                                                                      FILED
                                                                  DECEMBER 12, 2017
                                                               In the Office of the Clerk of Court
                                                              WA State Court of Appeals, Division III




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

STEVE BERSCHAUER,                            )
                                             )        No. 34970-5-111
                    Appellant,               )
                                             )
      V.                                     )
                                            )
STATE OF WASHINGTON,                        )         UNPUBLISHED OPINION
DEPARTMENT OF ENTERPRISE                    )
SERVICES; PUGET SOUND ENERGY,               )
INC., a Washington State Public Utilities   )
Corporation; FYI PROPERTIES, a              )
Washington nonprofit corporation; THE       )
BANK OF NEW YORK MELLON                     )
TRUST COMPANY, NATIONAL                     )
ASSOCIATION, as Trustee Under               )
Indenture of Trust Dated As Of August 1,    )
2009 and THE CITY OF OLYMPIA,               )
                                            )
                    Respondents.            )

      SIDDOWAY, J. -    Steve Berschauer appeals the trial court's dismissal of his

declaratory judgment action seeking to invalidate a boundary line adjustment approved
I
I
    No. 34970-5-111
    Berschauer v. Dep 't Enter. Servs., et al.


    by the city of Olympia (City) in September 2011. His action was time-barred under the

    Land Use Petition Act (LUPA), chapter 36.70C RCW. We affirm.

                                   PROCEDURAL BACKGROUND

           On December 4, 2015, Steve Berschauer filed the action below, seeking a

    declaration that the city of Olympia's boundary line adjustment to property the State of

    Washington represented to be state-owned was void ab initio. He sought a court-ordered

    reversion of boundaries to those existing before the adjustment. Mr. Berschauer claimed

    that contrary to the requirements of a City ordinance, the City approved an application for

    the adjustment he had not signed, even though it affected real property to which he held

    title by adverse possession.

           Former Olympia Municipal Code (OMC) 17.30.030 (2006) 1 provided that the

    City's planning department was to certify as compliant and approve a proposed boundary

    line adjustment "if and only if' seven requirements were met. One was that "[t]he map

    includes acknowledged signatures of all parties having an interest in lots the lines of

    which are being adjusted." Id.; Clerk's Papers (CP) at 14-15. Former OMC 17.30.040

    (2006), the code provision following the list of requirements, stated that "the boundary

    line adjustment shall not be final until ... [t]here is compliance with the requirements [in

    OMC 17.30 .030]." CP at 15. The map submitted by the State in support of its proposed


           1
           Olympia Ordinance 6408, § 6 (2006). The provision has since been amended by
    Olympia Ordinance 7072, § 1 (2017).

                                                 2
No. 34970-5-111
Berschauer v. Dep 't Enter. Servs., et al.


boundary line adjustment bore the acknowledged signature of only the director of its

Department of Enterprise Services.

       Attached to Mr. Berschauer's complaint in this action was an order of the

Thurston County Superior Court entered two weeks earlier in Cause No. 13-2-02519-9,

determining by summary judgment that Mr. Berschauer and his predecessors had

adversely possessed a part of the property affected by the State's proposed boundary line

adjustment. The order decreed that the 10 year period of adverse possession started with

the building of a fourplex that it is undisputed took place in the l 960s. 2

       Mr. Berschauer's complaint acknowledged that the boundary line adjustment

being challenged for the first time in 2015 had been approved by the City "in late 2011,

under BLA 3 No. 11-0135." CP at 6. It was later demonstrated that the boundary line

adjustment was recorded on December 21, 2011.

       In answering the complaint, the defendants asserted that Mr. Berschauer's claim

was barred by the statute of limitations. The City soon moved under CR l 2(b )( 6) and




       2
         Final orders in that action have also been appealed by Mr. Berschauer. The trial
court's determination that Mr. Berschauer and his predecessors acquired title to property
by adverse possession was not cross appealed by the State. See our decision in Steve
Berschauer v. State of Washington Department of General Administration, et al., Court
of Appeals No. 35502-1-111 (unpublished), also being filed today.
       3
           Boundary line adjustment (BLA).

                                               3
I
    No. 34970-5-111
    Berschauer v. Dep 't Enter. Servs., et al.


    12(c) to dismiss the complaint as time-barred under LUPA, and the State joined the

    motion. At the hearing on the motion, the fact that Mr. Berschauer had remedial options

    other than collaterally attacking the boundary line adjustment was raised in questioning

    by the trial court and mentioned in its oral ruling. See Report of Proceedings (Feb. 26,

    2016) at 7-8, 21. The court granted summary judgment to the City and State on the basis

    that Mr. Berschauer's action was time-barred, however. Mr. Berschauer appeals.

