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08 - Wal-Mart's Motion to Dismiss1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ~~r ~- FED 0 ~ 206 01~-~fNS DAV1fS, P.S. SUPERIOR COURT OF WASHINGTON FOR THURSTON COUNTY Yelm Commerce Group l'Iallltlff/PetlttOner, vs. NTO, 06-2-00103-3 City of Yelm, et ai. CIVIL NOTICE OF ISSUE (N~IS) Defendant/Res ondent. Clerk's Action Re uired TO: TkICTRSTON COUNTY CLERK and to all other parties listed llez-eiul: PLEASE TAKE NOTICE that an issue of law in this case will be heard on the date below and the Clerk is directed to note this issue on the calendar checked below. FRIDAY, March 10 20 06 , 9:00 a.m. MOTION CALENDAR Bench/Judge Copies: Deliver to Superior Court, Building 2, Rm. 150 Filing Deadlines: Friday noon, preceding Friday noted, pursuant to LCR 5(b)(1) & (2). Confirmation: Ismail to sivlawG~co.thurston.w a.us. fax to (360) 753-4033, or call (360) 786-5423 by 12:00 noon three court days prior to the hearing date [LCR 16(fj(2)]. Court Address: 2000 Lakeridge Drive SW, Building 2, Olympia, WA 98502. ASSIGNED JUDGE: Dept. 1 -Judge Daniel J. Berschauer ^ Dept. 4 -Judge Wm. Thomas McPhee ^/ Dept. 2 -Judge Paula Casey ~ Dept. 5 -Judge Richard D. Hicks Dept. 3 -Judge Richard A. Strophy ~ Dept. 7 -Judge Gary R. Tabor CIVIL MOTIONS I'ItOBATE O Default O Discovery ^ Petition for Letters of Administration/Guardianship ^ Summary 7udgment/Dismissal ^ Petition for Probate of Will and Letters Testamentary ^ Change Venue ^ Petition to Set Aside Property in Lieu of Homestead ^ Continue Trial ^ Annual Report of Guardianship O Show Cause ^ Final Account ^ Present Order O Other: ^ TRO/Preiiminary injunction © Contested Probate Motion ^/ Other: Land Use Ptn/Mtn to Dismiss /~~ ^ G:1WAL-MART1SegiumSPLDGSWOTEMOTSON03.PDF CIVIL NOTICE OF IS SL1E -1 of 2 ~ ~/ ~~ ~ , ~ ,[1/] M:IwpdocladminlSTlformslntislwordSNotice of Issue-Civil.doc, 12/28101 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 281 Certificate of Service P , •EN~ING PARTY: I certify that on Fetruary 9 , 20 06, I O d~osited Sign: / "r~ in the United States mail, ~ delivered through a legal print/TypeN e: Courtney E. Flora rraessenger service, O personally delivered, a copy of this 29847 document to the attorneys} of record far ~ plaintiff/ W S$A # (if petitioner L~ Defendant/Respondent ,Q All Other parties attorney) of Rec 701 First Avenue, Ste. 7220 .,~ A Address: QI' ~o Cityl5tate/Zip: Seattle, WA 98104 Attorney for f/petitioner Attorney for: Respondents ® dant/Respondent 206-812-3388 D Other: Telephone: Date: February 9, 2006 LIST NAMES, ADDRESSES & TELEPHONE NUMBERS OF ALL PARTIiES REQUIl2rNG NOTICE Name: Matthew B. Edwards Name: Ryan Vancil Attorney for: Clty Of Yelm wssA #: 18332 Address: Owens Davies, PS, P. O. Box 187 Olympia, WA 98507 Telephone: 360-943-8320 Name: Pacland, Inc. Attorney for• NSA wsBA #• NIA Address: 606 Columbia Street NW, Ste. 106 Olympia, WA 98501 (Via US Mail} Attorney for• Yelm Commerce Group wsBA #: 31913 Aaaress; Bricklin Newman Dold 1001 4th Ave., S#e. 3303, Seattle, WA ~ro~o,,,,,,,, o. 206-264-8600 Name: Attorney for: wSBA #: Telephone• 786-9500 Telephone: Name: Name• Attorney for: Attorney for: WSSA #: wSBA #: Address: Address: C1VIL NOTICE OR T,5 SUE _ 2 of 2 G:1WAL-MART1SegiumlPLDGSW OTEMD710N~3.PrJF M:lwpdocladminlSTlfarmslntislwordlklotice of Issue-~ivil,doc, 12128!01 1 2 3 4 5 6 7 8 9 10 li 12 13 14 15 16 17 18 19 20 z1 22 23 24 2s 26 27 2s Hearing is set: Date: March 10, 2006 Time: 9:00 a.m. Judge: Paula Casey FEB 0 9 2006 ®WENS DAMES, P,So IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON 1N AND FOR THURSTON COUNTY YELM COMMERCE GROUP, a Washington non-profit corporation, Petitioners, No. 06-2-00103-3 WAL-MART'S MOTION TO DISMISS VS. . CITY OF YELM; PACLAND, INC.; and WAL- MART STORES, INC., Respondents. I. RELIEF REQUESTED Wal-Mart Stores, Inc. ("Wal-Mart") requests that the Court dismiss this action pursuant to Civil Rule ("CR"} l2(b){1). Wal-Mart also joins in the motion to dismiss filed by the City of Yelrn ("City"}. The Land Use Petition was not timely served ox1 the City. Accordingly, the Court lacks subject matter jurisdiction over this action. This action must be dismissed. II. STATEMENT OF FACTS Wal-Mart joins and incorporates by reference the Statement of Facts contained in the City ~f Yelrn's Motion to