                                                                            .
                                                                   Supreme Court Clerk


    IN THE SUPREME COURT OF THE STATE OF WASHINGTON


MICHAEL DURLAND, KATHLEEN                    )                   No. 89293-8
FENNELL, and DEER HARBOR                     )              (Ct. App. # 68453-1-1)
BOATWORKS,                                   )    (Skagit County Superior Ct. # 112024809)
                                             )
              Petitioners,                   )                  Consolidated with
                                             )
       v.                                    )                   No. 897 45-0
                                             )              (Ct. App. # 69134-1-1)
SAN JUAN COUNTY, WES                         )   (San Juan County Superior Ct. # 1220504 74)
HEINMILLER, and ALAN STAMEISEN,              )
                                             )                      En Bane
              Respondents.                   )
                                             )       Filed   _D_EC_1_1_2_01_4_ _ __


      WIGGINS, J.-ln this consolidated case, petitioners brought an untimely

challenge to San Juan County's issuance of a garage-addition building permit.

Petitioners did not receive notice of the permit application and grant until the

administrative appeals period had expired. Thus, petitioners claim that our court's

interpretation of the Land Use Petition Act (LUPA), chapter 36.70C RCW, required

them to do the impossible: to appeal a decision without actual or constructive notice

of it. While this result may seem harsh and unfair, to grant relief on these facts would

be contrary to the statutory scheme enacted by the legislature as well as our prior

holdings.   Indeed, we have acknowledged a strong public policy supporting

administrative deadlines and have further explained that "[l]eaving land use
Durland et a/. v. San Juan County et a/.
No. 89293-8 consolidated with 89745-0


decisions open to reconsideration long after the decisions are finalized places

property owners in a precarious position and undermines the Legislature's intent to

provide expedited appeal procedures in a consistent, predictable and timely

manner." Chelan County v. Nykreim, 146 Wn.2d 904, 933, 52 P.3d 1 (2002). This

court has faced numerous challenges to statutory time limits for appealing land use

decisions and has repeatedly concluded that the rules must provide certainty,

predictability, and finality for land owners and the government. Petitioners offer us

no mechanism that would permit them to assert their claim under LUPA's statutory

framework. 1

         In Durland 1 Michael Durland skipped San Juan County's administrative

appeals process and filed a land use petition directly in superior court to challenge

the issuance of a building permit to his neighbor. The court dismissed the petition,

finding that there was no "land use decision" under LUPA. The Court of Appeals

agreed, 2 and we affirm. We hold that petitioners are required to exhaust available

administrative remedies in order to obtain a land use decision. We also hold that

there are no equitable exceptions to the exhaustion requirement. 3                 The plain


1 We do not address the possibility of a constitutional writ because Durland tfas not raised
the issue. RAP 13.7(b) (this court generally only reviews issues raised by the parties in the
petition and answer). Likewise, because Durland did not raise equitable tolling in his briefs
or in his petition for review, we do not address whether equitable tolling might have permitted
Durland to assert his claim.
2   Durland v. San Juan County, 175 Wn. App. 316, 305 P.3d 246 (2013).

3 Because there was no land use decision and Durland failed to exhaust his administrative
remedies, we need not reach the superior court's third basis for dismissing Durland's
petition: that Durland failed to comply with LUPA's 21-day time bar.


                                               2
Durland et a/. v. San Juan County et a/.
No. 89293-8 consolidated with 897 45-0


language of LUPA as set forth by the legislature and as interpreted by our court

compels this result.

       In Durland 2 Michael Durland filed an untimely appeal with the San Juan

County hearing examiner, who dismissed the appeal. Durland then filed a complaint

and land use petition in superior court challenging the dismissal as a violation of his

constitutional right to due process. U.S. CONST. amend. XIV, § 1, CaNST. art. I, § 3.

We hold that there is no violation of due process because Durland has no

constitutionally protected property interest in the denial of his neighbor's permit.

       Last, we affirm the award of attorney fees to Heinmiller in both cases and

award Heinmiller fees for this appeal. Under the plain language of RCW 4.84.370(1 ),

a private party who "prevail[s]" or "substantially prevail[s]" may obtain fees. The

statute does not limit fee awards to parties who prevail on the merits.

                                           FACTS

       On August 8, 2011, respondents Wesley Heinmiller and Alan Stameisen

(collectively Heinmiller) applied to San Juan County for a building permit to add a

second story to their garage. On November 1, 2011, San Juan County granted the

permit. Petitioners Michael Durland, Kathleen Fennel, and Deer Harbor Boatworks

(collectively Durland) are neighboring property owners who claim that the garage-

addition permit adversely impacts their views of the water and diminishes their ability

to enjoy the shoreline.

       The San Juan County Code (SJCC) does not require public notice when

issuing building permits, and petitioners were unaware that the permit had been


                                             3
Durland et at. v. San Juan County et a/.
No. 89293-8 consolidated with 89745-0


issued until December 5, 2011, 34 days after the permit was issued. 4 By that time,

the deadline for filing an administrative appeal under the county code had passed.

SJCC 18.80.140(D)(1) (administrative appeal of building permit must be filed within

21 days of issuance of permit). Nonetheless, on December 19, 2011, Durland filed

two actions, a LUPA petition in Skagit County Superior Court (Durland 1) and an

administrative appeal to the San Juan County hearing examiner (Durland 2).

         In Durland 1, Durland challenged the validity of the building permit; he

asserted that the permit authorized construction in violation of county shoreline and

zoning requirements, and he sought a judicial determination that the building permit

was void.      The superior court dismissed the LUPA petition for several reasons:

Durland had not exhausted his administrative remedies, the petition was not filed

within LUPA's 21-day appeal period, and there was no land use decision because

Durland had not timely appealed to the hearing examiner. The Court of Appeals

affirmed. Durland v. San Juan County, 175 Wn. App. 316, 305 P.3d 246, review

granted, 179 Wn.2d 1001, 315 P.3d 530 (2013).

         In Durland 2, Durland also sought reversal of the permit in an administrative

appeal to the San Juan County hearing examiner. The hearing examiner dismissed

the appeal as untimely.        Durland then filed a 42 U.S.C. § 1983 claim with an

alternative LUPA claim in San Juan Superior Court to challenge the order of

dismissal and the SJCC on grounds that both violated his constitutional right to due



4   Durland learned of the permit through a public records request.


                                               4
Durland et a!. v. San Juan County et a!.
No. 89293-8 consolidated with 89745-0


process. Durland argued that the SJCC violated his due process rights because it

does not require the county to provide notice of permitting decisions so that

neighboring property owners can timely challenge them.               The superior court

summarily dismissed the LUPA petition and granted respondents' motion for

summary judgment on the§ 1983 claim. The Court of Appeals affirmed, holding that

Durland does not possess a constitutionally protected property interest upon which

a due process claim can be based. Durland         v.   San Juan County, noted at 177 Wn.

