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11 - Reply Brief re Timely Service & Bennick Dec1 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 © EXPEDITE ® Hearing is set Date: March 10 2006 Time: 9:00 a.m. Judge/Calendar: Paula Cased .._ SUPERIOR COURT OF WASHINGTON FOR THURSTON COUNTY YELM COMMERCE GROUP, Petitioner, vs. CITY OF YELM; PACLAND, INC.; and WAL-MART STORES, INC. ~ NO. 06-2-00103-3 CITY OF YELM' S REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO EFFECT TIMELY SERVICE Respondents. I. INTRODUCTION The City of Yelm submits this reply brief in support of its motion io dismiss for failure to effect timely service. II. ANALYSIS A. The Land Use Petition Act lainl rovides that the assa e of an ordinance tri ers the rennin of the 21 da eriod within which a etition must file a Land Use Petition. The Land Use Petition Act states, in the clearest possible terms, that the 21 day deadline within which the petitioner was obligated to serve the City of Yelrn with its Land Use Petition began to run upon the City Council's passage of a Resolution rejecting the petitioner's appeal: (1) Proceedings for review under this chapter shall be commenced by filing a land use petition in superior court. CITY OF YELM'S REPLY I3RIEF IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO EFFECT TIMELY SERVICE - 1 C:1141MBE1YeImlPldgsll2espon5e Dismiss Portion of Appea] Mot.wpd OWENS DAMES, P.S. 9.26 - 24th Way SW • P. O. Box 187 Olympia, Washington 98507 Phone: (360) 943-8320 Facsimile: (360) 943-6150 1 2 3 4 5 6 7 8 9 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 {2) Aland use petition is barred, and the court may not grant review, unless the petition is timely filed with the Court and timely served on the following persons who shall be parties to the review of the land use petition: {a) The local jurisdiction, which for purposes of the petition shall be the jurisdiction's corporate entity and not an individual decision maker or department; {3) The petition is timely if it is filed and served on all parties listed in subsection (2} of this section within twenty-one days of the issuance of the Iand use decision. {4) For the purposes of this section, the date on which a land use decision is issued is: (a) Three days after a written decision is mailed by the local jurisdiction or, if not mailed, the date on which the local jurisdiction provides notice that a written decision is publicly available; (b) If the land use decision is made by ordinance or resolution by a legislative body sitting in aquasi-judicial capacity, the date the body passes the ordinance or resolution; (5} Service on the local jurisdiction must be by delivery of a copy of the petition to the persons identifted by or pursuant to RCW 4.28.080 to receive service of process.... (Emphasis added}. The City of Yelm passed Resolution No. 460 on December 28, 2005. The City of Yelm had no duty to provide the Yelm Commerce Group with notice of the passage of this Resolution decision in order to start LUPA's 21 day appeal period running. Samuel's Furniture, Inc. v. Department ofEcology, 147 Wn. 2d 440, 462, 54 P.3d 1194 (2002} {"LUPA does not require that a party receive individual notice of a land use decision in order to be subject to the time limits for filing a LUPA petition.") The Yelm Commerce Group fully understood that it had the obligation to file and serve its Land Use Petition upon the City of Yelm within 21 days from the date of the passage of City OWENS DAVIES, P.S. 926 - 24th Way SW • P. O. Box 187 CITY OF YELM S REPLY BRIEF IN SUPPORT OF MOTION TO Olympia, Washington 98547 DISMISS FOR FAILURE TO EFFECT TIMELY SERVICE - 2 Phone: (360) 943-8320 C:1145MHE4Ye1m1PldgslResponce Dismiss Portion ofAppea] Mot.wpd Facsimile: (360) 943-6154 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2I 22 23 24 25 26 27 28 Council's Resolution