Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                       DIVISION ONE

PATRICK A. T. JONES,                        )  
                                            )       No. 66125-6-I
                      Appellant,            )
                                            )       ORDER GRANTING
               v.                           )       MOTION TO PUBLISH 
                                            )          OPINION
THE TOWN OF HUNTS POINT, a                  )  
municipality,                               )
                                            )
                      Respondent.           )
________________________________)

       Respondent, Town of Hunts Point, has filed a motion to publish the 

opinion filed December 5, 2011; appellant, Patrick A. T. Jones, has filed a 

response to respondent's motion to publish the opinion; and the hearing panel 

has reconsidered its prior determination and finds that the opinion will be of 

precedential value; Now, therefore, it is hereby  

       ORDERED that the written opinion shall be published and printed in the 

Washington Appellate Reports. 

       DONE this _____ day of February, 2012.

                                                    FOR THE COURT:

                                                    __________________________
                                                                  Judge 

No. 66125-6-I/2

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

PATRICK A. T. JONES,                        )  
                                            )       No. 66125-6-I
                      Appellant,            )
                                            )       DIVISION ONE
               v.                           )  
                                            )  
THE TOWN OF HUNTS POINT, a                  )       UNPUBLISHED OPINION
municipality,                               )
                                            )       FILED:  December 5, 2011
                      Respondent.           )
________________________________)

       Becker, J.  --  This appeal concerns a restriction on the face of a 1951 plat 

in the town of Hunts Point.  The town interpreted the restriction as preventing 

appellant Patrick Jones from subdividing his lot into two independent lots.  We 

affirm the hearing examiner's adoption of the town's interpretation and the 

examiner's conclusion that the town has not abandoned the restriction.

       According to the hearing examiner's findings of fact, the Hunts Point Park 

Addition subdivision was approved by King County in December 1951.  At the

time, it consisted of 22 lots in block 1 and 16 lots in block 2.  Patrick Jones and 

his wife, Marianne Jones, owned lot 11 in block 2, with 24,045 square feet.  In 

2009, they completed a preapplication form to subdivide lot 11 into two roughly 

equal lots.  The town engineer informed them that the town would not accept a 

short subdivision application because subdivision was prohibited by a restriction 

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No. 66125-6-I/3

on the face of the plat.  This decision was affirmed, first by the town hearing 

examiner and then by the superior court.  This appeal followed.

                     Marianne Jones is not a necessary party.

       As a preliminary matter, the town contends review of this appeal is barred 

because Marianne Jones is not named as a party in the land use petition.  

Patrick alone was named as the petitioner.  Marianne, a lawyer, filed the petition 

on behalf of Patrick.  Patrick filed a declaration by Marianne stating that she 

intended to abandon her appeal and had quit claimed her interest in the property 

to her husband as his separate property.  

        "The procedural requirements of the Land Use Petition Act (LUPA) have 

to be strictly met before a trial court's appellate jurisdiction under the Act is 

properly invoked."  Citizens to Preserve Pioneer Park LLC v. City of Mercer 

Island, 106 Wn. App. 461, 467, 24 P.3d 1079 (2001).  The act provides that

certain persons "shall be parties":

              (2) 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 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;
              (b) Each of the following persons if the person is not the 
       petitioner:
              (i) Each person identified by name and address in the local 
       jurisdiction's written decision as an applicant for the permit or 
       approval at issue; and
              (ii) Each person identified by name and address in the local 
       jurisdiction's written decision as an owner of the property at issue;
              (c) If no person is identified in a written decision as provided 
       in (b) of this subsection, each person identified by name and 

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No. 66125-6-I/4

       address as a taxpayer for the property at issue in the records of the 
       county assessor, based upon the description of the property in the 
       application; and
              (d) Each person named in the written decision who filed an 
       appeal to a local jurisdiction quasi-judicial decision maker 
       regarding the land use decision at issue, unless the person has 
       abandoned the appeal or the person's claims were dismissed 
       before the quasi-judicial decision was rendered. Persons who later 
       intervened or joined in the appeal are not required to be made 
       parties under this subsection.

RCW 36.70C.040(2). 

       Marianne was identified by name and address in the hearing examiner's 

decision as an owner of the property at issue and as an applicant for the 

subdivision. The town contends that she was a necessary party under both 

subsections of RCW 36.70C.040(2)(b).  But Marianne was also named in the 

written decision as a person who filed the appeal to the hearing examiner.  

