Opinion Information Sheet

			

                                                                               FILED
                                                                           JAN 31, 2012
                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

     COURT OF APPEALS, STATE OF WASHINGTON, DIVISION III

                                                    )
APPLEWOOD ESTATES                                   )      No.  29806-0-III 
HOMEOWNERS ASSOCIATION, a                           )
Nonprofit Corporation,                              )
BRANTINGHAM GREENS                                  )      ORDER AMENDING 
HOMEOWNERS ASSOCIATION, a                           )      COURT'S OPINION DATED
Washington Nonprofit Corporation;                   )      JANUARY 26, 2012
ROSS NEELY and MARY JOANNE                          )
NEELY, husband and wife; and                        )
MICHAEL LAUDISIO and SHEILA                         )
LAUDISIO, husband and wife,                         )
                                                    )
                      Petitioners,                  )
       v.                                           )
                                                    )
CITY OF RICHLAND, a political                       )
subdivision of the State of Washington;             )
WOLFF ENTERPRISES II, LLC, a                        )
Washington Limited Liability                        )
Company, dba THE WOLFF                              )
COMPANY, BADGER MOUNTAIN                            )
APARTMENTS I, LLC; BADGER                           )
MOUNTAIN APARTMENTS II LLC;                         )
a Washington Limited Liability                      )
Company, and BADGER MOUNTAIN                        )
APARTMENT III, LLC; a                               )
Washington Limited Liability                        )
Company,                                            )
                                                    )
                      Respondents. 

2 

       IT IS HEREBY ORDERED that the opinion filed on January 26, 2012 shall be 

amended as follows:  

       On page 2, first paragraph, fifth line that begins with "Badger Mountain Public 

Utility District (PUD)" is hereby amended to read Badger Mountain Planned Unit 

Development (PUD). . . .

       The rest of the paragraph shall remain without further changes.

       DATED:

       FOR THE COURT:

                                            ____________________________________
                                            KEVIN M. KORSMO
                                            ACTING CHIEF JUDGE 

No. 29806-0-III 
Applewood Estates v. City of Richland

                                                                               FILED
                                                                           JAN 26, 2012
                                                                    In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III

          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                               4 

No. 29806-0-III 
Applewood Estates v. City of Richland

APPLEWOOD ESTATES                                         No.  29806-0-III
HOMEOWNERS ASSOCIATION, a                       )
Nonprofit Corporation, BRANTINGHAM              )
GREENS HOMEOWNERS                               )         Division Three
ASSOCIATION, a Washington                       )
Nonprofit Corporation; ROSS NEELY               )
and MARY JOANNE NEELY, husband                  )         PUBLISHED OPINION
and wife; and MICHAEL LAUDISIO and,             )
SHEILA LAUDISIO, husband and wife,              )
                                                )
                    Petitioners,                )
       v.                                       )
                                                )
CITY OF RICHLAND, a political                   )
subdivision of the State of                     )
Washington; WOLFF ENTERPRISES II,               )
LLC, a Washington Limited Liability             )
Company, dba THE WOLFF                          )
COMPANY, BADGER MOUNTAIN                        )
APARTMENTS I, LLC; BADGER                       )
MOUNTAIN APARTMENTS II, LLC; a                  )
Washington Limited Liability                    )
Company, and BADGER MOUNTAIN                    )
APARTMENT III, LLC; a Washington                )
Limited Liability Company,                      )
                                                )
                      Respondents.              )
                                                )

       Brown, J.  --  Today, we review a land use dispute.  A court has jurisdiction under 

Washington's Land Use Petition Act (LUPA), chapter 36.70C RCW, to review land use 

decisions if review is requested within 21 days of the decision.  RCW 36.70C.040(3).  

Applewood Estates Homeowners Association, Brantingham Greens Homeowners 

Association, Ross Neely, Mary Joanne Neely, Michael Laudisio, and Sheila Laudisio 

                                               5 

No. 29806-0-III 
Applewood Estates v. City of Richland

(collectively the Neighbors) challenge the city of Richland's (City) June 16, 2010 

administrative decision entered on the public record to approve an amendment to the

Badger Mountain Planned Unit Development (PUD).  Under the Richland Municipal 

Code (RMC), the City's administrative decision was subject to review by the Board of 

Adjustment, a five-member board appointed by the Richland City Council.  RMC

23.70.040.  The Neighbors failed to appeal to the Board of Adjustment, instead suing in

the superior court almost 4 months later.  The court found the amendment was a major 

amendment violating LUPA.  On appeal, Badger Mountain Apartments I, LLC; Badger 

Mountain Apartments II, LLC; Badger Mountain Apartments III, LLC; and Wolff 
Enterprises II, LLC1 (collectively the Developer) (and amicus curiae Association of 

Washington Business) partly contend the trial court lacked jurisdiction for the 

Neighbors' failure to initiate review within 21 days under RCW 36.70C.040(3).  We 

agree, and reverse.  

