14 - Wal-Mart's Reply Motion to Dismiss1
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~ Hearing is set:
Date: March 10, 2006
Time: 9:00 a.m.
Judge: Paula Casey
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
IN AND FOR THURSTON COUNTY
YELM COMMERCE GROUP, a Washington
non-proft corporation,
Petitioners,
No. 06-2-00103-3
WAL-MART'S REPLY TO YELM
COMMERCE GROUP'S RESFONSE TO
MOTIONS TO DISMISS
VS.
CITY OF YELM; PACLAND, INC.; and WAL-
MART STORES, INC.,
Respondents.
I. INTRODUCTION
In its response to the motions to dismiss filed by the City of Yelm ("City") and Wal-Mart
Stores, Inc. {"Wal-Mart"), Yeim Commerce Group misstates the law and omits key facts. The
Court should not be fooled by Yelm Commerce Group's attempts at obfuscation.. The law is
crystal clear. The Court lacks jurisdiction over any land use petition not served within 21 days of
the adoption of City of Yelm Resolution No. 460 ("Resolution"}, the land use decision at issue in
this case. The facts are similarly beyond dispute. Yelm Commerce Group missed this deadline.
This action must be dismissed.
MCCULLOUGH HILL. PS
WAL-MART'S REPLY TO YELM COMMERCE GROUP'S 701 Fifth Avenue, Suite 7220
RESPONSE TO MOTIONS TO D[SMISS 1 Seattle, Washin ton 98104-7042
~;1WAL-MARllYelmtiLUPA4Repty Dismiss 02.doc ~ ~~ ~^ ,.., ~
„V// 206.812.3388
206.812.3389 fax
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II. ARGUMENT
I1a its response brief, Yelm Commerce Group argues that it was not required to serve the
land use petition in this action 21 days after the adoption of the Resolution but, instead, could
wait until 21 days after the City mailed it a copy of the Resolution. In the alternative, Yelm
!Commerce Group argues that the Court should excuse its tardy service because the fault lies in
part with its attorneys' messenger service and there is no prejudice to Respondents. Both these
~ arguments fail.
A. Yelm Commerce Group failed to serve the land use petition within 21 days of the
J adoption of the Resolution as required by LUPA.
Yelm Commerce Group argues it was not required to serve the land use petition unti121
days after the Resolution was mailed. This claim is legally incorrect and factually disingenuous.
RCW 36.70C.040 provides that a land use petition must be served within 21 days of the
~ issuance of the challenged land use decision and that:
{4) For the purposes of this section, the date on which a Iand 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 ar resolution by a legislative body
sitting in a quasi judicial capacity, the date the body passes the ordinance or resolution;
or
(c} If neither {a) nor (b) of this subsection applies, the date the decision is entered into
the public record.
RCW 36.70C.040(4) {emphasis added).
On its face, subsection (b) states the statute of limitations applicable in this case. The
Iand use decision at issue was adopted by Resolution. Land Use Petition, ¶ IV. Under the plain
MCCI LLQ_UGH HILE,. PS
WAL-MART'S REPLY TO YELM COMMERCE GROUP'S 701 Fifth Avenue, Suite 7220
RESPONSE TO MO'T'IONS TO DISMISS 2 Seattle, Washin on 98104-7042
L:1WAL-MART1YeIm1LUPA1Rep1y Dismiss 02.doc
206.812.3388
206.812.3389 fax
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language of RCW 36.70C.040(4)(b), the 21-day time period for service therefore began to run on
the date that the City Council passed the Resolution.
Well-established principles of statutory interpretation dictate that "When statutory
language is plain and unambiguous, the statute's nr~eaning must be derived from the wording of
the statute itself.... 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. Nykrein~, 146 Wn.2d 904, 926,
52 P.3d 1 (2002) (internal quotations omitted). Yelm Comxnerce Group cites authority far the
proposition that, when it is questionable which statute of limitations applies, the longer one is
adopted. This principle is simply inapplicable here, however, where the statute clearly provides
that a land use decision made by resolution is issued when the resolution is adopted.