Jones contends that her nonjoinder is excused by her abandonment of the 

appeal under RCW 36.70C.040(2)(d).  The town responds that subsection (d) 

does not excuse the requirements of subsection (b).

       The town relies on a case in which a land use petition was barred by the 

petitioner's failure to name and serve a party to the appeal before the local 

decision maker.  Suquamish Indian Tribe v. Kitsap County, 92 Wn. App. 816, 

965 P.2d 636 (1998).  The status of a person who has abandoned her appeal

was not addressed in that case.  There is no compelling reason to require 

dismissal of a lawsuit for failure to name as a party a person who no longer 

wishes to participate in the matter.  See Citizens to Preserve Pioneer Park LLC, 

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No. 66125-6-I/5

106 Wn. App. at 470; Hale v. Island County, 88 Wn. App. 764, 770, 946 P.2d 

1192 (1997). We conclude the appeal is properly before us.

       The decision to be reviewed is the decision of the hearing examiner.  

RCW 36.70C.020(2); HPMC 17.05.030 ("The decision of the hearing examiner 

shall be given the effect of a final decision of the town council.").

               The town has the authority to enforce the restriction.

       The restriction recorded on the face of the 1951 plat states as follows:

              No lot or portion of a lot in this plat shall be divided and sold 
       or resold, or ownership changed or transferred, whereby the 
       ownership of any portion of this plat shall be less than the area 
       shown on the face of this plat. 
              All lots in this plat are restricted for R-1 Residence District 
       Use governed by and subject to restrictions rules and regulations 
       of the County Zoning Resolution No. 11373 and subsequent 
       changes thereto by official County Resolution.
              Approved for Septic Tanks installed in accordance with 
       specifications of the King County Health Department EXCEPT Lots 
       2, 5, 6, 13, 14, 15, 16, 17, 18, & 21 Block 1 and Lots 1, 2, 3, & 4 
       Block 2 which must receive written approval from the Health Dept. 
       before a building permit can be obtained.  All lots in this Plat are to 
       be Subject to individual approval by the Health Department.

       The town engineer interpreted this restriction as prohibiting Jones'

proposal to divide his lot in two.  The engineer communicated his rationale to 

Jones in a letter dated December 3, 2009, stating in part that the restriction had 

the force of law and was not simply a private covenant.  Jones contends the plat 

restriction is a private covenant that the town has no authority to enforce.  

        Jones relies on Viking Props., Inc. v. Holm, 155 Wn.2d 112, 118 P.3d 

322 (2005).  A covenant involved in that case required larger lot sizes than 

                                           5 

No. 66125-6-I/6

would have been necessary under applicable statutes and the plans and 

ordinances of the city of Shoreline, where the properties subject to the covenant 

were located.  In the course of upholding the covenant as an enforceable 

condition imposed on each lot by the original subdivision grantor, the Supreme 

Court recognized as proper the city's concession that it had no authority to 

enforce or invalidate restrictive covenants.  Viking, 155 Wn.2d at 130. Jones 

attempts to expand the court's comment into a more general holding that local 

governments lack authority to enforce limitations on lot density that are specific 

to a plat.  His argument fails to come to grips with the obligations imposed upon 

local government by subdivision statutes.

       The Hunts Point Municipal Code empowers the town engineer to review 

short subdivision applications under chapter 58.17 RCW.  HPMC 17.05.030.  

One purpose of the code is to ensure that subdivisions approved by the town

conform with all state statutes.  HPMC 17.05.020.  Among the state statutes with 

which subdivisions in Hunts Point must conform are the platting statutes, chapter 

58.17 RCW.  RCW 58.17.170 states that a subdivision "shall be governed by the 

terms of approval of the final plat."  Necessarily, then, the town must enforce 

restrictions imposed upon a subdivision as a term or condition of approval.