App. 1002, 2013 WL 5503681, at *1. 5 The Court of Appeals in both Durland 1 and

Durland 2 awarded Heinmiller attorney fees under RCW 4.84.370.               We granted

review of both Durland 1 and Durland 2 and consolidated the two cases. Durland,

179 Wn.2d 1001.

                                           ANALYSIS

I.     In Durland 1, the superior court properly dismissed the LUPA petition

       In Durland 1, the superior court correctly dismissed the land use petition

because Durland did not appeal to the hearing examiner prior to filing his petition.

Durland's failure to seek review with the hearing examiner is doubly fatal to his LUPA

suit: it meant that no final land use decision had been made, thus depriving the

superior court of appellate jurisdiction; and it deprived Durland of standing because

he had failed to exhaust his administrative remedies. Durland argues that he was




5The first appeal under LUPA (Wash. Ct. App., No. 68757-3-1) was dismissed as premature.
The second appeal containing Durland's § 1983 claim (Wash. Ct. App., No. 69134-1-1)
proceeded on the merits.


                                              5
Durland et a/. v. San Juan County et a/.
No. 89293-8 consolidated with 89745-0


not required to appeal to the hearing examiner because he had no notice of the

permit until after his appeal window had closed. We have rejected this argument.

A.     Standard of review

       LUPA governs judicial review of land use decisions. RCW 36. 70C.030. Under

LUPA, a court may grant relief from a land use decision only if the party seeking relief

has shown:

              (a) The body or officer that made the land use decision engaged
       in unlawful procedure or failed to follow a prescribed process, unless
       the error was harmless;

              (b) The land use decision is an erroneous interpretation of the
       law, after allowing for such deference as is due the construction of a
       law by a local jurisdiction with expertise;

             (c) The land use decision is not supported by evidence that is
       substantial when viewed in light of the whole record before the court;

              (d) The land use decision is a clearly erroneous application of
       the law to the facts;

              (e) The land use decision is outside the authority or jurisdiction
       of the body or officer making the decision; or

              (f) The land use decision violates the constitutional rights of the
       party seeking relief.

RCW 36. 70C.130(1 ). This court reviews rulings under RCW 36.70C.130 de novo.

Knight v. City of Yelm, 173 Wn.2d 325, 336, 267 P.3d 973 (2011 ).

B.     There was no land use decision in Durland 1

       The superior court did not have jurisdiction to hear this appeal because there

was no land use decision. The legislature enacted LUPA in 1995 to replace the writ

of certiorari as the exclusive means of appealing a local land use decision. RCW



                                            6
Durland et a/. v. San Juan County et at.
No. 89293-8 consolidated with 89745-0


36.70C.030. LUPA's purpose is to ensure uniform and expedited judicial review of

land use decisions. RCW 36. 70C.01 0.

       A superior court hearing a LUPA petition acts in an appellate capacity and has

only the jurisdiction conferred by law. Knight, 173 Wn.2d at 337 (citing Conom      v.
Snohomish County, 155 Wn.2d 154, 157, 118 P.3d 344 (2005)). Under LUPA, the

superior court review is limited to actions defined by LUPA as land use decisions.

RCW 36.70C.010, .040(1); Post        v. City of Tacoma, 167 Wn.2d 300, 309, 217 P.3d
1179 (2009). A "land use decision" is defined as

       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) [a]n application for a project permit ....

RCW 36. 70C.020(2).

       The issuance of a permit may qualify as a final land use decision if there is

not a way to administratively appeal the permit under the applicable code. See, e.g.,

Nykreim, 146 Wn.2d at 927-29 (permit issuance deemed land use decision because

no appeals process in place at the time); see also Asche       v. Bloomquist, 132 Wn.
App. 784, 791, 133 P.3d 475 (2006) (issuance of permit was land use decision

because county code did not provide for administrative challenge to building permit).

But where the permitting authority creates an administrative review process, a

building permit does not become "final" for purposes of LUPA until administrative

review concludes. Only then is there a final land use decision that can be the subject

of a LUPA petition. Ferguson       v. City of Dayton, 168 Wn. App. 591, 277 P.3d 705

                                            7
Durland et a!. v. San Juan County et a!.
No. 89293-8 consolidated with 89745-0


(2012) (no land use decision prior to final determination by planning commission,

which was entity with the last word on the permit). This comports with the plain

reading of the statute, which requires that the "final determination" come from the

"officer with the highest level of authority ... , including those with authority to hear

appeals." RCW 36.70C.020(2).

       Here, the San Juan County Department of Community Development and

Planning issued the building permit, which was subject to appeal to a hearing

examiner. SJCC 18.80.140(8)(11 ). Thus, only a decision by the hearing examiner

qualifies as a land use decision. Because Durland did not appeal to the hearing

examiner, the examiner did not issue a final determination, and Durland failed to

obtain a land use decision under LUPA. The court properly dismissed the petition.

       We reject Durland's argument that San Juan County's decision to issue the

permit was a land use decision under LUPA because the SJCC provides that

administrative determinations "shall be final" unless appealed. SJCC 18.1 0.030(C).

This SJCC provision does not make the permit issuance a "final determination" for

LUPA appeals purposes. Cf. Ward v. Bd. of Skagit County Comm'rs, 86 Wn. App.

266, 271, 936 P.2d 42 (1997) (county code categorized hearing examiner's decision

as "final decision," but because decision was nonetheless subject to appeal, it did

not constitute a land use decision under LUPA). Indeed, in Samuel's Furniture, Inc.

v. Dep't of Ecology, we rejected an interpretation of "final" that depends on a party's

decision to appeal. 147 Wn.2d 440, 453, 54 P.3d 1194, 63 P.3d 764 (2002). We

explained that "[a] decision must be either final or interlocutory for appellate


                                            8
Durland et a/. v. San Juan County et a/.
No. 89293-8 consolidated with 89745-0


purposes." /d. at 452. Defining finality in terms of a party's decision to appeal is

unclear because "the decision is final if [a party] decides not to challenge the

decision, but nonfinal, although not interlocutory, if it does." /d. at 453.

       For these reasons, no land use decision had been made at the time Durland

filed his LUPA petition. Consequently, the superior court lacked jurisdiction to hear

the petition.

