                                                                              FILED 

                                                                            DEC 5,2013 

                                                                   In the Office of the Clerk of Court 

                                                                 W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DMSION THREE 


ARTHUR GRESH,                                  )
                                               )         No. 31394-8-III
                      Appellant,               )
                                               )
       v.                                      )
                                               )
OKANOGAN COUNTY AND                            )         UNPUBLISHED OPINION
MAZAMA PROPERTIES, LLC,                        )
                                               )
                      Respondent.              )

       KORSMO, C.J. -    Appellant Arthur Gresh brought a L UP A l claim challenging an

earlier nonappealed fmalland use decision concerning the same property. Because our

Supreme Court has already determined that L UPA does not permit such untimely

collateral attacks, we affirm. Respondent's request for attorney fees requires us to weigh

in on a split in the divisions of this court regarding the availability of attorney fees under

RCW 4.84.370 in this circumstance. We award the requested fees.

                                           FACTS

       Mazama Properties LLC (MP) is the developer ofthe Nordic Village subdivision

in Okanogan County's unincorporated Mazama community. In 2007, the county



       1 Land   Use Petition Act, chapter 36.70C RCW.
No. 31394-8-111
Gresh v. Okanogan County, et al.


approved MP's plan for a four lot Nordic Village short plat. MP then sought permission

to further divide lot 1 into a 12 lot long plat.

       In July of2010 the county issued a mitigated determination of nonsignificance

(MDNS) for the long plat under the State Environmental Policy Act (SEPA), chapter

43.2lC RCW. The MDNS conditioned approval on MP limiting Nordic Village's water

use to the permit exemptions specified in RCW 90.44.050.z The county gave its final

approval to the long plat on March 14, 2011. The final approval of the long plat went

unchallenged.

       Following approval of the long plat, MP applied to the county to rezone six of the

twelve lots in the long plat. Using the MDNS that was developed during the long plat

approval process, the county issued a determination of nonsignificance (DNS) for the

proposed rezone. On August 23, 2011, the county gave final approval to the rezone.

       On September 9,2011, neighboring property owner Arthur Gresh filed a LUPA

petition challenging the rezone. Mr. Gresh argued that the DNS should not have been

issued and needed to be withdrawn because Nordic Village did not have an adequate and


       2 The adequacy of the Nordic Village's well water supply has been an issue
throughout the property's development. Like Mr. Gresh, this court has a hard time
understanding how the twelve lots hope to subsist on only 2,880 gallons of water per day
combined, especially when the Okanogan County Health District requires each of the six
residential lots to be allocated a minimum of 360 gallons per day. However, because the
MDNS was not timely challenged the way to ensure proper water use at this stage is
through an action to enforce the conditions specified in the MDNS in the event that those
conditions are violated.

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No. 31394-8-III
Gresh v. Okanogan County, et al.


legal water supply. Because the DNS was premised on the finding of an adequate and

legal water supply in the MDNS, Mr. Gresh's petition necessarily challenged the MDNS.

       In January of2012, the superior court dismissed the petition. The court ruled that

the MDNS was unreviewable due to LUPA's 21 day statute of limitations. Mr. Gresh

thereafter timely appealed to this court.

                                        ANALYSIS

       Mr. Gresh's appeal takes issue with the court's ruling on his challenge to the long

plat. MP in tum requests its attorney fees under RCW 4.84.370. We will address each

claim in tum.

       LUPA

       "Under SEPA, before a local government processes a permit application for a

private land use project, it must make a 'threshold determination' of whether the project

is a 'major action significantly affecting the quality of the environment.'" Anderson v.

Pierce County, 86 Wn. App. 290, 300-01, 936 P.2d 432 (1997) (quoting RCW

43.21C.030(2)(c». The responsible official will usually issue either a determination of

significance (DS) or a DNS. Id. "A DS mandates intensified environmental review

through preparation of an EIS [Environmental Impact Statement]." Id. "Conversely, a

DNS means that no EIS will be required." Id.