No. 460. That is why its counsel instructed its legal messenger to serve the City with its petition by no later than January 18, 2006. However, the Yelm Commerce Group chase to wait until the last possible day to complete its Land Use Petition and provide it to a legal messenger for service. By waiting until the very last day, the Yeim Commerce Group took the risk that service of the petition would not be timely effected, such that the Court would not obtain jurisdiction to hear their appeal. Petitioner did not serve its Land Use Petition upon the City of Yelm until January 19, 2006, the twenty-second day after the passage of Resolution No. 460. Therefore, this Court is without jurisdiction to hear the petition. B. In response to this motion, Valentine Fyrst, an individual alig_ned,.,with the Yelm Commerce Grou asked the Yelm Cit Clerk to mail the Yelm Commerce Grou a co of Resolution No. 460. The Court should re'ect this des erate ahem t to manufacture an excuse for/defense to the Yelm Commerce Grou 's failure to timel effect service. The Yelm Commerce Group did not timely serve the City with the Yelm Commerce Group's land use petition. Therefore, on February 3, 200b, the City of Yelm timely filed this motion to dismiss. In response to this motion, Valentine Fyrst, one of the individuals who appealed the Hearing Examiner's decision to the Yelm City Council and who was represented by Bricklin, Newman, Dold, LLP in connection with that appeal, approached Agnes Bernick, the Yelm City Clerk. Bernick Declaration, ¶~ 3-4. Mr. Fyrst requested that Ms. Bernick provide him a copy of Resolution No. 460. Mr. Fyrst also asked Ms. Bernick to mail a copy of the Resolution to the Yelm Commerce Group at an address he provided to her. Id., ~( 5. As a courtesy to Mr. Fyrst, and solely in response to his request, Ms. Bernick provided Mr. Fyrst a copy of the Resolution, and also mailed a copy of the Resolution to the Yelm Commerce OWENS TaAVIES, P.S. 926 - 24th Way SW • P. O. Box 187 CITY OF YELM S REPLY BRIEF IN SUPPORT OF MOTION TO Olympia, Washington] 98507 DISMISS FOR FAILURE TO EFFECT TIMELY SERVICE - 3 Phone: (360) 943-8320 C:II41M$$1Xelm\P[dgslltesponse Dismiss Portion of ApAea] Moi.wpd Facsimile: (3G0} 943-6150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2I 22 23 24 25 26 27 28 Group. Ms. Bernick did not intend the mailing to constitute "notice" that the City of Yelm was not required to give. Id., ¶ 6. in effect, it appears that the Yelm Commerce Group tricked the City into "mailing" a copy of Resolution No. 460 to the Yelm Commerce Group in order to "setup" an argument that LUPA's 21 day appeal period did not begin to run until the date of the "mailing." Therefore, the Court should decline to even consider any argument by the Yelm Commerce Group based upon that "mailing." C. Even if the Court considers this "maiiin " it should still hold that RCW 36.700.040 4 b a lies. Even ifthe Court considers this "mailing," it should still hold that RCW 36.70CA40(4){b} applies. RCW 36.70C.040(4)(a) does not apply. First, the Court of Appeals has squarely held that the caption of the decision document determines which of these two sections applies. Hale v. Island County, 88 Wn. App. 764, 769, 946 P.2d 1192 (1997) (in order to determine whether RCW 36.70C.040(4)(a) or (b) applies, the court should Look to the caption of the document it is being asked to review). Here, petitioner is seeking judicial review of"City of Yelm Resolution No. 460." Therefore, RCW 36.700.040(4}(b) applies. Second, the Court should apply the more specif c of two potentially applicable sections. Galbert H. Moen Co. v. Island Steel Erectors, Inc., 128 Wn. 2d. 745, 760, 912 P.2d 472 (1996). Here, RCW 36.700.040{b} is more specihc. RCW 36.700.040{4}(b) applies only to that subset of written decisions that constitute "ordinances or resolutions passed