C.     There are no equitable exceptions to LUPA's exhaustion requirement

       We hold that there are no equitable exceptions to the exhaustion requirement

in LUPA; consequently, Durland's failure to exhaust his administrative remedies

deprived him of standing to file a LUPA petition. To have standing to file a land use

petition, a petitioner must first "exhaust[] his or her administrative remedies to the

extent required by law." 6 RCW 36.70C.060(2)(d).           Here, Durland filed his LUPA

petition with the superior court prior to completing his administrative appeal to the

San Juan County hearing examiner. Because he failed to exhaust his administrative

remedies, the superior court correctly concluded that he lacked standing to file a land

use petition.

       Durland argues that there are equitable exceptions to the exhaustion

requirement because the statute requires exhaustion only "to the extent required by



6 LUPA's definition of "land use decision" implies that exhaustion of administrative remedies
is always required before a superior court may exercise its appellate jurisdiction. RCW
36.70C.020(2); see also West v. Stahley, 155 Wn. App. 691,697,229 P.3d 943 (2010) ("[t]o
obtain a final determination from a local jurisdiction, a LUPA petitioner must necessarily
exhaust all available administrative remedies"). Accordingly, no court has ever excused the
exhaustion requirement in a LUPA case.


                                             9
Durland eta/. v. San Juan County et a/.
No. 89293-8 consolidated with 89745-0


law."   RCW 36.70C.060(2)(d).       He argues that this phrase refers to equitable

exceptions to the exhaustion requirement and that he falls within an equitable

exception either because he had no notice of the permit prior to the administrative

appeals deadline or because exhaustion would have been futile. We reject this

argument.

        "[T]o the extent required by law" refers to statutory exceptions, not equitable

exceptions. RCW 36.70C.060(2)(d). We have looked to the exhaustion requirement

in the Washington Administrative Procedure Act (APA), chapter 34.05 RCW, to

interpret LUPA's exhaustion requirement. See Citizens for Mount Vernon v. City of

Mount Vernon, 133 Wn.2d 861, 869, 947 P.2d 1208 (1997). In doing so, we look for

similar or identical language.    In LUPA, "to the extent required by law" parallels

language in the APA that "[a] petitioner for judicial review need not exhaust

administrative remedies to the extent that this chapter or any other statute states that

exhaustion is not required." RCW 34.05.534(2) (emphasis added). This suggests

that "to the extent required by law" refers to explicit statutory exceptions to the

exhaustion requirement.       Notably, the APA also empowers courts to excuse

exhaustion if the petitioner shows that remedies would be patently inadequate,

exhaustion would be futile, or grave irreparable harm would result from having to

exhaust administrative remedies. RCW 34.05.534(3). LUPA contains no similar

language, and we have never interpreted "to the extent required by law" to refer to

equitable exceptions. It is within the legislature's power to craft statutory exceptions




                                           10
Durland et a/. v. San Juan County et a/.
No. 89293-8 consolidated with 89745-0


if it so wishes. Our duty is to discern and implement the intent of the legislature.

State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003).

       We decline to recognize equitable exceptions to LUPA's exhaustion

requirement because the exhaustion requirement furthers LUPA's stated purposes

of promoting finality, predictability, and efficiency. This is in keeping with our LUPA

case law; generally, we have required parties to strictly adhere to procedural

requirements that promote LUPA's stated purposes. For example, we require strict

compliance with LUPA's bar against untimely or improperly served petitions. In

Habitat Watch v. Skagit County, we held that LUPA's 21-day appeals window barred

a citizens' group's challenge to a construction project, despite the fact that the county

mistakenly failed to provide public notice for two public hearings on permit extensions

for the project. 155 Wn.2d 397, 406-10, 120 P.3d 56 (2005). We explained that "even

illegal decisions must be challenged in a timely, appropriate manner." !d. at 407. 7

By contrast, we have found that LUPA's form and content requirements do not

directly relate to LUPA's stated purpose. Knight, 173 Wn.2d at 336. Accordingly, we

require only substantial compliance with the form and content requirements.




7 See also Nykreim, 146 Wn.2d at 926 (compliance with 21-day time limit essential for court
to acquire jurisdiction); Samuel's Furniture, Inc., 147 Wn.2d at 462 (noting that "LUPA does
not require that a party receive individualized notice of a land use decision in order to be
subject to the time limits for filing a LUPA petition" and holding that a government agency
challenging a local land use decision must file appeal within 21 days); Brotherton v.
Jefferson County, 160 Wn. App. 699, 703-05, 249 P.3d 666 (2011) ("Because the
Brothertons' complaint did not invoke LUPA or comply with the strict 21-day deadline for
appealing final land use decisions, the County's decision has become unreviewable.").


                                             11
Durland eta/. v. San Juan County et at.
No. 89293-8 consolidated with 89745-0


        Here, the exhaustion requirement is essential because it furthers LUPA's

policy of efficient and timely review. Indeed, the promotion of these goals is inherent

in exhaustion requirements generally. As we have noted, the doctrine of exhaustion

        (1) insure[s] against premature interruption of the administrative
        process; (2) allow[s] the agency to develop the necessary factual
        background on which to base a decision; (3) allow[s] exercise of
        agency expertise in its area; (4) provide[s] a more efficient process;
        and (5) protect[s] the administrative agency's autonomy by allowing it
        to correct its own errors and insuring that individuals were not
        encouraged to ignore its procedures by resorting to the courts.

S. Hollywood Hills Citizens Ass'n v. King County, 101 Wn.2d 68, 73-74, 677 P.2d

114 (1984) (citing McKart   v.   United States, 395 U.S. 185, 193-94, 89 S. Ct. 1657, 23

L. Ed. 2d 194 (1969)). Thus, the exhaustion requirement furthers LUPA's stated

purpose and there are no equitable exceptions to it. See also Knight, 173 Wn.2d at

336 (noting that LUPA's standing requirements, which include exhaustion of

administrative remedies (RCW 36.70C.060(1 )(d), are jurisdictional) (citing Nykreim,

146 Wn.2d at 926)).

        Accordingly, we hold that the superior court properly dismissed Durland's

petition in Durland 1 because there was no land use decision under LUPA and

because Durland failed to exhaust his administrative remedies. For those reasons,

the legislature has not authorized the courts to review the challenged permit in this

case.