       An alternative threshold determination is the MDNS, "which involves changing or

conditioning a project to eliminate its significant adverse environmental impacts." Id.

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No. 31394-8-III
Gresh v. Okanogan County, et al.


(citing WAC 197-11-350); RCW 43.21C.060. With an MDNS "the governmental agency

may specify mitigation measures and issue a MDNS only if the proposal is changed to

incorporate those measures." Id. at 301-02 (citing WAC 197-11-350(3».

       In the present case, the county issued an MDNS that applied to the long plat

approval. A few months later, the county, relying on the MDNS, issued a DNS with

regard to the rezone. An agency's reliance on existing SEPA documents to justify later

actions is expressly permitted to prevent needless duplication of efforts. WAC 197-11­

600; Thornton Creek Legal De! Fund v. City ofSeattle, 113 Wn. App. 34, 50, 52 P.3d

522 (2002). Accordingly, the county did not err by relying on the long plat's MDNS to

justify the rezone's DNS.

      The question here is whether the timely appeal of the rezoning DNS opened up the

non-appealed long plat MDNS for collateral attack. The Washington Supreme Court

answered this question negatively in Wenatchee Sportsmen Ass 'n v. Chelan County, 141

Wn.2d 169, 182,4 P.3d 123 (2000).

      There the county had granted an application for a site-specific rezone, which

constituted a final land use decision. No appeal was taken from that decision. Later, the

county made another final land use decision when it approved a plat application for the

same property. The Wenatchee Sportsmen Association timely appealed the plat

approval. Through that challenge, the Association attempted to collaterally attack the

rezone. Id. at 174-75. The Supreme Court held that LUPA plainly and unambiguously

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No. 31394-8-III
Gresh v. Okanogan County, et al.


requires that any challenge to a final land use decision occur within 21 days of issuance.

Id. at 181-82.

       The court reaffirmed the holding of Wenatchee Sportsmen a few years later in

Habitat Watch v. Skagit County, 155 Wn.2d 397,410-11, 120 P.3d 56 (2005). There, the

court held that a LUPA challenge to a grading permit could not be used to collaterally

attack a special use permit that had been issued earlier in the development process. The

Supreme Court then went further, stating that "even illegal decisions must be challenged

in a timely, appropriate manner." Id. at 407.

       Wenatchee Sportsmen and Habitat Watch 'demonstrate the primacy that the

doctrine of finality has over land use decisions. Because these cases hold that a

previously unchallenged final land use decision cannot be collaterally attacked we affirm

the superior court's dismissal of Mr. Gresh's LUPA petition. 3

      Attorney Fees

       As the prevailing party throughout this action, MP requests attorney fees under

RCW 4.84.370. In essence, that statute provides that "parties are entitled to attorney fees



       3 Recognizing the controlling effect of these cases, Mr. Gresh also appears to
argue that his request for the county to withdraw the MDNS actually operates outside of
LUPA because his request was brought under WAC 197-11-340. This argument fails
because Mr. Gresh brought his cause of action under LUPA, meaning that he had to
comply with LUPA's statute of limitations. If Mr. Gresh wanted to avoid LUPA he
needed to have brought his challenge under a different statute, assuming such an
alternative route even exists.

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No. 3 1394-8-III
Gresh v. Okanogan County, et al.


only if a county, city, or town's decision is rendered in their favor and at least two courts

affirm that decision." Habitat Watch, 155 Wn.2d at 413. "The possibility of attorney

fees does not arise until a land use decision has been appealed at least twice: before the

superior court and before the Court of Appeals and/or the Supreme Court." Id. "Thus,

parties challenging a land use decision get one opportunity to do so free of the risk of

having to pay other parties' attorney fees and costs if they are unsuccessful before the

superior court." Id. Although this standard seems straight forward in application, we

note that the other two divisions of this court are split on whether to award attorney fees

when the appellate court affirms a trial court's determination that the LUPA action was

untimely.