Dismiss Land Use Petition ("City's Motion"). wAL-MART'sMOTIONTODISMISS 1 MCCULLOUGH HILL PS .:1WAL-MAR31YeImVvtotion to Dismiss.doe ^ 7~1 F''ift~l s~Verilie, Slllte 722 ~-+--J ~ nn/] Seattle, Washington 98104-7042 ~LJ ~`~J/J dLlr-~ (~-'j/ 206.812.3388 206.812.3389 fax 1 2 3 4 s 6 s 9 to Al 12 13 14 15 1b 17 18 19 20 21 22 23 24 25 26 27 28 III. STATEMENT OF ISSUES The issue presented in this motion is whether the Court should dismiss this action for lack of subject matter jurisdiction because the Land Use Petition was not timely served on the City. IV. EVIDENCE RELIED UPON This motion relies on the pleadings and papers on file in this action and the Declaration of Ron Harding, Declaration of Agnes Bennick, and Declaration of Shelly Badger, which were filed by the City concurrently with the City's Motion. V. AUTHORITY CR 12{b}(1) provides that a parry may move to dismiss based on lack of subject matter Jur1ShcCtlOn. The jurisdiction of the Court in this action is limited by the statutory provisions of the Land Use Petition Act ("LUPA"). When reviewing an administrative decision, the superior court acts in its limited appellate capacity. Union Bay Preservation Coalition v. Cosmos Dev. & Admin. Corp., 127 Wn. 2d 614, 617, 902 P.2d 1247 (1995}. All statutory procedural requirements must be met before this appellate jurisdiction is properly invoked. Skagit Surveyors and Eng'rs, LLC v. Friends of Skagit County, 135 Wn. 2d 542, SSS, 958 P.2d 962 (1998} (citing Fay v. Northwest Airlines, Inc., 115 Wn. 2d 194, 197, 796 P.2d 412 (1990)). 4verhulse Assn v. Thurston County, 94 Wn. App. 593, 596-597, 972 P.2d 470 {1999). Under LUPA, "[a] land use petition is barred, and the court may not grant review, unless the petition is timely filed with the court and timely served" within 21 days of the date of the challenged decision. RCW 36.70C.040 (emphasis added). Well established principles of statutory interpretation dictate that "When statutory language is plain and unambiguous, the statute's meaning must be derived from the wording of the statute itself." [Footnote omitted.] "If the language of a WAL-MART'S MOTION TO DISMISS 2 MCCULLOUGH HILL PS L:1WAL-MARnYeImLMation io Qismiss.dac 701 Fifth Avenue, Suite 7220 Seattle, Washington 9$104-7042 206.812.3388 206.812.3389 fax statute is clear on its face, courts must give effect to its plain meaning and should assume the Legislature means exactly what it says." [Footnote omitted.] "In ascertaining the legislative intent in the enactment of a statute, the state of the law prior to its adoption must be given consideration. But where ... a statute is plain and unambiguous, it must be construed in conformity to its obvious meaning without regard to the previous state of the common law." [Footnote omitted.] This court is "obliged to give the plain language of a statute its full effect, even when its results may seem unduly harsh." Chelan County v. Nykreim, 146 Wn.2d 904, 926, 52 F.3d 1 (2002). Consistent with these principles, the Washington Supreme Court has to 11 12 i3 14 15 16 17 1s 19 20 21 22 23 2a zs 26 27 2s repeatedly required parties to strictly adhere to the statutory procedures provided under LUPA for Ming and serving a land use petition. In Nykreim, for example, we held that the challenge to a boundary line adjustment was time-barred under LUPA because the petitioner failed to appeal the land use decision within 21 days. We found this strict adherence to statutory time limits consistent with the "'strong public policy supporting administrative finality in land use decisions."' Nykreim, 146 Wn.2d at 931 (quoting Skamania County v. Columbia River Gorge Comm'n, 144 Wn.2d 30, 49, 26 P.3d 241 (2001)). Conom v. Snohomish County, 155 Wn.2d 154, 159, 118 P.3d 344 (2005). A long line of Supreme Court and Appellate Court decisions requires strict compliance with the filing and service requirements of LUPA, including: Samuel's Furniture, Inc. v. Dept of Ecology, 147 Wn.2d 440, 54 P.3d 1194, 63 P.3d 764 (2002) (holding that the Department of Ecology was barred from challenging a city's land use decision because it failed to file a land use petition in superior court within 21 days); Lakeside Indus. v. Thurston County, 119 Wn. App. 886, 900, 83 P.3d 433 (finding that a superior court did not have jurisdiction to hear a land use petition