II.     In Durland 2, the superior court properly granted summary judgment in favor
        of the county on the§ 1983 claim and dismissed the LUPA petition

        In Durland 2, Durland claims the county violated his constitutional right to due

process by failing to provide notice of the permit so that he could timely challenge it

                                             12
Durland et a/. v. San Juan County et a/.
No. 89293-8 consolidated with 897 45-0


and by dismissing his administrative appeal as untimely. U.S. CaNST. amend. XIV

("nor shall any State deprive any person of life, liberty, or property, without due

process of law"). But Durland has not shown that he has a constitutionally protected

property interest to support his due process claims. A constitutionally protected

property interest exists when a plaintiff demonstrates that he or she possesses a

"legitimate claim of entitlement" under the law. Bd. of Regents v. Roth, 408 U.S. 564,

577,92 S. Ct. 2701,33 L. Ed. 2d 548 (1972).         Here, the SJCC does not grant

adjoining property owners a claim of entitlement in the protection of their views; the

code does not require the County to deny a building permit that might impair private

views of the water. Thus, Durland's due process claims fail.

A.     Standard of review

       This court reviews summary judgment determinations de novo, engaging in

the same inquiry as the trial court. Morin v. Harrell, 161 Wn.2d 226, 230, 164 P.3d

495 (2007). Summary judgment is proper where there are no genuine issues of

material fact and the moving party is entitled to judgment as a matter of law. CR

56( c). In addition, the applicability of the constitutional due process guaranty is a

question of law subject to de novo review. Wash. lndep. Tel. Ass'n v. Wash. Utils. &

Transp. Comm'n, 149 Wn.2d 17, 24, 65 P.3d 319 (2003).

B.     Protected property interests include all benefits to which there is a legitimate
       claim of entitlement

       The Civil Rights Act, 42 U.S.C. § 1983, provides a federal cause of action for

the deprivation of constitutional rights.    To prevail in a § 1983 action alleging

deprivation of procedural due process, a plaintiff must prove that the conduct

                                            13
Durland et a/. v. San Juan County et a/.
No. 89293-8 consolidated with 89745-0


complained of deprived the plaintiff of a cognizable property interest without due

process. See Mission Springs, Inc. v. City of Spokane, 134 Wn.2d 947, 962, 954

P.2d 250 (1998). In other words, the plaintiff must identify a property right, show that

the state has deprived him or her of that right, and show that the deprivation occurred

without due process. See id. Durland's claim fails because he has not identified a

cognizable property right.

       "Property" under the Fourteenth Amendment encompasses more than

tangible physical property. U.S. CONST. amend. XIV; see Logan v. Zimmerman Brush

Co., 455 U.S. 422,430, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982). Protected property

interests include all benefits to which there is a "'legitimate claim of entitlement'."

Conard v. Univ. of Wash., 119 Wn.2d 519, 529, 834 P.2d 17 (1992) (quoting Roth,

408 U.S. at 577). In Roth, the Supreme Court explained,

       To have a property interest in a benefit, a person clearly must have
       more than an abstract need or desire for it. He must have more than a
       unilateral expectation of it. He must, instead, have a legitimate claim of
       entitlement to it.

408 U.S. at 577. Constitutionally protected property interests may be created either

through (1) contract, (2) common law, or (3) statutes and regulations. See Conard,

119 Wn.2d at 529-30. Durland does not claim a property interest created by contract

or common law. Therefore, we analyze only whether Durland has a property interest

created by statute or regulation.

       In Kentucky Dep't of Corrections v. Thompson, the Supreme Court explained

that statutes creating a liberty interest need not explicitly announce the interest but

must contain "mandatory language" giving rise to a claim of entitlement. 490 U.S.

                                           14
Durland eta/. v. San Juan County eta/.
No. 89293-8 consolidated with 89745-0


454, 463, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989) (prison visitation regulation did

not create a protected interest because did not explicitly provide that a visitor must

be denied a visit if grounds were present or must be allowed a visit if grounds were

absent). 8 We have applied the "mandatory language" test to determine whether a

statute creates a protected property interest. Conard, 119 Wn.2d at 529-30. With

respect to permits, a property interest arises when there are articulable standards

that constrain the decision-making process. Wedges/Ledges of Cal., Inc.            v.   City of

Phoenix, 24 F. 3d 56, 62 (9th Cir. 1994 ). In other words, a property interest exists if

discretion is substantially limited. Braswell v. Shoreline Fire Oep't, 622 F. 3d 1099

(9th Cir. 201 0).

       In a typical land use case, the question is whether a permit applicant has a

"property right" in the requested or revoked permit. Courts have found that a property

interest exists when an applicant is entitled to a permit or variance having met certain

criteria. See Foss   v.   Nat'/ Marine Fisheries Serv., 161 F.3d 584, 588 (9th Cir. 1998)

(holding that "specific, mandatory" and "carefully circumscribed" requirements

constrained discretion enough to give rise to property interest).           Conversely, "a




8 The "mandatory language" test articulated in Kentucky Dep't of Corrections, 490 U.S. 454,
has since been deemed inapplicable when determining whether prison regulations give rise
to a protected liberty interest. Sandin v. Conner, 515 U.S. 472, 484, 115 S. Ct. 2293, 132
L. Ed. 2d 418 (1995). But the "mandatory language" test is still applicable in nonprison
cases. See, e.g., Town of Castle Rock v. Gonzales, 545 U.S. 748, 125 S. Ct. 2796, 162 L.
Ed. 2d 658 (2005) (applying "mandatory language" test to find that wife did not have property
interest in police enforcement of restraining order); see also Doyle v. City of Medford, 606
F. 3d 667, 672-73 (9th Cir. 201 0) (no protected property interest in postretirement health
insurance coverage for employees because statute was not mandatory).


                                             15
Durland et a/. v. San Juan County et at.
No. 89293-8 consolidated with 89745-0


statute that grants the reviewing body unfettered discretion to approve or deny an

application does not create a property right." Thornton v. City of St. Helens, 425 F. 3d

1158, 1164 (9th Cir. 2005).

       Less typically, opponents of development sometimes claim a property interest

in the denial of a permit. In these cases, courts have applied the same analytic

framework. See Shanks v. Dressel, 540 F. 3d 1082, 1090-91 (9th Cir. 2008); see also

Crown Point I, LLC    v. Intermountain Rural Elec. Ass'n, 319 F.3d 1211, 1217 & n.4
(1Oth Cir. 2003) (rejecting distinction between due process claim brought by permit

applicant and claim brought by third party); Hillside Cmty. Church v. Olson, 58 P.3d

1021, 1028 n.6 (Colo. 2002) (the two situations are "simply opposite sides of the

same argument").       But the focus is whether the regulation at issue mandates

protection of the third party's interest. Thus, in analyzing Durland's § 1983 claim, we

must determine whether the SJCC requires the permitting authority to consider the

views of neighboring property owners. The answer is no.