                                             ANALYSIS

           The legislative purpose in enacting LUPA was to "establish[] uniform, expedited

    appeal procedures and uniform criteria for reviewing [land use] decisions, in order to

    provide consistent, predictable, and timely judicial review." RCW 36.70C.010.

    "[LUPA] establishes a uniform 21-day deadline for appealing the final decisions of local

    land use authorities and is intended to prevent parties from delaying judicial review at the

    conclusion of the local administrative process." Habitat Watch v. Skagit County, 155

    Wn.2d 397,406, 120 P.3d 56 (2005). LUPA's statute of limitations begins to run on the

    date a land use decision is "issued" and dictates the exact date a decision is issued based

    on the nature of the decision. Id. at 409; RCW 36.70C.040(4)(a).

           A declaratory judgment action challenging the validity of a boundary line

    adjustment is subject to review under LUPA. Chelan County v. Nykreim, 146 Wn.2d

    904, 929, 52 P.3d 1 (2002). Despite a four year time gap between the adjustment and his

    lawsuit, Mr. Berschauer contends his claim was not time-barred because the City's failure

                                                 4
     No. 34970-5-III
     Berschauer v. Dep 't Enter. Servs., et al.


     to abide by the municipal code's signature requirement made its approval of BLA No.

     11-0135 void ab initio, and subject to challenge at any time. He also makes passing

     argument, citing Habitat Watch, that the 21-day limitations period never began to run or

     that it began to run only when he prevailed, in part, on his adverse possession claim.

            We review de novo a trial court's decision to grant a CR 12(b)(6) motion. San

     Juan County v. No New Gas Tax, 160 Wn.2d 141, 164, 157 P.3d 831 (2007).
I                           LUPA 's 21-day statute of limitations applies
I
            By its terms, LUP A applies to claims that a "body or officer that made the land


I    use decision engaged in unlawful procedure or failed to follow a prescribed process."

     RCW 36.70C.130(l)(a). It also expressly applies to claims that "[t]he land use decision
I    is outside the authority or jurisdiction of the body or officer making the decision." RCW
I    36.70C.130(l)(e). In Habitat Watch, our Supreme Court relied on this language to hold
I    that under LUPA, "defects in land use determinations that could have resulted in
I
     decisions that were void ab initio under pre-LUPA cases fall within LUPA, with its

     express 21-day limitation period." 155 Wn.2d at 407. Elsewhere, the Court stated that a
I
     challenge to a land use decision "lies within LUP A-even where the decision is allegedly
 I
 I   void." Id. at 408.
i
 I
I'          Mr. Berschauer tries to avoid this clear holding of Habitat Watch by suggesting

     that the decision is anomalous and perhaps no longer good law after South Tacoma Way,

     LLC v. State, 169 Wn.2d 118,233 P.3d 871 (2010) and Bilanko v. Barclay Court Owners

                                                  5
I    No. 34970-5-111
I    Berschauer v. Dep 't Enter. Servs., et al.

l
I    Ass'n, 185 Wn.2d 443,450,375 P.3d 591 (2016). Both of those cases apply the historic


I
I
     distinction between actions that are only voidable and therefore subject to the statute of


I    limitations, and those that are void and "subject to challenge and invalidation at any time,

     perhaps years later." South Tacoma, 169 Wn.2d at 124. But South Tacoma and Bilanko

I    did not involve a challenge to land use planning decisions subject to LUPA. They


II   represent a distinction between void and voidable decisions that exists in non-LUPA

     cases but that Habitat Watch holds does not apply under LUPA.

            We also agree with the City and State that even ifland use decisions could be

     defective in ways making them void ab initio after LUPA, the City's unwitting approval

     of the State's noncompliant application would be voidable, not void. South Tacoma

     provided examples of cases in which the Court has articulated why a government's mere

     violation of its statutes does not make its action void:

            In Wendel [v. Spokane County, 27 Wash. 121, 123-24, 67 P. 576 (1902)],
            this court held that a municipal corporation is liable for-and thus bound
            by-only those actions it had the general authority to perform. Over the
            years, we have repeatedly upheld this distinction, maintaining that a
            government action is truly ultra vires only if the agency was without
            authority to perform the action. Bd. ofRegents v. City of Seattle, 108
            Wn.2d 545,552, 741 P.2d 11 (1987) ("An act of an officer which is within
            his realm of power, albeit imprudent or violative of a statutory directive, is
            not ultra vires."); Haslund v. City ofSeattle, 86 Wn.2d 607, 622, 547 P.2d
            1221 (1976) ("An ultra vires act is one performed without any authority to
            act on the subject."); Finch v. Matthews, 74 Wn.2d 161, 172,443 P.2d 833
            (1968) (stating that an entity is bound by "acts which are within the scope
            of the broad governmental powers conferred, granted or delegated, but
            which powers have been exercised in an irregular manner or through
            unauthorized procedural means").