                                            FACTS

       This LUPA action concerns the Badger Mountain PUD, located in Richland.  In 

June 2005, the City was presented with a proposal to create the PUD.  The PUD

proposal included a request for the phased construction of 365 housing units for those 

who were 55 and older, including for-sale single family residences, rental duplexes, 

attached town homes, apartments and an assisted living care facility.  Access to the 

       1 The City is not a party to this appeal.  

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No. 29806-0-III 
Applewood Estates v. City of Richland

PUD was planned from both Gala Way and Westcliffe Boulevard.  The PUD plan 

contemplated construction in 6 phases: 120 single family residences would be 

completed in Phases 1 and 2 on roughly one-half of the 60 acres.  Phases 3-6 were to 

be constructed on the remaining one-half.  Phase 3 was to be a "multi-family type 

apartment building of 90 independent living and 45 Assisted living units." Clerk's 

Papers (CP) at 303-04.  Phases 4 and 5 were to include for-rent duplexes, and Phase 6 

was to be for-sale attached row house type zero-lot line structures.  

       Under the PUD plan, Phase 3 was to be constructed on 11 acres on Parcels 2C 

and 2E, with the apartment complex to be located in the center of the site and buffered 

by open areas landscaped by trees and berms.  The main lodge consisted of two 

distinct buildings with a central 2-story main entry connector. The plan contemplated a 

3-story independent living wing with 90 apartments, while the 45 assisted living units 

were going to be in a 2-story structure.  The applicant described use of this property as, 

"[s]imilar in use to a R3 zone." CP at 335.  R3 zoning is for multiple-family residential.

RMC 23.08.010.

       Phases 4-6 were to be constructed on Parcels 2D, 2E, and 2F on a total of

22 acres.  Eighty-two duplexes and 34 townhomes were planned in these phases.  

Accordingly, for the 30 plus acres of land on which Phases 3-6 were to be constructed 

under the original PUD, 251 living units were permitted, including the 45-unit assisted 

living center.  On or about October 4, 2005, the City approved the Badger Mountain 

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No. 29806-0-III 
Applewood Estates v. City of Richland

PUD through Ordinance No. 32-05.

       In May 2007, the city staff recommended to the city council that it approve the 

first phase of the Badger Mountain PUD development, Phase 2A.   Although the 

original Badger Mountain PUD contemplated 60 acres of senior residences, the May 

2007 subdivision plat did not mention an age restriction.  The Badger Mountain 

Covenants, Conditions and Restrictions (CC&Rs) impose age restrictions.  

       In 2007, the prior property owner petitioned the City for a PUD amendment that 

reconfigured the housing units in Phases 3-6. Considering the factors set forth in RMC 

23.50.070, Rick Simon, the City's Development Services Manager, approved the 

amendment; no appeal followed.  In 2008, the prior property owner successfully asked 

the City to amend PUD Phases 3-6, proposing an assisted living care facility.  In March 

2010, the prior property owner again requested to modify Phases 3-6 of the PUD to 

allow 180 apartments and 72 lots in exchange for donating park land to the City.  

       After analyzing the issues, Mr. Simon rejected the proposed amendment, 

concluding that it increased the density of the PUD and was therefore a "major change"

under RMC 23.50.070 that required a new application for preliminary PUD approval.  

CP at 572.  In June 2010, the Developer applied for a modification to the PUD to allow 

for a 166 unit, non-age restricted, apartment complex on 15 acres of Parcel 2C.  Under 

the proposal, the remaining 15 acres were going to remain vacant.  The proposed 

location of the complex was approximately the same as that contemplated under the 

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No. 29806-0-III 
Applewood Estates v. City of Richland

original PUD.  On June 4, 2010, Mr. Simon forwarded the proposal to members of

several city departments for comment and evaluation. Mr. Simon explained to the 

Developer how many apartments could be constructed under a minor amendment in a

letter dated June 9.  Mr. Simon reminded the Developer that density to the PUD could 

not be increased without obtaining approval through a major amendment, which would 

involve the submittal of a new application.  The Developer then submitted plans for a 

176-unit apartment complex on the 15 acres.  