C.     Under the SJCC, Durland does not have a legitimate claim of entitlement to
       his views of the water

       The SJCC imposes height and size limitations on the construction of

residential structures including garages. Durland argues that these limitations create

a property interest because they were intended to protect neighbors' views of the

water. This claim fails because the SJCC does not contain mandatory language

requiring the county to consider neighbors' views of the water before issuing building

permits for garage construction.



                                           16
Durland et a/. v. San Juan County et a/.
No. 89293-8 consolidated with 89745-0


       The first step in our analysis is to identify the applicable provisions in the code.

The San Juan County Shoreline Master Program (SMP), chapter 18.50 of the SJCC,

governs Heinmiller's application for a permit to construct a second-story office and

entertainment area above his garage. Specifically, the permit at issue falls under

SJCC 18.50.330, which applies to residential developments and appurtenant

structures including garages. 9

       Second, we determine whether the applicable provisions are couched in

mandatory language giving rise to a legitimate claim of entitlement. Here, Durland's

due process claim fails because there is no mandatory language in SJCC 18.50.330

giving rise to a protected property interest.             SJCC 18.50.330(8)(15) and

.330(E)(2)(a) limit the number and size of accessory structures associated with a

single-family residence. Specifically, the code allows two accessory structures-one

garage building and one accessory dwelling unit of no more than 1,000 square feet

each, or a combination of the two not exceeding 2,000 square feet. Durland claims

the garage was more than 1,000 square feet so it was not a lawful accessory

structure. Accordingly, a building permit to add to the garage could not be lawfully

issued.   But nothing in subsections .330(8)(15) or .330(E)(2) suggests that the




9 Indeed, parties appear to agree that the development at issue falls under SJCC 18.50.330.
In the land use petition and complaint, Durland argues that the permit authorized
development in violation of the height and size limitations imposed by section .330 on
accessory structures. See SJCC 18.50.330(8) (Regulations-Location and Design),
.330(E) (Regulations-Accessory Use).


                                            17
Durland et a/. v. San Juan County et a/.
No. 89293-8 consolidated with 89745-0


mandatory size limitations are intended to protect the views of neighboring property

owners.

       Durland also relies on general height limitations in SJCC 18.50.330(8)(14 ).

But subsection .330(8)(14) does not apply because Heinmiller is constructing a

garage addition, which is governed by the more specific and restrictive provisions of

subsections     .330(8)(15)    and    .330(E)(2)(a).      See    SJCC     18.50.330(8)(5),

.330(E)(2)(a) (setting height limits for garage and accessory buildings), .040(E)

("Where provisions of this SMP conflict, the more restrictive of the provisions applies

unless specifically stated otherwise.").          And unlike subsection .330(8)(14),

subsections .330(8)(15) and .330(E)(2)(a) never mention protection of views.

       In any case, the height limits in subsection .330(8)(14) exist to protect public

visual access, not private views. 10 Under subsection .330(8)(14 ), any residential

structure that exceeds 35 feet in height shall be permitted only as a conditional use

and an applicant must demonstrate that "the structure will not result in significant

adverse visual impacts, nor interfere with normal, public, visual access to the water."

SJCC 18.50.330(8)(14).        "The applicant must also demonstrate that there are

compensating factors which make a taller structure desirable from the standpoint of

the public interest."   /d. (emphasis added). A later provision in SJCC 18.50.330


10 We are not suggesting that the provision grants any member of the public a property
interest in views of the water. As we explained in Crosby v. Spokane County, "[T]he interests
of the public, including those who are neighbors, are represented by the Board. That
representation tends to limit any possible prejudice to neighboring landowners." 137 Wn.2d
296, 310, 971 P.2d 32 (1999) (neighboring landowners did not have interest requiring that
they be joined in writ of certiorari proceedings if feasible).


                                             18
Durland et a/. v. San Juan County et a/.
No. 89293-8 consolidated with 89745-0


confirms that the County is principally concerned with residential developments that

impair public visual access.       See SJCC 18.50.330(F)(1) (specifically regulating

"PublicNisual Access" with regard to residential subdivisions and nonexempt

developments).      The code does not use the terms "private" and "public"

interchangeably. 11 Thus, we conclude that the height limits in subsection .330(8)(14)

do not give neighbors a legitimate claim of entitlement in their views of the water.

       The Court of Appeals correctly distinguished Asche v. Bloomquist, 132 Wn.

App. 784, 133 P.3d 475 (2006). In Asche, the petitioner filed, in part, a due process

claim alleging that he was not given notice when Kitsap County granted a permit to

his neighbors to build a structure that obstructed his view of Mount Rainier. /d. at

788-89. The Court of Appeals noted that it had to find a protected property interest

in the view before it could consider the due process claim. /d. at 796. Recognizing

that no such interest existed under common law, the court looked to a local zoning

ordinance. /d. at 797. The court found that the zoning ordinance created a protected

property interest in the view because "the plain language of this ordinance requires

that buildings more than 28 feet and less than 35 feet high can be approved only if


11 The trial court contrasted a view protection provision in SJCC 18.50.140(D) to aid in
interpreting subsection .330(8)(14). See SJCC 18.50.140(D) ("to limit interference with
views from surrounding properties to the shoreline and adjoining waters, development on or
over the water shall be constructed only as far seaward as necessary for the intended use").
The court reasoned that the "adverse visual impact" language in subsection .330(8)(14)
differs from the specific reference to "views from surrounding properties" in SJCC
18.50.140(D). Thus, Durland cannot imply that "adverse visual impacts" refers to
neighboring views. In any case, Durland does not rely on SJCC 18.50.140. And at best,
this provision indicates that Heinmiller should construct only as far seaward as is necessary,
which he does because this is a second-story garage addition (the only location to build a
second-story garage is directly on top of the garage).


                                             19
Durland et a/. v. San Juan County et a/.
No. 89293-8 consolidated with 89745-0


the views of adjacent properties . .. are not impaired." /d. at 798 (emphasis added).

Hence, a property interest existed because the ordinance forbade the construction

of buildings that impaired the view of neighboring properties; the language was

mandatory with respect to neighboring views.

       In sum, when a local code fails to explicitly create a property right-as is the

case here-the court determines whether language in the code mandates certain

outcomes when all factual predicates are met. Here, the height and size limitations

of the SJCC do not create a property interest in the denial of a third-party's building

permit. The statutory language does not significantly constrain San Juan County's

discretion to issue garage or accessory unit permits that may impact views from

neighboring properties. From this, it follows that Durland's procedural due process

claim fails. Thornton, 425 F.3d 1158 (absence of property right means there can be

no violation of procedural due process in the land use context). Thus, we affirm the

Court of Appeals' grant of summary judgment on the§ 1983 claim. And, for the same

reasons, we affirm dismissal of Durland's land use petition, which similarly alleges

violation of due process. Durland has no claim under LUPA because he does not

have a sufficient property interest to require that notice be given to him. 12




12Because Durland lacks a cognizable property interest, we do not reach the issue of
whether LUPA's procedural requirements apply to bar a related § 1983 claim.