                                                   6
No. 34970-5-III
Berschauer v. Dep 't Enter. Servs., et al.



169 Wn.2d 118 at 122-23. See accord Bilanko, 185 Wn.2d at 450-51 ("Actions that fail

to comply with statutory requirements are generally not void unless the legislature has

authorized such a penalty."). Approving a boundary line adjustment is an action the City

had the power to perform. By not requiring the signature of Mr. Berschauer on the

application, the City merely violated a directive of the municipal code (unwittingly, since

Mr. Berschauer's title was not yet a matter of record). The boundary line adjustment was

voidable if timely challenged, but not void.

       L UP A's 21-day statute of limitations applied to Mr. Berschauer' s challenge to the

boundary line adjustment.

                  Mr. Berschauer's claim was time-barred under LUPA.

       As a fall back argument, Mr. Berschauer points out that "[e]ven if Habitat Watch

applies, the court in that case noted that the LUPA limitations period does not begin to

run until a land use decision is issued," and "here, the boundary line adjustment was

never actually approved ... because it did not comply with the requirement of [former]

OMC 17 .30.030( 5) that the map bear the acknowledged signature of every person with an

interest in the property." Br. of Appellant at 10.

       Consistent with LUPA's objective of providing uniform appeal procedures and

consistent and predictable judicial review, it defines when government action is a "land




                                               7
No. 34970-5-III
Berschauer v. Dep 't Enter. Servs., et al.


use decision," including when a decision is final. Durland v. San Juan County, 182

Wn.2d 55, 65, 340 P.3d 191 (2014) (county's definition of "final" determination was

irrelevant; L UP A's definition of "land use decision" controls). A land use decision is

final under LUPA when any administrative appeal available under the applicable code

has been exhausted. Id. at 64-65. "This comports with the plain reading of the statute,

which requires that the 'final detennination' come from the 'officer with the highest level

of authority ... , including those with authority to hear appeals." Id. at 65 (alteration in

original) (quoting RCW 36.70C.020(2)); and see Samuel's Furniture, Inc. v. Dep 't of

Ecology, 147 Wn.2d 440, 452-53, 54 P.3d 1194 (2002), 63 P.3d 764 (2003) (finality

turned on whether the municipal decision reached the merits and terminated a permit

process; once the city determined the permit should issue, "that was the end of the

controversy. Samuel's received the relief it had requested. No additional issues

remained."). The City's approval of the boundary line adjustment was final for purposes

of its being a "land use decision" under LUPA.

       LUPA also dictates when a decision is "issued." Under RCW 36.70C.040(4)(a), a

land use decision that is not an ordinance or resolution resolving a quasi-judicial matter is

considered issued on the third day after it is mailed, or on the date on which the local

jurisdiction provides notice that a written decision is publicly available. If that date does




                                              8
No. 34970-5-III
Berschauer v. Dep 't Enter. Servs., et al.


not apply, the decision is considered issued on the date it is entered into the public record.

RCW 36.70C.040(4)(c). The record on appeal does not indicate whether approval of the

boundary line adjustment was mailed or notice given, but does establish an outside

issuance date of December 21, 2011, the date it was recorded.

       Finally, Mr. Berschauer argues that Habitat Watch ran the limitation period from

the time Habitat Watch became aware it had the basis for a challenge, and he did not

become aware he had the basis for a challenge until the Thurston County Superior Court

entered its November 20, 2015 order; he filed his action within 21 days thereafter. (Mr.

Berschauer does not explain why the State and City should have known earlier that his

signature was required on the application, but he should not.) But Habitat Watch ran the

limitations period from the date when Habitat Watch received notice because the Court

found that the applicable statutory issuance date was that provided by RCW

36.70C.040(4)(a) ("[t]hree days after ... the local jurisdiction provides notice that a

written decision is publicly available" (emphasis added)). Here, the applicable statutory

issuance date was December 21, 2011, as provided by RCW 36.70C.040(4)(c). A

plaintiff need not be aware of a land use decision for the 21-day period to run.