       Critical here, on June 16, Mr. Simon provided a written decision, a public record, 

administratively approving the minor amendment requested by the Developer under 

RMC 23.50.070, allowing 177 non-age restricted apartment units. Apparently, the City 

did not approach the change as material to density.  On August 4, the City confirmed 

that the Developer's application constituted a "minor amendment . . . and is hereby 

approved as, a revised final PUD plan as provided under RMC Sections 23.50.050 and 

23.50.040(D)." CP at 579.  On September 20, the City issued building permits to the 

Developer to construct the apartment buildings.  Not until October 4 did the Neighbors 

file a LUPA petition, challenging the City's June 16 decision that the modifications to 

the PUD were minor.  

       The Neighbors alleged they learned of the June 16 decision on or about

September 17.  They contended the City erroneously determined that the PUD changes 

were minor; arguing instead they were major changes requiring public notice, and 

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No. 29806-0-III 
Applewood Estates v. City of Richland

asked the court to set aside the June 16 decision.  The Neighbors asserted the building 

permits issued by the City on September 20 were invalid because the final PUD plans 

for the property were not approved by the city council. On December 10 the court 

considered the Developer and the City's motions to dismiss.  Among other things, the 

Developer and the City partly, and unsuccessfully, argued the Neighbors failed to file 

their LUPA Petition within 21 days of the City's June 16 decision. The Neighbors 

prevailed at trial on various grounds not relevant to the outcome of this appeal.  The

Developer appealed.

                                          ANALYSIS

       The dispositive issue is whether the Neighbors' LUPA petition was timely under 

RCW 36.70C.040(3).  Because we agree with both the Developer and amicus curiae 

that the petition was filed long after the 21-day period had expired, we do not address 

the Developer's contentions related to exhaustion of administrative remedies, standing, 

and lack of substantial evidence to support a major PUD amendment finding.

       LUPA requires a party to petition for review with the superior court within 21 

days of the date a land use decision is issued.  RCW 36.70C.040(3). This 21-day 

statute of limitations is strict; the doctrine of substantial compliance does not apply. 

RCW 36.70C.040(2); Asche v. Bloomquist, 132 Wn. App. 784, 795-96, 133 P.3d 475 

(2006).  

       We sit in the same position as the superior court when conducting judicial review 

                                              10 

No. 29806-0-III 
Applewood Estates v. City of Richland

under LUPA and give no deference to its findings.  Griffin v. Thurston County Bd. of 

Health, 165 Wn.2d 50, 54-55, 196 P.3d 141 (2008). We review the action based upon 

the administrative record before the court. Isla Verde Int'l Holdings, Inc. v. City of 

Camas, 146 Wn.2d 740, 751, 49 P.3d 867 (2002). Whether the Neighbors' petition 

was timely turns on our decision of when, under the case facts, the land use decision 

was issued. "Statutory construction is a question of law reviewed de novo under the 

error of law standard." Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 

169, 175, 4 P.3d 123 (2000).

       Our legislature has stated that the purpose of LUPA is "'timely judicial review.'"

Habitat Watch v. Skagit County, 155 Wn.2d 397, 406, 120 P.3d 56 (2005) (quoting 

RCW 36.70C.010)).  Our Supreme Court, "strongly favor[s] the finality of land use 

decisions."  Mellish v. Frog Mountain Pet Care, 172 Wn.2d 208, 215, 257 P.3d 641

(2011).  Pre-LUPA, Washington courts recognized that even illegal decisions must be 

challenged in a timely manner.  Habitat Watch, 155 Wn.2d at 407. LUPA's statute of 

limitations begins to run on the date a land use decision is issued.  RCW 

36.70C.040(3).  As observed by the Supreme Court in Habitat Watch, "[t]he statute 

designates the exact date a land use decision is 'issued,' based on whether the 

decision is written, made by ordinance or resolution, or in some other fashion." 155 

Wn.2d at 408; RCW 36.70C.040(4)(a).

       In Vogel v. City of Richland, 161 Wn. App. 770, 777, 255 P.3d 805 (2011), this 

                                              11 

No. 29806-0-III 
Applewood Estates v. City of Richland

court held, "[b]ecause both [the] application and city staff's response were verbal in this 

case, the decision was 'issued' on the date the decision was entered into the public 

record."  RCW 36.70C.040(4)(c).  The Vogel court held the time between when the 

decision entered the public record and when the petitioners filed their petition was 

within the 21-day period.  Id. Here, unlike in Vogel, the decision was written.  Both 

parties provided supplemental briefing on Vogel and both agree Vogel does not have a 

substantial impact on this case.  More instructive is Samuel's Furniture, Inc. v. 