                                           20
Durland eta/. v. San Juan County eta/.
No. 89293-8 consolidated with 89745-0


Ill.      Affirming the fee awards in Durland 1 and Durland 2 and granting Heinmiller
          attorney fees for this appeal

          We must also decide whether attorney fees are available under RCW

4.84.370 when a party prevails on jurisdictional grounds. Under subsection (1) of

RCW 4.84.370, a private party who substantially prevails before the governmental

unit and in more than one judicial review is entitled to an award of attorney's fees.

But under subsection (2), a county, city, or town may be awarded fees if its decision

was "upheld at superior court and on appeal." RCW 4.84.370(2). Applying the statute

to this case, we hold that Heinmiller, a private party, is entitled to an award of fees in

both Durland 1 and Durland 2.

A.         Standard of review

           Whether a party is entitled to an award of attorney's fees is a question of law

and is reviewed on appeal de novo. Newport Yacht Basin Ass'n of Condo. Owners

v.     Supreme Nw., Inc., 168 Wn. App. 86,285 P.3d 70, review denied, 175 Wn.2d 1015,

287 P.3d 10 (2012). The general rule in Washington is that attorney fees will not be

awarded for costs of litigation unless authorized by contract, statute, or recognized

ground of equity. See Clausen        v.   Icicle Seafoods, Inc., 174 Wn.2d 70, 79, 272 P.3d

827, cert. denied, 133 S. Ct. 199, 184 L. Ed. 2d 39 (2012).

B.         RCW 3.84.370(1) allows fees for private parties who prevail on procedural or
           substantive grounds

           RCW 4.84.370 provides,

           (1)    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,

                                                21
Durland eta/. v. San Juan County et at.
No. 89293-8 consolidated with 897 45-0


       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
       90.58 RCW, the prevailing party on appeal was the 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.

              (2)    In addition to the prevailing party under subsection (1) of
       this section, the county, city, or town whose decision is on appeal is
       considered a prevailing party if its decision is upheld at superior court
       and on appeal.

(Alteration in original.)

      ·There is an apparent split in the Court of Appeals on the interpretation of RCW

4.84.370. Division Two has held that parties are not entitled to fees unless the court

rules on the merits; no fees are awarded if the court dismisses a LUPA petition as

untimely. Witt v. Port of Olympia, 126 Wn. App. 752, 759, 109 P.3d 489 (2005) (RCW

4.84.370 requires a party to prevail on the merits); Overhu/se Neighborhood Ass'n     v.
Thurston County, 94 Wn. App. 593, 601, 972 P.2d 470 (1999). Division One has

awarded fees to substantially prevailing parties regardless of whether the court

reaches the merits. Prekeges v. King County, 98 Wn. App. 275, 285, 990 P.2d 405

(1999) (RCW 4.84.370 does not require that a party prevail on the merits).

       This split can be reconciled. RCW 4.84.370 is divided into two subsections

based on the identity of the parties involved. Under subsection (1 ), prevailing parties

                                           22
Durland eta!. v. San Juan County eta/.
No. 89293-8 consolidated with 89745-0


are entitled to attorney fees only if a county, city, or town makes a permitting decision

in their favor and the party is successful in defending that decision in at least two

courts. Habitat Watch, 155 Wn.2d at 413. Subsection (1) does not require that a

party prevail "on the merits."       Instead, the statutory language indicates the

legislature's intent to allow attorney fees when a party prevails on any issue,

jurisdictional or otherwise.    The term "prevail" does not connote either a merits

decision or a procedural one, but suggests only that a party succeeded in the

litigation. Cf. Blair v. Wash. State Univ., 108 Wn.2d 558, 572, 740 P.2d 1379 (1987)

(addressing RCW 4.84.01 0; holding that "a party prevails when it succeeds on any

significant issue which achieves some benefit the party sought").         Moreover, the

ordinary meaning of "prevail" does not connote a particular type of success. See

WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1797 (2002) ("prevail" means

generally "to gain victory" or "to be ... successful"). And, the statute allows fees for

parties who "substantially" prevail, which suggests that the prevailing party need not

prevail on his or her entire claim. Knight, 173 Wn.2d at 347. Thus, we hold that

under subsection (1 ), a party must succeed in some manner to "prevail." This

includes jurisdictional wins.

       Subsection (2) governs specifically when a "county, city, or town" is the party

seeking attorney fees. RCW 4.84.370(2). Under this provision, a public entity will

receive attorney fees if its decision is "upheld" in two courts, which implies a ruling

on the merits. Thus, in accordance with the structure of the statute, we separate

subsections (1) and (2). We award fees under subsection (1) to private parties who


                                           23
Durland eta/. v. San Juan County eta/.
No. 89293-8 consolidated with 89745-0


prevail on procedural or substantive grounds, but we award fees to the public entity

that made the permitting decision only when the public entity succeeds in defending

its decision on the merits.

         Our case law supports this interpretation of RCW 3.84.370. 13 We affirm the

result in Prekeges because Division One properly awarded fees to a private party

who prevailed on jurisdictional grounds. And we approve Division Two cases to the

extent they apply subsection (2) to deny fees to public entities who prevailed on

jurisdictional grounds. In other words, we approve the results in Overhu/se, Witt,

Northshore, 14 and Pullman 15 but disapprove language in these cases that a city or

county is not entitled to fees if it does not "substantially prevail" on the merits. See,

e.g., Brotherton   v. Jefferson County, 160 Wn. App. 699, 705-06, 249 P.3d 666 (2011)

(improperly relying on RCW 4.84.370(1) to deny County's request for attorney fees).

         The concurrence disagrees with our holding that a party "prevails" under RCW

4.84.370(1) when that party prevails on any issue, whether procedural or

substantive, but that under subsection .370(2) a county, city, or town's decision is

"upheld" only if the decision is upheld on the merits, not on procedural grounds. The

concurrence       argues that "we often         use the words       'uphold' and     'affirm'


13  The decision of the Court of Appeals, Division One, in Coy is the only case that does not
fit within this interpretation because it awards a city fees, which should have been denied
under subsection (2). Coy v. City of Duvall, 174 Wn. App. 272, 298 P.3d 134, review denied,
178 Wn.2d 1007, 308 P.3d 642 (2013). We disapprove this part of the Coy holding.
14Northshore Investors, LLC    v.   City of Tacoma, 174 Wn. App. 678, 700-01, 301 P.3d 1049
(2013).
15   Richards v. City of Pullman, 134 Wn. App. 876, 883-84, 142 P.3d 1121 (2006).