The term "or" is disjunctive. Concerned Ratepayers Assn. v. Puhlic Utility Dist. No. 1 of
Clark County, 138 Wn.2d 950, 960, 983 P.2d 635 (1999) (in interpreting statutory language, "or"
serves a disjunctive purpose and does not mean "and"). RCW 36.70C.040(4) provides three
separate definitions of the date on which a land use decision is issued. These definitions are
separated by the term "or," indicating that only one subsection applies in any given case. Also,
subsection (c) states that it applies only "if neither (a) nor (b) applies," which implies that one or
the other would apply, not both. See Hale v. Island County, 88 Wn. App. 764, 769, 946 P.2d
1192 { i 997) (distinguishing enactments, such as the one in this case, that are entitled "ordinance"
or "resolution" and are subject to RCW 36.70C.040(4)(b) from other decisions made in writing
and mailed). The apparent rationale for the distinction is that some decisions are not made in
open public session -such as decisions of hearing examiners and staff -and, in these cases,
mailing would be key.
MCCULLOUGH HILL. PS
WAIrMART'S REPLY TO YELM COMMERCE GROUP'S 701 Fifth Avenue, Suite 7220
RESPONSE TO MOTIONS TO DISMISS 3 Seattle, Washington 98104-7042
L:SWAL-hAARI'IYeIm1LUPA5Reply Dismiss 02.doc
206.812.3388
2oG.812.3389 fax
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In addition, in interpreting a statute, the more specific language controls over the general.
Jones v. Sisters of Providence in Washington, Inc., 140 Wn.2d 112, 117, 994 P.2d 838 (2000).
Here, RCW 36.74CA40(4)(b) relates specifically to those actions taken by resolution. This
section controls over subsections (a) or {c), which govern a more broad, general category of
actions.
Seeking to avoid the result that flows naturally from the plain language of the statute,
YeIrn Commerce Group argues that subsection (a) should apply here because the City mailed a
copy of the Resolution to Yelm Commerce Group. Yet Yelm Commerce Group fails to tell the
Court the whole story. The City did not mail the Resolution as a matter of course, as Yelm
Commerce Group's response brief improperly implies. Declaration of Agnes Bernick in Support
of Reply Brief in Support of Motion to Dismiss for Failure to Effect Timely Service ("Bernick
Declaration"), ¶~5-6. ~ Instead, after it had missed the deadline for timely service, YeIm
Commerce Group contacted the City and requested that the City mail it a copy of the Resolution.
Id. at ¶5. Of course, the City complied with this request for a copy of a public record. Id. Now,
Yelm Commerce Group claims that the City's compliance with its request extended the deadline
for timely service in this matter.
Yelm Commerce Group's argument leads to absurd results. If the Court were to adopt
Yelm Commerce Group's approach, the statute of limitations for challenging a land use decision
made by resolution would never expire. Instead, any party wishing to challenge a land use
resolution could simply request a mailed copy, starting a new 21-day statute of limitations -days,
~1 The City is submitting the Bernick Declarakior concurrent with its repay brief.
MCCULLOUGH HILL PS
WAL-MART'S REPLY TO YELM COMMERCE GROUP'S 701 Fifth Avenue, Suite 7220
RESPONSE TO MOTIONS TO DISMISS 4 Seattle Washin on 98104-7042
L:1WAL-MART1YeImILUPAIReply Dismiss 02.dac ~
206.812.3388
206.812.3389 fax
t months, or even years after the resolution's adoption. The Court should reject Yelm Commerce
2 Group's creative argument due to its absurd consequences. Sheehan v. Central Puget Sound
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Regional TransitAuthority, 155 Wn.2d 790, 804, 123 P.3d 88 (2005) (statutory interpretation
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should avoid unlikely, strained or absurd consequences).
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6 Also, this result is clearly inconsistent with the strong policy favoring finality in land use
~ decisions. The Washington Supreme Court has clearly expressed this policy:
s This court has also reco nized a stron ublic olic su ortin administrative finali
g g p p Y pp g ty in
q land use decisions. In fact, this court has stated that "[i]f there were not finality [in land
use decisions], no owner of land would ever be safe in proceeding with development of
to his property....To make an exception ...would completely defeat the purpose and policy
~ 1 of the law in making a definite time limit." [Footnote omitted.]
12 Chelan County v. Nykreim, 146 Wn.2d 904, 931-932, 52 P.3d 1 (2002).
13 In this case, YeIrn Commerce Group admits that it attempted to serve the City on January
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18, 2006, a tacit admission that this is the applicable deadline. Yelrn Commerce Group also
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acknowledges that it failed to accomplish service by this date.