Department of Ecology, 147 Wn.2d 440, 452, 54 P.3d 1194, 63 P.3d 764 (2002).

       In Samuel's Furniture, the Washington Supreme Court held, "LUPA does not

require that a party receive individualized notice of a land use decision in order to be 

subject to the time limits for filing a LUPA petition."  Id. at 462. The concurring opinion 

in Habitat Watch, 155 Wn.2d at 420, confirmed the scope of the Supreme Court's prior 

holding in Samuel's Furniture on notice.  Justice Chambers stated, "In Samuel's 

Furniture, we effectively approved the practice of giving no notice, even to those 

entitled to it by law."  Habitat Watch, 155 Wn.2d at 420 (Chambers, J., concurring).  

Under Samuel's Furniture, LUPA does not mandate specific, personal notice of a land 

use decision for the 21-day clock to begin.  

       In Habitat Watch, the Supreme Court elaborated on the likely meaning of RCW 

36.70C.040(4)(c) regarding entering a decision into the public record:

       [I]f a decision is neither written (as provided for in subsection (a)) nor 
       made by ordinance or resolution (subsection (b)), then it is issued on the 

                                              12 

No. 29806-0-III 
Applewood Estates v. City of Richland

       date it is entered into the public record. Subsection (c), then, does not 
       include decisions covered under subsections (a) and (b), but would 
       include other types, such as decisions made orally at a city council 
       meeting.  These decisions would be issued when the minutes from the 
       meeting are made open to the public or the decision is otherwise 
       memorialized such that it is publicly accessible.

155 Wn.2d at 408 (emphasis added). 

       Here, Mr. Simon provided a written decision, a public record, administratively 

approving the minor amendment requested by the Developer on June 16, 2010.  See 

RCW 42.56.030(2) ("Public record" includes any writing containing information relating 

to the conduct of government).  On August 4, the City confirmed the Developer's

application constituted a "minor amendment . . . and is hereby approved as, a revised 

final PUD plan as provided under RMC Sections 23.50.050 and 23.50.040(D)." CP at 

579.  Taken together, these actions were a "memorialization sufficient to identify the 

scope and terms of the decision."  Vogel, 161 Wn. App. at 774.  The City then issued 

building permits to the Developer to construct the apartment buildings. Almost 4 

months after the June 16, 2010 decision, the Neighbors filed their LUPA petition in the 

trial court.  

       Applying the legal principles derived from Samuel's Furniture, Habitat Watch, 

and Asche, we conclude the Neighbors were not entitled to personal notice, distinct 

from the notice contemplated by the filing of a public record as discussed in RCW 

36.70C.040(4)(c).  Accordingly, we hold the Neighbors' LUPA petition filed nearly 

                                              13 

No. 29806-0-III 
Applewood Estates v. City of Richland

4 months after the City made its determination was time barred.  

       Our holding is consistent with Washington's "strong public policy supporting

administrative finality in land use decisions."  Chelan County v. Nykreim, 146 Wn.2d 

904, 932, 52 P.3d 1 (2002).  Moreover, the remedy for future project opponents in the

Neighbors' position is legislative.  "'The Legislature is presumed to be aware of judicial 

interpretation of its enactments,' and so absent a legislative change, [the Court] 

presume[s] that the legislature approves of [its] interpretation."  Riehl v. Foodmaker, 

Inc., 152 Wn.2d 138, 147, 94 P.3d 930 (2004) (quoting Friends of Snoqualmie Valley v. 

King County Boundary Review Bd., 118 Wn.2d 488, 496-97, 825 P.2d 300 (1992)).  

The legislature has amended LUPA since Samuel's Furniture and Habitat Watch but 

has not changed any provision relating to actual notice, the date a land use decision is 

issued, or the 21-day time limitation.  See Mellish, 172 Wn.2d at 215 (discussing Laws 

of 2010, chapter 59, amending the definition of "land use decision" in LUPA).

       In sum, the trial court should have dismissed the petition as untimely.  Because 

the court lacked jurisdiction to proceed, it is unnecessary to address the other 

contentions raised by the parties noted above as the same would be, at best, dicta or 

amount to an undesirable advisory opinion.

       Reversed.

                                                                  _____________________
                                                                  Brown, J.

WE CONCUR:

                                              14 

No. 29806-0-III 
Applewood Estates v. City of Richland

____________________________                                      _____________________
Korsmo, A.C.J.                                                    Sweeney, J.

                                              15