                                               24
Durland et a/. v. San Juan County et a/.
No. 89293-8 consolidated with 89745-0


interchangeably, indicating agreement with a lower court's decision." Concurrence

at 5. But the legislature did not use the term "affirm"; it used the contrasting terms

"substantially prevail[ ]" and "decision is upheld." The use of different terms within

the same statute implicates the "basic rule of statutory construction that the

legislature intends different terms used within an individual statute to have different

meanings." State v. Tracer, 173 Wn.2d 708, 718, 272 P.3d 199 (2012).

C.     Heinmiller is a substantially prevailing party

       Here, we grant fees to Heinmiller under RCW 4.84.370(1) because he

substantially prevailed. In Durland 1, the court dismissed the land use petition and

the Court of Appeals affirmed. Thus, Heinmiller succeeded in defending his permit,

and we affirm the fee award and grant fees for this appeal.

       In Durland 2, the court dismissed the§ 1983 claim and the LUPA petition. We

agree with the Court of Appeals that because Heinmiller was not a defendant to the

§ 1983 claim, he should not receive fees or costs related to defending against that

claim. Durland, 2013 WL 5503681, at *4. But he is entitled to fees related to the

land use petition. Ct. Sing v. John L. Scott, Inc., 83 Wn. App. 55, 920 P.2d 589

(1996), rev'd on other grounds, 134 Wn.2d 24, 948 P.2d 816 (1997) (if law permits

attorney fees on one substantive theory but not another, court should award fees

only for the hours devoted to pursuing claim where fees are recoverable). Thus, we

affirm the Court of Appeals in Durland 2 and grant Heinmiller reasonable attorney

fees to the extent Durland 2 deals with the LUPA claim.




                                           25
Durland et a/. v. San Juan County et a/.
No. 89293-8 consolidated with 89745-0


                                     CONCLUSION

       In Durland 1, we affirm the Court of Appeals' dismissal of the LUPA petition

because there was no land use decision and because Durland failed to exhaust his

administrative remedies.      We also affirm the award of attorney fees and award

Heinmiller attorney fees for this appeal.        Durland 1 is remanded for further

proceedings consistent with this opinion.

       In Durland 2, we affirm summary judgment in favor of the county on the§ 1983

claim because Durland has no protectable property interest to support his due

process claim. In addition, we hold that the superior court did not err in dismissing

Durland's land use petition. On the issue of attorney fees, we affirm the Court of

Appeals and remand to the trial court to determine the proper amount of attorney

fees to be awarded.        We also award Heinmiller reasonable attorney fees for

proceedings in this court to the extent they were incurred in connection with the land

use petition, also to be awarded by the trial court. Durland 2 is remanded for further

proceedings consistent with this opinion.




                                            26
No. 89293-8




      WE CONCUR.




                   27
Durland, et al. v. San Juan County, et al.




                                    No. 89293-8



       STEPHENS, J. (concurring)-! agree with the majority's decision to affirm

and to grant Wesley Heinmiller attorney fees, and for that reason, I concur.

However, I disagree with the majority's interpretation ofRCW 4.84.370.

       First, the majority correctly recognizes a split in the Court of Appeals on the

interpretation of the statute but suggests a novel approach not advanced by anyone.

The Court of Appeals interprets RCW 4.84.370 as being comprehensive, meaning

the standard-as interpreted by each division-applies to private and local

governments alike.     The majority attempts to "reconcile" the inconsistencies

between the divisions by splitting the statute such that under subsection (1) private

parties do not require a ruling on the merits but that under subsection (2) local

governments do require a ruling on the merits. Majority at 23. However, the

majority's attempt to reconcile the conflict between the divisions ignores their very
Durland, et al. v. San Juan County, et al., 89293-8 (Stephens, J. Concurrence)



reasomng. None of the divisions have split the statute in this manner, and neither

the statutory text nor the divisions' interpretations fit into the majority's model.

      Division Two has held that parties-whether private or governmental-are

not entitled to attorney fees unless the court rules on the merits. This is evident in

Witt v. Port of Olympia, where the court said, "[W]e have limited RCW 4.84.370

to require that the 'prevailing' party prevail 'on the merits' in an adversarial

proceeding."    126 Wn. App. 752, 758, 109 P.3d 489 (2005) (citing Overhulse

Neigh. Ass 'n v. Thurston County, 94 Wn. App. 593, 601, 972 P.2d 470 (1999)).

Referencing the entire statute, the court in Witt did not split subsections (1) and (2)

when it interpreted the term "prevail" as requiring a ruling on the merits. Id. at

759. Further, the Witt court reasoned that the legislative intent of the statute "in its

entirety" is to "allow attorney fees only to a party who prevails on the merits." Id.

This legislative intent applies to both local government and private parties

indistinguishably.

       Division One disagrees with Division Two 1 but has similarly interpreted the

standard under RCW 4.84.370 as applicable to both local government and private


       1
        Heinmiller argues that Divisions One and Two are no longer split on this issue
because Division Two recently held that attorney fees may be awarded where courts
dismiss land use appeals on jurisdictional grounds. See Nickum v. City of Bainbridge
Island, 153 Wn. App. 366, 383-84, 223 P.3d 1172 (2009). Division Two in Nickum,
however, did not address the conflict that remains from its previous decisions in
Overhulse and Witt, relying instead on Division One's decision in San Juan Fidalgo

                                          .-2-
Durland, et al. v. San Juan County, et al., 89293-8 (Stephens, J. Concurrence)



parties. In Prekeges v. King County, the court held that the statute does not require

a ruling on the merits. 98 Wn. App. 275, 285, 990 P.2d 405 (1999). For support of

this proposition, the court cited its previous decision in San Juan Fidalgo Holding

Co. v. Skagit County, 87 Wn. App. 703, 714-15, 943 P.2d 341 (1997), where it

awarded attorney fees to the respondents who prevailed on procedural grounds,

including both Skagit County and aligned private parties. Prekeges, 98 Wn. App.

at 285.

