 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ROBIN JONES, in his individual
capacity; and ROSEMARY                          i     No. 73738-4-1
QUESENBERRY, in her individual
capacity,                                             DIVISION ONE

                      Appellants,           ]         UNPUBLISHED OPINION                     o



              v.                            ;
                                                                                       -F»,   C3 -H~r-,
THE RENTON SCHOOL DISTRICT                  j
NO. 403, a Washington municipal             ]
corporation,                                ]
                                                      FILED: May 9, 2016
                      Respondent.           '



       Trickey, J. — Robin Jones and Rosemary Quesenberry appeal the order

dismissing their suit challenging the decision by the Renton School District No. 403

to sell certain real property. Because the District is generally authorized to sell real

property under RCW 28A.335.120, and because the District's failure to comply

with the statutory notice requirements did not contravene the statute's underlying

policy, we affirm.

                                        FACTS

       The material facts are undisputed.           The District owns approximately 21

acres of undeveloped land near the Tiffany Park Elementary School in the city of

Renton. It acquired this land (the Tiffany Park parcel) in 1973 with the intent to

construct a school.


       In 2012, the District proposed the sale of the Tiffany Park parcel.             It

published a notice stating its intention to sell the property and designating a date

for a public hearing. The District held the public hearing on November 27, 2012.
No. 73738-4-1 / 2


At the hearing, the District heard testimony from several members of the public,

including Jones, who owns property adjacent to the Tiffany Park parcel. Jones

expressed objections to the sale.

       Following this hearing, the District's board of directors held a meeting. After

considering the evidence and testimony presented at the public hearing, the board

adopted a resolution authorizing the District to proceed with the sale.

       On May 22, 2013, the District entered into a purchase and sale agreement

with a private entity that plans to build housing on the property.

       The District later discovered a procedural error in its notice. Instead of

publishing the notice for two consecutive weeks "in a legal newspaper with a
general circulation in the area in which the school district is located" as required by
RCW 28A.335.120(2), the District had published the notice for one week in a
Renton area newspaper and one week in a Snoqualmie area newspaper.

       The District decided to publish a second notice and hold a supplemental

public hearing. It published the second notice for two consecutive weeks in a
Renton area newspaper. It held the supplemental public hearing on October 29,
2014. At this hearing, the District again heard testimony from members of the
public regarding the proposed sale. Jones' attorney appeared at the hearing and
expressed objections on Jones' behalf.
       Following the supplemental public hearing, the board held another meeting.
After considering theevidence and testimony presented at the supplemental public
hearing, the board voted toconfirm the resolution authorizing thesaleof the Tiffany
 Park parcel.
No. 73738-4-1 / 3


        In December 2014, Jones commenced this action against the District. He

requested a declaratory ruling that the District did not comply with RCW

28A.335.120 before it entered into the May 22, 2013 purchase and sale

agreement, and thus, the sale was invalid. He also requested a writ prohibiting the

sale.

        In May 2015, the board approved an amendment to the purchase and sale

agreement, allowing additional time for the sale to close. The sale has not yet

closed and is contingent upon resolution of this litigation.

        That same month, Jones moved to add Quesenberry as a plaintiff.

Quesenberry also owns land adjacent to the Tiffany Park parcel and objects to the

sale. The trial court granted this motion.

        Thereafter, the District moved for summary judgment. In June 2015, the

trial court heard argument on the matter. The court concluded that although there
had not been "full compliance with all of the technical requirements of RCW
28A.335.120," the purchase and sale agreement was not void.1 Accordingly, it
granted the District's motion and dismissed the case. Jones and Quesenberry
subsequently moved for reconsideration, which the court denied.
        Jones and Quesenberry appeal.

                                     ANALYSIS

        Jones and Quesenberry argue that the trial court erred in dismissing on
summary judgment their declaratory judgment action challenging the District's
proposed sale of the Tiffany Park parcel. They contend that the District's failure to


1 Clerk's Papers at 313.
No. 73738-4-1 / 4


follow the procedural notice requirements of RCW 28A.335.120(2), and its failure

to satisfy the underlying policy of the statute, renders the purchase and sale

agreement ultra vires and unenforceable. We disagree.