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17 B. The Court lacErs discretion to excuse Yelm Commerce Group's tardy service.
is Yelm Commerce Group argues that the Court should excuse its tardy service because of
19 delay on the part of its attorneys' legal messenger 2 and due to lack of prejudice to other parties.
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Yet the Courts have emphatically and repeatedly anything less than strict compliance with the
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Land Use Petition Act's ("LUPA's") service requirements.
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23 Substantial compliance with LUPA's service requirement is insufficient. San Juan
2a Fidalgo v. Skagit County, 87 Wn. App. 703, 943 P.2d 341 (1997). In San Juan Fidalgo, the
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26 2/ While Yelm Commerce Group's response brief discusses the actions of the legal messenger in detail, this
information is irrelevant. As discussed below, strict compliance with LUPA's service requirements is mandatory.
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28 WAL-MART'S REPLY TO YELM COMMERCE GROUP'S MCCULLOUGH H 1 LL PS
701 I~'ifth Avenue, Suite 7220
RESPONSE TO MOTIONS TO DISMISS 5 Seattle, Washington 98104-7042
L:SWAL-MARIIYeIm1LUPA5Reply Dismiss U2.doc
206.812.3388
206.812.3389 fax
petitioner delivered its land use petition to the county auditor's office 20 minutes after normal
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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:
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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. Puhlic
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 tune 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).)
Instead, strict compliance with LUPA's service requirements is mandatory. RCW
36.70C.040 ("~a] land use petition is barred, and the court may not grant review, unless the
Further, it was not the fault of the legal messenger that Yelm Commerce Group waited until the very last day of the
statutory period to ftle and serve its land use petition.
McCUlr~.ovcx HI,t L. PS
WAL-MART'S REPLY TO YELM COMMERCE GROUP'S 701 Fifth ~1,venue, Suite 7220
RESPONSE TO MOTIONS TO DISMISS 6 Seattle Washington 98104-7042
L:SWAL-MARFSYeIm1LUPA1Reply Dismiss 02.doc ~
206.822.3388
206.812.3389 fax
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petition is timely filed with the court and timely served"). The Washington Supreme Court has
repeatedly required parties to strictly adhere to the statutory procedures provided under
LUFA far filing and serving a land use petition. In Nykreim, for example, we held that the
challenge to a boundary line adjus#ment 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). Failure to meet the
service requirements of LUFA deprives the Court of subject matter jurisdiction. See Overhulse
Assn v. Thurston County, 94 Wn. App. 593, 596-597, 972 P.2d 470 (1999) ("When reviewing an
administrative decision, the superior court acts in its limited appellate capacity ...All statutory
procedural requirements must be met before this appellate jurisdiction is properly invoked.").
Yelm Commerce Group cites a number of cases in support of its argument that the Court
should excuse its failure to comply with LUPA's service requirement. These cases are all
inapposite, however, because none of them involve an appeal of a land use decision under
LUPA. Furthermore, Yelm Commerce Group's response brief fails even to mention the
numerous cases (including San Juan Fidalgo and Conom, supra) which hold that strict
compliance with LUPA's service requirements are necessary, despite the fact that Wal-Mart cited
them in its motion to dismiss.
For these reasons, Yelm Commerce Group's claim of substantial compliance fails.
~~~
~ ~~/
~~~
MCCULLOUGH HILL PS
WAL-MART'S REPLY TO YELM COMMERCE GROUP'S 701 Fifth Avenue, Suite 7220
RESPONSE TO MOTIONS TO DISMCSS 7 Seattle, Washington 98104-7042
L:SWAL-MARriYeIm1LUPA1Reply Dismiss iY2.doc
206.812.3388
206.812.3389 fax
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III. CONCLUSION
The land use petition was not timely served on the City. The Couxt lacks subject mattex
jurisdiction over this action. This action must be dismissed.
DATED this 6t" day of March, 2006.
MCCULLOUGH HILL PS
By:
John cCullough, WSBA #12740
Courtney E. Flora, WSBA #29847
Attorneys for Respondents
Wal-Mart Stores, Inc. and PacLand, Inc.
WAL-MART'S REPLY TO YELM COMMERCE GROUP'S
RESPONSE TO MOTIONS TO DISMISS 8
L:1WAL-MAR71YeIm5LUPA1Reply Dismiss 62.doc
MCCULLOUGH HILL. PS
701 Fifth Avenue, 5uate 7220
Seattle, Waslungto~ 98104-7042
206.812.3388
206.812.3389 fax