where the petition was not filed within 21 days), review denied, 152 Wn.2d 1015, 101 P.3d 107 (2004}; Witt v. Port of Olympia, 126 Wn. App. 752, 109 P.3d 489 (2005) (finding that a petitioner did not satisfy the requirements of RCW 36.700.040(2) because it failed to correctly serve a party); Overhulse Neighborhood Assn v. Thurston County, 94 Wn. App. 593, 972 P.2d 470 (1999) (finding that a superior court properly dismissed a land use petition where a party improperly served the petition on a party identified in RCW 36.70CA40}; Citizens to Preserve Pioneer ParkLLC v. City of Mercer Island, 106 Wn. App. 461, 24 P.3d 1079 (2001) (finding that a LUPA petition was not barred under RCW 36.700.040(2) where the petitioner failed to serve a party who had abandoned its appeal). See Conom, supra, 155 Wn.2d at 159. WAL-MART'S MOTION TO DISMISS L:1WAL-MARTYe1m5Motion to bismiss.doc MCCULLOUGH HILL PS 701 Fifth Avenue, Suite 7220 Beattie, Washington 98104-7042 206.812.3388 206.812.3389 fax 2 Substantial compliance with LUPA's service requirement is insufficient. San Juan Fidalgo v. Slragit County, 87 Wn. App. 703, 943 P.2d 341 (1997). In San Juan Fidalgo, the petitioner delivered its land use petition to the county auditor's office 20 minutes after normal business hours on the last day of the 21-day period. The Court held that service was untimely and dismissed the action, rejecting the petitioner's claim that the doctrine of substantial compliance excused its late service. The Court reasoned: 10 11 12 13 14 is 16 17 18 19 20 zl zz 23 24 25 26 27 28 In order for the doctrine of substantial compliance to apply, there must have been some actual compliance with the relevant statute, because substantial compliance is "actual compliance" with the "substance" of a statutory requirement. City of,Seattle v. Public Employment Relations Commission (PERC), 116 Wn.2d 923, 928, 809 P.2d 1377 (1991); see also Petta v. Department of Labor & Indus., 68 Wn. App. 406, 409-10, 842 P.2d 1006 (1992) ("Noncompliance with a statutory mandate is not substantial compliance"} (citation omitted). The substance of the statutory requirement at issue in this. case is timely service. The PERC court ruled that the doctrine of substantial compliance does not apply to statutorily established time limits for accomplishing acts: It is impossible to substantially comply with a statutory time limit ... It is either complied with or it is not. Service after the time limit cannot be considered to have been actual service within the time limit. We therefore hold that failure to comply with a statutorily set time limitation cannot be considered substantial compliance with that statute. PERC, 116 Wn.2d at 928-29 {emphasis ours). San Juan Fidalgo, supra, 87 Wn. App. 711-712; see also Overhulse, supra, 94 Wn. App. at 598 ("A land use petition is barred, and the court may not grant review, if timely service is not completed in accordance with LUPA's procedures. RCW 36.70C.040(2). This explicit statutory language forecloses the possibility that the doctrine of substantial compliance applies." {Emphasis in original}.) WAL-MART'S MOTION TO DISMISS L:1WAL-MART1YeIm4Mation to 6ismiss.doc MCCUI,LO_U_GH HILL, PS 701 fifth Avenue, Suite 7220 Seattle, Washington 98104-7042 206.812.3388 206.812.3389 fax 1 2 3 4 5 s 7 8 9 10 11 l2 I 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ', 27 is In this case, Petitioner Yelm Commerce Group failed to timely serve the City. Rather, Yelm Commerce Group did not serve the City until the day after the statutory 21-day period for service had expired. See City's Motion; Declaration of Ron Harding, Declaration of Agnes Bennick, and Declaration of Shelly Badger. Accordingly, the Court lacks jurisdiction. This action must be dismissed. VI. CONCLUSION The Land Use Petition Was not timely served on the City. The Court lacks subject matter jurisdiction over this action. This action must be dismissed pursuant to Civil Rule 12(b)(1}. DATED this ~ day of February, 200b. MCCULLOUGH HILL PS By: John. C. ullough, WSBA #12740 Courtney E. Flora, WSBA #29847 Attorneys for Respondents Wal-Mart Stores, Inc. and PacLand, Inc. WAL-MART'S MOTION TO DISMISS L:1WAL-MAR11YeImlMotion to Dismiss.8oc 5 MCCULLOUGH HILL, PS 701 Fifth Avenue, Suite 7220 Seattle, Washington 98104-7042 206.812.3388 206.812.3389 fax