Applewood Estates Homeowners Ass 'n v. City of Richland, 166 Wn. App. 161, 168-69,

269 P.3d 388 (2012) (citing Samuel's Furniture, 147 Wn.2d at 462).




                                              9
I
i
!
I
I
    No. 34970-5-111
    Berschauer v. Dep 't Enter. Servs., et al.


           The trial court properly dismissed Mr. Berschauer's claim for his failure to meet

    LUPA's 21-day deadline. 4

                                       Attorney fees on appeal

           The City and State request an award of attorney fees and costs under RCW

    4.84.370 should they prevail on appeal. Mr. Berschauer asks us to deny a fee award

    because the City and State (1) prevailed on only procedural grounds and (2) failed to

    comply with the requirements of RAP 18.l(b).

           In Durland, our Supreme Court resolved a split of authority in this court over

    whether a prevailing party is entitled to an award of fees under RCW 4.84.370 if the

    courts do not reach the merits of the land use decision. Observing differences between

    subsections (1) and (2) of the statute, the Court held that a prevailing party other than

    "the county, city, or town whose decision is on appeal" is entitled to an award of fees



           4 The City argues that we could also affirm the trial court on the basis that Mr.
    Berschauer had an alternative remedy, since a final judgment on his adverse possession
    claim would give him record title, on the basis of which he could seek a boundary line
    adjustment of his own. "Ordinarily, where a plaintiff has another adequate remedy, he or
    she should not proceed by way of a declaratory judgment action." Wagers v. Goodwin,
    92 Wn. App. 876,880,964 P.2d 1214 (1998). While CR 57 authorizes a trial court to
    enter a declaratory judgment even though another remedy is available, "[t]he granting of
    declaratory relief is discretionary" with the trial court. Ronken v. Bd. of County Comm 'rs
    ofSnohomish County, 89 Wn.2d 304,310,572 P.2d 1 (1977).
           The fact that Mr. Berschauer did not need declaratory relief is arguably a simpler
    and more compelling basis for affirming the trial court. Since the focus in the trial court
    was almost entirely on the statute of limitations with only fleeting mention of Mr.
    Berschauer's remedial options, we decide the appeal on that basis.

                                                 10
No. 34970-5-III
Berschauer v. Dep 't Enter. Servs., et al.


when it prevails on any issue, jurisdictional or otherwise. Durland, 182 Wn.2d at 78

(construing RCW 4.84.370(1)). RCW 4.84.370(2) authorizes an award of fees to the

entity that made the challenged land use decision "if its decision is 'upheld' in two

courts," however, which the Court held implies prevailing on the merits. Id. Here, then,

the City is not entitled to an award of fees on appeal, while the State is.

       RAP 18.1 (b) requires a party who requests reasonable attorney fees or expenses on

appeal to "devote a section of its opening brief to the request for the fees or expenses."

The requirement has been held to be mandatory. Wilson Court Ltd. P 'ship v. Tony

Maroni's, Inc., 134 Wn.2d 692, 710 n.4, 952 P.2d 590 (1998). The State has not

segregated its request for attorney fees from the rest of its brief with a heading or flagged

it by formatting, but it has devoted a free-standing paragraph of its opening brief to the

request, identifying RCW 4.84.370 as authority and arguing why it applies.

       No reported decision holds just how "separate" the "separate section [of] the brief'

must be to comply with RAP 18.l(b). Wilson Court, 134 Wn.2d at 710 n.4. A clearer

demarcation from the remainder of the brief would have been prudent, but the State's

brief satisfies the purpose for requiring a separate section, which is to require argument

and citation to authority sufficient "to advise us of the appropriate grounds for an award."

Id. Decisions denying fees under RAP 18.l(b) have emphasized a party's failure to

comply with this substantive aspect of the "section" requirement. E.g., Denaxas v.

Sandstone Court of Bellevue, LLC, 148 Wn.2d 654,671, 63 P.3d 125 (2003) (fees denied

                                              11
No. 34970-5-111
Berschauer v. Dep 't Enter. Servs., et al.


where "[n]one of the briefs mentioned attorney fees"); Bishop of Victoria Corp. Sole v.

Corp. Bus. Park, LLC, 138 Wn. App. 443,462, 158 P.3d 1183 (2007) (fees denied where

requested in the last sentence of the brief, but without any citation to authority or

argument); Phillips Bldg. Co. v. An, 81 Wn. App. 696,704,915 P.2d 1146 (1996) (fees

requested on appeal "without any argument or citation to authority"); Austin v. US. Bank

of Wash., 73 Wn. App. 293, 313, 869 P.2d 404 (1994) (parties "have made no argument

and cited no authority to support their request for fees").

       We find the State's request compliant with RAP 18.l(b). We award it reasonable

fees and costs on appeal subject to its compliance with RAP 18.l(d).

       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




                                             12
