, and similar types of public property.”

       Pioneer notes that the water mains in question are public property, as is

the water that they carry and that Pioneer desires to purchase—the entire water




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No. 80000-1-I/7


distribution system to which it seeks connection is owned by the public through

SPU. Pioneer asserts that SPU’s decisions regarding how adjacent landowners

access its public water supply, using public infrastructure in a public right-of-way,

fall within the exception in RCW 36.70C.020(2)(a) for “applications for permits or

approvals to use, vacate, or transfer streets, parks, and similar types of public

property.”

       Our opinion in Wescot Corp. v. City of Des Moines, 120 Wn. App. 764, 86

P.3d 230 (2004), is instructive. Therein, a construction company sought approval

to build a conveyor system for the direct transport of fill material from the

waterfront to an inland construction site. Wescot, 120 Wn. App. at 766.

Engineering necessity dictated that the conveyor system traverse a city park.

Wescot, 120 Wn. App. at 766-67. When the city declined to permit this activity,

Wescot filed a LUPA petition. The city contended that LUPA did not apply.

Wescot, 120 Wn. App. at 767-68. We agreed, stating:

              Wescot contends that the legislature intended to limit the
       park use exclusion to minor usages, but this argument finds no
       support in the actual language of the statute. . . . The statute is
       constructed so that an application to “use” a “park” is in the same
       category as an application to vacate a street, or an application to
       “use, vacate or transfer” other types of public property that are
       similar to streets and parks. Read as a whole, the exclusion
       evinces a legislative intent to treat the decisions a city makes as an
       owner of public property more deferentially than decisions a city
       makes as a regulator of private property.

Wescot, 120 Wn. App. at 769 (emphasis added).

       Our reasoning in Wescot is applicable herein. The water availability

certification process adopted by SPU requires an application for approval to use

public property—the water distribution infrastructure and the water to be



                                              7
No. 80000-1-I/8


purchased are publicly owned and, were Pioneer to construct the new 12-inch

water main, that main would also be publicly owned. Subsection (a) exists to

recognize and give effect to the distinction between when a government acts as

a regulator of private land and when a government acts as a property owner.

Here, the City’s decision on how and when Pioneer may connect to its water

system is a decision it makes “as an owner of public property.” Wescot, 120 Wn.

App. at 769. As such, it is not a “land use decision,” as that term is defined in

subsection (a).

                                         C

       We now turn to an analysis of RCW 36.70C.020(2)(b). This subsection

provides a second definition for a land use decision as

       [a]n interpretative or declaratory decision regarding the application
       to a specific property of zoning or other ordinances or rules
       regulating the improvement, development, modification,
       maintenance, or use of real property.

RCW 36.70C.020(2)(b) (emphasis added).

       Because SPU’s water availability determination did not apply ordinances

or rules regulating the use of Pioneer’s private property, the determination falls

outside this second LUPA definition of “land use decision.”

       Cave Properties v. City of Bainbridge Island, 199 Wn. App. 651, 401 P.3d

327 (2017), is distinguishable. In Cave Properties, Division Two of this court

ruled LUPA governed a local government’s determination in part because the

applicable ordinances “‘regulated’ Cave’s use and development of its property.”

199 Wn. App. at 664. SPU’s determination involved no ordinance regulating

Pioneer’s use and development of its property.



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No. 80000-1-I/9


       Given that none of the definitions of “land use decision” set forth in RCW

36.70C.020(2) encompass the City’s decision herein, LUPA does not apply to

Pioneer’s action. The trial court thus erred by applying LUPA’s 21-day limitation

period to this action. It further erred by dismissing Pioneer’s action as untimely.

The complaint should not have been dismissed. It must be reinstated and further

proceedings are warranted.

       Reversed and remanded.




WE CONCUR:




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