Spice v. Pierce County
Spice v. Pierce County
Opinion of the Court
¶1 Ted Spice and Plexus Development, LLC, appeal the superior court’s denial of their CR 60(b)(5) and (11) motion to vacate the superior court’s dismissal of their LUPA
FACTS
¶3 On February 2, 2006, Ted Spice and Plexus Development, LLC, filed a petition in superior court under LUPA,
¶4 On November 22, the County moved the superior court to dismiss Spice and Plexus’s LUPA petition with prejudice under CR 41(b). On December 6, Spice and Plexus moved to continue the hearing date for the motion to dismiss. The County opposed the continuance. On December 8, with only the County and the City present, the superior court entered an order dismissing Spice and Plexus’s LUPA petition with prejudice. Spice and Plexus neither moved the superior court to reconsider its dismissal with prejudice nor appealed the superior court’s dismissal to us.
¶5 Thirteen months later, on January 3, 2008, Spice and Plexus filed a motion in superior court under CR 60(b)(5) and (11) and CR 41(b) to vacate its December 8, 2006 order dismissing their LUPA petition, which they had previously withdrawn. On January 11, the superior court denied Spice
ANALYSIS
¶6 We do not address the bulk of Spice and Plexus’s arguments because (1) there is no meaningful relief we can grant them and (2) the order they appeal is moot in light of their prior voluntary withdrawal of their LUPA petition, which terminated all further review of the County Hearing Examiner’s ruling by any court under LUPA (ch. 36.70C RCW) and its corresponding procedures.
Voluntary Withdrawal of LUPA Petition
¶7 An appeal from an administrative tribunal invokes the appellate, rather than the general, jurisdiction of the superior court. Chaney v. Fetterly, 100 Wn. App. 140, 145, 995 P.2d 1284, review denied, 142 Wn.2d 1001 (2000). Acting in its appellate capacity, the superior court has limited statutory jurisdiction, and all statutory requirements must be met before it properly invokes this jurisdiction. Chaney, 100 Wn. App. at 145 (quoting Skagit Surveyors & Eng’rs, LLC v. Friends of Skagit County, 135 Wn.2d 542, 555, 958 P.2d 962 (1998)).
¶8 The legislature intended LUPA to function as “ ‘the exclusive means of judicial review of land use decisions.’ ” Habitat Watch v. Skagit County, 155 Wn.2d 397, 407, 120 P.3d 56 (2005) (quoting RCW 36.70C.030(1)). To serve the purpose of timely review, LUPA provides stringent deadlines, requiring the parties to file a petition for review and to serve it on the parties within 21 days of the date of the land use decision. Asche v. Bloomquist, 132 Wn. App. 784, 795, 133 P.3d 475 (2006) (citing RCW 36.70C-.040(3)), review denied, 159 Wn.2d 1005 (2007). “[0]nce a party has had a chance to challenge a land use decision
¶9 Spice and Plexus complied with the initial LUPA requirements when they filed their LUPA petition in superior court within 21 days of the County Hearing Examiner’s decision. If they had pursued their LUPA petition and obtained superior court review, sitting in its appellate capacity, they could have sought further appellate review in our court.
¶10 Instead, Spice and Plexus served and filed a formal pleading that withdrew their LUPA petition from the superior court.
¶11 Accordingly, we hold that the superior court’s subsequent orders dismissing Spice and Plexus’s LUPA petition and denying their motion to vacate the dismissal order were moot for purposes of the matter currently before us. Moreover, because Spice and Plexus voluntarily withdrew their LUPA petition from superior court, there is no relief we can provide and the issues they raise are not properly before us. For these reasons, we further hold that their appeal before our court is frivolous
Van Deben, C.J., and Armstrong, J., concur.
Review granted at 167 Wn.2d 1008 (2009).
Land Use Petition Act, ch. 36.70C RCW.
At that point, any collateral estoppel or res judicata consequences flowed directly from Spice and Plexus’s termination of their LUPA petition. Thus, the superior court’s subsequent dismissal of Spice and Plexus’s LUPApetition, with or without prejudice, had no bearing on collateral estoppel or res judicata consequences, and the superior court’s order denying Spice and Plexus’s motion to vacate is moot. Moreover, such consequences apparently have been raised below in parallel ongoing proceedings, which are not currently before our court.
In their LUPA petition, Spice and Plexus asserted that although the Deputy Hearing Examiner had granted reconsideration of their development proposal and provided nearly all of the remedies that they had sought, nevertheless, they wanted the superior court to provide a “full measure of relief,” namely requiring the City to abide by its duty to provide water services to them and other similarly situated property owners.
“PETITIONER’S [sic] WITHDRAWAL OF PETITION FOR JUDICIAL REVIEW (LAND USE PETITION ACT)” stated in full:
Petitioners Ted Spice and Plexus Development, LLC, by and through their attorneys, Carolyn A. Lake of the Goodstein Law Group PLLC, hereby withdraws their Petition to the Pierce County Superior Court for review of the Pierce County Deputy Hearing Examiner’s May 19, 2005 Decision in the Resolution of a Water Service Dispute involving Ted Spice and Plexus Development, LLC and the City of Puyallup and the Deputy Examiner’s January 12, 2005 Decision on Reconsideration for same (“Decision”).
Petitioner intends to seek alternative, supplemental relief as set forth in Pierce County Deputy Hearing Examiner’s January 12, 2005 Decision on Reconsideration. A copy of this withdrawal will [be] sent to all parties.
Clerk’s Papers (CP) at 29.
See supra note 4.
We note, but do not include as a reason for finding this appeal frivolous, that Spice and Plexus acknowledge in their brief, CP at 1, that the County Hearing Examiner’s January 12, 2006 decision, for which they initially sought LUPA review, was primarily favorable to them. As their attorney commented during oral argument, they withdrew their LUPA appeal in order to pursue an alternative allowed by the same Hearing Examiner’s order. Moreover, there are currently pending proceedings before either the City or County Hearing Examiners in this matter. And at oral argument, the City represented that it is still waiting for Spice and Plexus to file a request for water service from the City, which they can file at any time.
Our court commissioner will determine these fees and costs upon the County’s and the City’s compliance with RAP 18.1.
Reference
- Full Case Name
- Ted Spice v. Pierce County
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- 8 cases
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- Published