      "This court reviews summary judgment de novo." Lane v. Port of Seattle,

178 Wn. App. 110, 117, 316 P.3d 1070(2013). review denied. 180Wn.2d 1004,

321 P.3d 1207 (2014). Summary judgment is appropriate only when there is no

genuine issue as to any material fact and the moving party is entitled to judgment

as a matter of law. CR 56(c).

       "The construction of statutes is [also] a question of law reviewed de novo."

Lane, 178 Wn. App. at 117. "Our purpose when interpreting a statute is to

determine and enforce the intentofthe legislature." Rental Housing Ass'n of Puqet

Sound v. City of Pes Moines, 165 Wn.2d 525, 536, 199 P.3d 393 (2009). We first

look to the statute's plain language. State v. Armendariz, 160 Wn.2d 106, 110,
156 P.3d 201 (2007). If the statute's meaning is plain on its face, the inquiry ends.
Armendariz, 160 Wn.2d at 110.

       In South Tacoma Way, LLC v. State, the Supreme Court recognized a

distinction between government acts that are "ultra vires" and acts that suffer from
"some procedural irregularity." 169 Wn.2d 118, 122-23, 233 P.3d 871 (2010).
"Ultra vires acts are those performed with no legal authority and are characterized
as void on the basis that no power to act existed, even where proper procedural
requirements arefollowed. Ultra vires acts cannot be validated by later ratification
or events." 169 Wn.2d at 123. "Conversely, acts done without strict procedural or

statutory compliance are subject to different review. Those acts may or may not
No. 73738-4-1 / 5


be set aside depending on the circumstances involved." 169 Wn.2d at 123.

       In South Tacoma Way, the Washington State Department of Transportation

sold surplus property to an abutting landowner. At the time of the sale, several

private individuals owned property that abutted the land. By mistake, no notice

was given to the other abutting property owners. Consequently, the Department

followed a statutory procedure for the sale of property to a single interested party,

rather than the procedure applicable when multiple landowners abut a property.

169 Wn.2d at 120-21.      Following the sale, one of the other abutting property

owners sued to have the sale declared void. 169 Wn.2d at 121.

       The Supreme Court rejected this claim. It held that because the State was

generally authorized to sell surplus property, the sale was not ultra vires. 169
Wn.2d at 123. The court then stated the issue was "whether failure to follow

procedural requirements renders the contract or sale void." 169 Wn.2d at 123.
Noting that the State committed no substantive statutory violation, and that the
procedural failure did not contravene the policy underlying the statute—to prevent
fraud and collusion, the court concluded that the State's violation of the statutory

procedures did not render the contract automatically illegal and unenforceable.
169Wn.2dat124.

       This court reached a similar conclusion in Lane v. Port of Seattle, 178 Wn.

App. 110. In Lane, taxpayers brought a declaratory judgment action seeking to
invalidate the Port's purchase ofa rail corridor. 178Wn. App. at 116. They argued
that the Port's acquisition was ultra vires, because the port commission failed to
comply with the statutory requirement for a formal resolution prior to the purchase.
No. 73738-4-1 / 6


Instead, the port commission adopted the formal resolution after the purchase

closed. 178 Wn. App. at 123.

       Relying on South Tacoma Way, this court rejected the taxpayers' argument.

It explained that the Portwas "generally authorized" to act on real estate purchases

and had specific authority to acquire a rail line. 178 Wn. App. at 124 (internal
quotation marks omitted). Additionally, the Port acted in accordance with the
underlying policy of the statute. "The statutory requirement for a formal resolution
by the port commission is intended to ensure careful deliberation about whether a
proposed acquisition of rail facilities outside the district is genuinely necessary to
link up to an interstate rail system." 178 Wn. App. at 124. The Port acted in
accordance with that policy by addressing the purchase "numerous times in public
meetings" before the deal was finalized. 178 Wn. App. at 124. Accordingly, the
commission's failure to adopt a formal resolution until after the transaction closed
did not render the purchase ultra vires. 178 Wn. App. at 125.
       Here, the District has general authority to sell real property under RCW
28A.335.120.2 Thus, the District's act is not ultra vires. Rather, like in South
Tacoma Way and Lane, the issue in this case is whether the failure to follow the

procedural notice requirements of RCW 28A.335.120 renders the purchase and
sale agreement unenforceable. We conclude that it does not.
       RCW 28A.335.120(2) provides notice requirements governing the sale of
school district property:


2RCW 28A.335.120(1) states: "The board ofdirectors of any school district ofthis state
may ... (a) [s]ell for cash, at public or private sale, and convey by deed all interest of the
district in orto any of the real property of the district which is no longer required for
school purposes. . . ."
No. 73738-4-1 / 7


      When the board of directors of any school district proposes a sale of
      school district real property pursuant to this section and the value of
      the property exceeds seventy thousand dollars, the board shall
      publish a notice of its intention to sell the property. The notice shall
      be published at least once each week during two consecutive weeks
       in a legal newspaper with a general circulation in the area in which
      the school district is located. The notice shall describe the property
      to be sold and designate the place where and the day and hour when
      a hearing will be held. The board shall hold a public hearing upon
      the proposal to dispose of the school district property at the place
      and the day and hour fixed in the notice and admit evidence offered
      for and against the propriety and advisability of the proposed sale.

       The legislature added this notice provision in 1979. At the same time, it
eliminated a provision requiring a majority of the voters of the district to approve

the sale of school district property. Laws of 1979, 1st Ex. Sess., ch. 16 §1.
       It is undisputed that the District failed to comply with these statutory

requirements when it published the first notice and held the first public hearing.
The first notice did not comply with the statute because it was not published "'at
least once each week during two consecutive weeks in a legal newspaper with a
general circulation in the area in which the school district is located.'"3 Instead, it
was published for only one week in a legal newspaper with a general circulation in
Renton and for one week in a legal newspaper with a general circulation in

Snoqualmie.

       The District argues that it later corrected this error and complied with the
statute by publishing the second notice, holding the supplemental public hearing,
and reconfirming the resolution authorizing the sale. Jones and Quesenberry
disagree. They contend that the notice and hearing on the proposed sale must
occur before the District enters into a binding contract to sell the property. Jones


3 Br. of Resp't at 6 (quoting RCW 28A.335.120(2)).
                                           7
No. 73738-4-1 / 8


and Quesenberry reject the District's assertion that a binding purchase and sale

agreement is a proposed sale.

      We need not determine whether the second notice and hearing complied

with the requirements of RCW 28A.335.120(2). Even if we accept Jones and
Quesenberry's contention that both notices and hearings failed to strictly comply
with the statutory requirements, we nonetheless reject their argument that the
purchase and sale agreement must be set aside.
       Here, as in South Tacoma Way and Lane, the District's procedural failures
did not contravene the underlying policy of the statute. The legislature adopted
RCW 28A.335.120(2) to replace the public vote. The purpose of this statute is to
provide an opportunity for community members to be heard about the proposed
sale and for the District to admit and consider evidence offered for and against the
propriety and advisability ofthe proposed sale.
       Notwithstanding the District's technical violations of the statute, the District
twice notified the community about the proposed sale and presented the
community with an opportunity to voice concerns about the sale. The District
admitted evidence from community members at the first public hearing and again
at the supplemental public hearing. The board twice considered the evidence and
weighed the propriety and advisability of the sale. Under these circumstances, we
 conclude that the District's violation of the statute does not render the purchase
 and sale agreement unenforceable.
        In its response brief, the District argues that Jones and Quesenberry lack
 standing. Because we can affirm on the merits, we do not address this issue.


                                           8
No. 73738-4-1 / 9


      The District also argues that we should dismiss this case as frivolous, and

it requests sanctions and compensatory damages pursuant to RAP 18.9(a).

Because this case presents debatable issues about the District's compliance with

Washington law and the validity of a sale of property, we reject these arguments

and deny the District's request for attorney fees.

       Affirmed.




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WE CONCUR:




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