by a legislative body in a quasi judicial capacity." Because RCW 36.70C.040(b) is more specific, the Court should hold that it applies. CITY OF YELM'S REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO EFFECT TIMELY SERVICE - 4 C-5145MBE1Yelm1P]dgsUtesponse Dismiss Portion ofgppeal Mot.wpd OWNS DAVIES, P.S. 926 - 24th Way SW • P. O. Box 187 Olympia, Washington 98507 Phone: (360) 943-8320 Facsimile: (360) 943-6350 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 ; 18 19 20 21 22 23 24 2S 26 27 28 Third, the Court must interpret this statute so that every portion of it has effect, and none of it is superfluous. Gilbert G. Moen Co., 128 Wn. 2d at 760. Every ordinance or resolution will necessarily be in writing. Therefore, if subsection (a) were to apply to ordinances and resolutions, subsection {b) would be superfluous. Petitioner's claim that subsection (a) applies to ordinances and resolutions therefore cannot be correct. Fourth, the purpose of the Land Use Petition Act is to provide for expedited appeal procedures in order to provide consistent, predictable, and timely judicial review. RCW 36.700,010. But under petitioner's construction of this statute, no landowner could ever rely on the finality of a land use decision made by ordinance or resolution. Under petitioner's construction, a city could always restart the appeal period, weeks or months after the decision had become final, by mailing someone a copy of the ordinance or resolution. Petitioner's construction of this statute would defeat LUPA's purpose of ensuring the finality of land use decisions. In sum, petitioner's suggestion that RCW 36.70C.040(4)(a} applies to the facts ofthis case makes no sense. RCW 36.70C.040(4){b) applies. Pursuant to that section, the petitioner had 21 days within which to effect service of its Land Use Petition on the City of Yelm. Because the petitioner did not effect service of its Land Use Petition upon the City of Yelm within that 21 day period, the Court must dismiss the petition. D. Because the etitioner did not serve its etition u on the Cit of Yelm within 21 da eriod re uired b LUPA the Court is without 'urisdiction to consider its etition and it must be dismissed. Finally, the Court should rej ect petitioner's claim that the Court should excuse petitioner's failure to meet the deadline for effecting service specified by the Land Use Petition Act The Act itself, by its plain language, refutes petitioner's claim: OWENS bAVIES, P.S. 926 - 24th Way SW • P. O. Box 187 CITY OF YELM'S REPLY BRIEF IN SUPPORT OF MOTION TO Olympia, Washington 9$507 DISMISS FOR FAILURE TO EFFECT TIMELY SERVICE - 5 Phone: (3G0) 943-8320 C:1141MBE1YelmlPldgsSResponse Dismiss Portion of AppeaE Mot.wpd Facsimile: (360} 943-6150 1 2 3 4 S 6 7 8 9 IO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2S 26 27 28 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... RCW 36.70C.040(2) {emphasis added). This language completely forecloses any possibility that the doctrine of substantial compliance applies to the Land Use Petition Act. Overhulse Neighborhood Assoc. v. Thurston County, 94 Wn. App. 593, 597, 972 P.2d 470 (1999). Instead, under LUPA, a petitioner must strictly comply with the filing and service of requirements of the Act in order to invoke the trial court's appellate jurisdiction. Witt v. Port of Olympia, 126 Wn. App. 752, 7S6-S7, 109 P.3d 489 (2005); Citizens to Preserve PioneerPark, LLC v. Mercerlsland, i 06 Wn. App. 461, 467, 24 P.3d 1079 {2001). The Court simply does not have any discretion to extend the service deadline. San Juan Fidalgo v. Skagit County, 87 Wn. App. 703, 713, 943 P.2d 341 (1997) (dismissing an appeal served 36 minutes too late, and explicitly rejecting the claim that the Court had the discretion to permit the appeal to proceed on the grounds that the delay caused no harm, while the prejudice