       Division Two was the first to address this issue. It held that a decision based

solely on jurisdictional grounds such as the timeliness of a LUPA petition does not fall

within the scope ofRCW 4.84.370. Overhulse Neighborhood Ass'n v. Thurston County,

94 Wn. App. 593, 601, 972 P .2d 470 (1999). Overhulse concluded that the statute only

applied to final decisions on the merits. Id. It reached this result by noting that a

dismissal for want ofjurisdiction does not have res judicata effect Id. (citing Peacock v.

Piper, 81 Wn.2d 731, 734, 504 P.2d 1124 (1973)).

       Six months later, Division One disagreed with this limited reading of RCW

4.84.370. Division One noted that the statute says nothing about prevailing on the merits.

Prekeges v. King County, 98 Wn. App. 275, 285-86, 990 P.2d 405 (1999).

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No. 31394-8-III
Gresh v. Okanogan County, et al.


       Since then, Division Two has held that the "legislature intended to allow attorney

fees only to a party who prevails on the merits" and that a party does not "substantially

prevail" under the statute when the appeal is decided on procedural grounds. Witt v. Port

o/Olympia, 126 Wn. App. 752, 759, 109 P.3d 489 (2005); Quality Rock Prods., Inc. v.

Thurston County, 126 Wn. App. 250, 275, 108 P.3d 805 (2005); Northshore Investors}

LLCv. Cityo/Tacoma, 174 Wn. App. 678, 701, 301 P.3d 1049, review denied, 178

Wn.2d 1015 (2013). Earlier this year, Division One noted the ongoing disagreement

between the two divisions when it refused to back down from Prekeges in Durland v. San

Juan County, 175 Wn. App. 316, 326, 305 P.3d 246 (2013).4

       Division Three has not yet weighed in on this debate, but must do so now. We

believe that attorney fees are available in this circumstance.

       Our task is to construe a statute. RCW 4.84.370(1)5 awards fees to the

"prevailing" or "substantially prevailing" party in land use litigation. The term "prevail"

does not connote either a merits decision or a procedural one, but suggests only that a

party succeeded in the litigation. "Prevail" does not connote a particular type of success.


        4 A petition for review is pending under cause no. 89293-8 ..
        5 In relevant part, RCW 4.84.370(1) states: "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. "

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No. 31394-8-111
Gresh v. Okanogan County, et al.


In the context of attorney fees, the Supreme Court has held that "a party prevails when it

succeeds on any significant issue which achieves some benefit the party sought in

bringing suit." Blair v. Wash. State Univ., 108 Wn.2d 558, 572, 740 P.2d 1379 (1987)

(addressing RCW 4.84.010). Under this definition, a party need only succeed in some

manner to "prevail." The party need not succ.eed on the merits, although success on the

merits is one way to obtain some benefit.

       We believe the Blair approach is more useful here than the res judicata approach

favored by Division Two. Peacock is inapposite because RCW 4.84.370 is not concerned

with any benefits from res judicata that may accrue to a party. Instead, prevailing in a

land use case is the only criterion for an award of attorney fees. The long-term or

collateral benefits of success are not a consideration.

       If, as Habitat Watch contends, the purpose of the fee award is to give a party one

"free" appeal without risk of bearing the other party's costs, then the reason why a party

wins or loses is simply not relevant. 6 Indeed, an argument can be made that pursuing a

procedurally defective appeal through multiple layers of court is more like a frivolous

case than is an appeal addressed to the merits of an argument. The public policy of RCW

4.84.370 is furthered by applying the statute to these facts, while that policy would be

defeated by denying application of the statute to some subclass of LUPA appeals.



       6 Habitat   Watch, 155 Wn.2d at 413.

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No. 31394-8-III 

Gresh v. Okanogan County, et al. 



      MP has fended off a LUPA challenge to its development plans. It has

substantially prevailed. Accordingly, we grant MP its reasonable attorney fees for this

appeal.

      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.


                                                       Korsmo, C.J.




                                                       Fearing, .




                                            9