      While the bare facts in Witt, Overhulse, and Prekeges may line up with the

majority's attempt to reconcile the split, the courts' reasoning in each case cannot

be harmonized. The divisions continue to assert their conflicting interpretations of

the statute, as is evident in several unpublished Court of Appeals opinions. See

Toward Responsible Dev. v. City of Black Diamond, noted at 181 Wn. App. 1030,

2014 WL 2796526 (Division One) (applying the same attorney fee analysis and

granting fees to both the city and an aligned private party after the Land Use

Petition Act (LUPA), chapter 36.70C RCW, petition was dismissed on procedural

grounds); Mangat v. Snohomish County, noted at 176 Wn. App. 1010, 2013 WL

4734005, at *4-5 (Division One) (granting attorney fees to both the county and


Holding Co. v. Skagit County, 87 Wn. App. 703, 709, 713-15, 943 P.2d 341 (1997).
Thus, Division One and Two remain in conflict on this issue, as noted by the Court of
Appeals in this case. Durland v. San Juan County, 175 Wn. App. 316, 326 n.6, 305 P .3d
246 (2013) (recognizing that Division Two of this court views this question differently).

                                           -3-
Durland, et al. v. San Juan County, et al., 89293-8 (Stephens, J. Concurrence)



aligned private parties who prevailed on procedural grounds, without reaching the

merits ofthe petition); O'Brien v. City ofBremerton, noted at 131 Wn. App. 1046,

2006 WL 401702, at *8 (Division Two) (denying attorney fees to both the city and

an aligned private party because the lower court failed to reach the merits of the

petition, as it was dismissed as untimely).

      I am not convinced by the majority's attempt to reconcile the inconsistent

decisions in the Court of Appeals. The statute is simply not amenable to being

split depending on whether the prevailing party is a governmental entity or a

private actor. I agree with the Court of Appeals that the statute, read as a whole,

must apply in the same way to all affected parties.

       I believe Division One has correctly interpreted RCW 4.83.370, particularly

the word "prevail," as not requiring a ruling on the merits. I would disapprove of

Division Two's interpretation that requires a merit-based win. As the majority

acknowledges, we have generally said a party "prevails" when it succeeds in

litigation. Cf Riss v. Angel, 131 Wn.2d 612, 633, 934 P.2d 669 (1997) ("In

general, a prevailing party is one who receives an affirmative judgment in his or

her favor."). 2 The majority relies too heavily on its own unsupported interpretation




       2
         We have supported this proposition in other areas of law. See, e.g., Blair v.
 Wash. State Univ., 108 Wn.2d 558, 572, 740 P.2d 1379 (1987) (similarly holding in a

                                          -4-
Durland, et al. v. San Juan County, et al., 89293-8 (Stephens, J. Concurrence)



of the word "upheld." Majority at 24. However, we have never said that a win on

the merits of an action, as opposed to procedural grounds, is necessary for a

decision to be upheld. To the contrary, this court's use of the word "uphold"

generally supports Division One's interpretation.

      We often use the words "uphold" and "affirm" interchangeably, indicating

agreement with a lower court's decision. An appellate court may "uphold" the

decision of a lower court, even when a lower court does not rule on the merits. See

Phoenix Dev., Inc. v. City of Woodinville, 171 Wn.2d 820, 825, 256 P.3d 1150

(2011) ("uphold[ing]" the city's decision to dismiss a land use petition for failing

to meet the statutory criteria for relief); Rasmussen v. Emp 't Sec. Dep 't, 98 Wn.2d

846, 848, 658 P.2d 1240 (1983) (affirming the commissioner of the employment

security department's decision to "uph[o]ld" the appeal tribunal's dismissal of

petitioner's claim as untimely). 3

       The ordinary meaning of the word "uphold" also supports this interpretation.

See WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2517 (2002) (uphold

civil rights case); Andersen v. Gold Seal Vineyards, Inc., 81 Wn.2d 863, 865, 505 P.2d
790 (1973) (similarly holding in a tort case).
        3
          Another example of this appears in the similar LUPA case of Knight v. City of
Yelm, where Justice J.M. Johnson states on two separate occasions, "I would affirm the
decision of the Court of Appeals dismissing Knight's LUPA petition for lack of
standing," 173 Wn.2d 325, 349, 267 P.3d 973 (2011), (J.M. Johnson, J., dissenting)
(emphasis added), and "I would uphold the Court of Appeals in dismissing Knight's
LUPA petition for lack of standing," id. at 352 (J.M. Johnson, J., dissenting) (emphasis
added).

                                          -5-
Durland, et al. v. San Juan County, et al., 89293-8 (Stephens, J. Concurrence)



generally means "to give support to"). An appellate court may "give support to" a

lower court's ruling on non-merit-based arguments. For these reasons, I believe

Division One is correct in interpreting RCW 4.84.370 as not requiring a ruling on

the merits where a party may be awarded attorney fees when it prevails on

procedural grounds.

      Furthermore, the legislature's use of the passive voice, "is upheld," reflects

the different role played by local government in land use appeals.          Land use

appeals often involve at least three parties-local government, a party challenging

the decision, and a party benefiting from the decision. Local government plays

two roles in these proceedings, that of a decision-maker and that of a litigant.

While local governments are often involved in land use challenges as necessary

parties, the private parties that benefit from the land use decision often drive the

litigation defending the decision. See, e.g., Prekeges, 98 Wn. App. 275 (where US

West Wireless, a party aligned with King County who benefited from the county's

land use decision, was the party advancing arguments to the court).               The

legislature's decision to use the passive voice may be a reflection of this dual role,

where the local government's own decision is upheld by a court while the private

parties present arguments to the court.




                                          -6-
Durland, et al. v. San Juan County, et al., 89293-8 (Stephens, J. Concurrence)



      Lastly, the majority's interpretation gives local governments the perverse

incentive to advance weaker, merit-based arguments in favor of stronger, non-

merit-based arguments just to recover attorney fees.           A local government's

strongest argument in a LUPA challenge may be one that does not reach the merits

of a case, e.g., where a party files a procedurally invalid challenge, lacks standing,

or files after the statute of limitation has run. Under the majority's interpretation, a

local government does not recover attorney fees when it successfully defends a

LUP A challenge for procedural invalidity. This interpretation leads to strange and

illogical results.   For example, a city may be aligned with private parties in

defending a land use decision. However, if a city succeeds with non-merit-based

arguments, the private parties aligned with the city may benefit from the city's

argument and receive fees, but the city is left with the cost of litigating a

procedurally invalid claim. This is an unjust result not intended by the statute.

       The majority's attempt to reconcile the divisional split does not address the

conflict in the Court of Appeals and ignores the substance of the debate. To

resolve the conflict, RCW 4.84.370 must be interpreted as treating all parties the

same. I wholly agree with Division One that a party does not require a ruling on

the merits to recover fees. Because the court properly awarded Heinmiller attorney

fees, however, I concur with the majority's result.



                                           -7-
Durland, et al. v. San Juan County, et al., 89293-8 (Stephens, J. Concurrence)




                                          -8-