caused by dismissal was considerable). This directly on point authority establishes that the Court lacks the power to confer jurisdiction upon itself by "excusing" the petitioner's admitted failure to strictly comply with the service deadline provided for by the Land Use Petition Act. Because the petitioner did not serve its Land Use Petition on the City within the 21 days of the City Council's passage of Resolution No. 460, this Court lacks jurisdiction. Accordingly, the Court must dismiss this case. CITY OF YELM'S REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO EFFECT TIMELY SERVICE - 6 C:It41IvEHEVYelmlPldgslltesponse Dismiss Portion ofAppcal Mot.wpd OWENS DAMES, P.S. 926 - 24th Way SW • P. O. Box 187 Olympia, Washington 98507 Phone: (360} 943-8320 Facsimile: (360) 943-6150 1 2 3 4 5 6 7 8 9 10 11 12 13 14 IS 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED this 3rd day of March, 2006. OWENS DAVID, ~'.S. Attorneys for City of Yelm CITY OF YELM'S REPLY BRIEF 1N SUPPORT OF MOTION TO DISMISS FOR FAILURE TO EFFECT 'T'IMELY SERVICE - 7 G:~I41MB)~1Xe1m1PldgsVtesponse Dismiss Portion ofAppcal Mot.wpd 8332 OWENS ])AVIES, P.S. 926 - 24th Way SW • P. O. Box 187 Olympia, Washington 98507 Phone: {3b0) 943-8320 Facsimile: (360) 943-6150 4 S 6 7 S 9 IO I1 I2 13 14 IS 16 17 IS 19 24 21 22 23 24 2S 26 27 o EXPEDITE ® Hearing is set Date: March 10 2006 Time: 9:00 a.m. fudge/Calendar: Paula Cased-,_ SUPERIOR COURT OF WASHINGTON FOR THURSTON COUNTY YELM COMMERCE GROUP, Petitioner, vs. CITY OF YELM; PACLAND, INC.; and WAL-MART STORES, INC. Respondents. ~ NO.OG-2-OOI03-3 DECLARATION OF AGNES BENNICK IlV SUPPORT OF REPLY BR1;EF IN SUPPQRT OF MOTION TO I.)ISMISS FOR FAILURE TO EFFECT TIMELY SERVICE I . My name is Agnes Bennick. I am aver I S years of age and competent to testify as to all matters set forth herein. 2. I arr~ the C1erk/Treasurer for the City of Yelm. 3. On February 21, 200&, Valentine Fyrst came to see me at my office. 4. Mr. Fyrst is one of the individuals who appealed the Hearing Examiner's decision to the City Council. Mr. Fyrst was represented by Bricklin Newman Dold, LLP, counsel for the Yelm Commerce Group in connection with that appeal. I believe Mr. Fyrst is also a member of the Yelrn Commerce Group, 2g DECLARATION OF AGNES B$NNICK 1N SUPPORT OF REPLY OWENS DAVIES, P.S.. BRIEF IN SUPPORT OF MOTION TO DISMISS FOR 925 - 24th Way SW • P, p. Box 187 Olympia, Washington 98507 FAILURE TO EFFECT TIMELY SERVICE - I Phvne: (360) 943-8320 G11411yBBlYaIm1P]dgslDa Bcr+nick.wpd FacSimiie: (3d0) 943-61 SO S. Mr.1~yrst asked me to a-mail a copy of Resolution 460 to hirn. He also asked me 5 6 7 9 i0 11 I2 13 i4 15 16 I7 i8 19 20 21 22 23 24 25 26 27 28 I I I c to mail a copy of the Resolution to the Yelrn Commerce Group at the following address which he provided: Yelm Commerce Group Po BoX 1616 YeIm, WA 98597 S. In response to Mr. Fyrst's request, I provided him with a hard copy of the Resolution, and I also e-mailed him a copy. I also mailed a copy of the Resolution to the Yelm Commerce Group to the address he specified. 6. The City of Ye1m. was not required to give individualized notice of the passage of Resolution 460 to anyone. I did not xx)ail these notices. in the belief that the City of Yelm had an obligation to provide such individualized notice. I did so solely as a courtesy to Mr. Fyrst, in direct ~ response to his request. I declare under penalty of perJury under the laws of the State of Washington that the foregoing is true and correct. DATED thiso7./~ day of March, 2006, at ,Washington. ~~~ Agn Bernick )ECLARATION OF AGNES BENNICK IN SUPPORT OF REPLY tRIEF IN SUPPORT OF MOTION TO DISMISS FOR AILURE TO EFFECT TIMEI,'Y SERVICE - 2 4!4lMBEIYc1mlPklg,lpcc Btnnick.wpd OWBNS pA'(~iES, P.S. 926 - 24th Way S W • P. O. Box 187 Olympia, Washington 98507 Phone: (360) 943-8320 Facsimile: {360) 943-6150