       Jones argues that RCW 58.17.170 is no longer applicable because it 

states that a subdivision shall be governed by the terms of approval of the final 

plat for seven years after final plat approval, and the Hunts Point plat was 
approved almost 60 years ago.1 Because he raises this argument for the first 

                                           6 

No. 66125-6-I/7

time in his reply brief in this appeal, we need not address it.  RAP 10.3(c); 

Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 

(1992). In any event, the language Jones refers to has been interpreted as 

stating the duration of time that a property owner's development rights in a 

formal subdivision remain vested from the time of plat approval.  See Noble 

Manor Co. v. Pierce County, 133 Wn.2d 269, 281-82, 943 P.2d 1378 (1997).  It 

has not been interpreted as a statute of limitations beyond which the terms of 

approval of a subdivision no longer have legal effect.

       The hearing examiner concluded the town was required to apply the plat 

restriction to Jones' application.  To the extent Jones contends the hearing 

examiner erred by viewing the plat restriction as a term of approval of the 1951 

       1      When the legislative body of the city, town or county finds that 
       the subdivision proposed for final plat approval conforms to all terms of 
       the preliminary plat approval, and that said subdivision meets the 
       requirements of this chapter, other applicable state laws, and any local 
       ordinances adopted under this chapter which were in effect at the time of 
       preliminary plat approval, it shall suitably inscribe and execute its written 
       approval on the face of the plat.  The original of said final plat shall be 
       filed for record with the county auditor.  One reproducible copy shall be 
       furnished to the city, town or county engineer.  One paper copy shall be 
       filed with the county assessor.  Paper copies shall be provided to such 
       other agencies as may be required by ordinance.  Any lots in a final plat 
       filed for record shall be a valid land use notwithstanding any change in 
       zoning laws for a period of seven years from the date of filing.  A 
       subdivision shall be governed by the terms of approval of the final plat, 
       and the statutes, ordinances, and regulations in effect at the time of 
       approval under RCW 58.17.150(1) and (3) for a period of seven years 
       after final plat approval unless the legislative body finds that a change in 
       conditions creates a serious threat to the public health or safety in the 
       subdivision.  
RCW 58.17.170.

                                           7 

No. 66125-6-I/8

subdivision, his argument fails.  When reviewing a challenge to the sufficiency of 

the evidence under RCW 36.70C.130(1)(c), this court views the evidence "and 

any reasonable inferences in the light most favorable to the party that prevailed 

in the highest forum exercising fact-finding authority." Willapa Grays Harbor 

Oyster Growers Ass'n v. Moby Dick Corp., 115 Wn. App. 417, 429, 62 P.3d 912

(2003). The inference that the restriction was a term of approval is supported by 

the fact that it was printed on the face of the plat.  

       Another pertinent statute states that when a proposed subdivision will 

violate a restrictive covenant, the applicant must obtain the approval of parties 

subject to the covenant before the restriction may be altered:

       If the subdivision is subject to restrictive covenants which were 
       filed at the time of the approval of the subdivision, and the 
       application for alteration would result in the violation of a covenant, 
       the application shall contain an agreement signed by all parties 
       subject to the covenants providing that the parties agree to 
       terminate or alter the relevant covenants to accomplish the 
       purpose of the alteration of the subdivision or portion thereof.

RCW 58.17.215.  As one basis for denying Jones' application, the town engineer 

noted that Jones did not submit an agreement to alter the restriction signed by 

other property owners who are subject to the restriction.  The town engineer was 

correct to insist on such an agreement before allowing Jones to proceed. 

       In short, the town was enforcing statutory mandates, not impermissibly 

conducting a private action based on a private covenant.  Viking does not 

compel reversal.  As the hearing examiner correctly determined, the town was 

required by local ordinance and statute to interpret and apply the plat restriction 

                                           8 

No. 66125-6-I/9

to Jones' application. 

                        The restriction prohibits subdivision.

       The next issue is whether the town engineer properly interpreted the first 

paragraph of the plat restriction, which states:  "No lot or portion of a lot in this 

plat shall be divided and sold or resold, or ownership changed or transferred, 

whereby the ownership of any portion of this plat shall be less than the area 

shown on the face of this plat."  The hearing examiner stated that reasonable 

minds "may differ as to the meaning of the plat restriction" but concluded that he 

was bound to give substantial weight to the decision of the town engineer.  The 

hearing examiner concluded that the town engineer rightly interpreted this 

language as prohibiting subdivision of lots in the plat.  

       According to Jones, the first paragraph of the restriction does not bar his 

application because it states that no lot "shall be divided and sold or resold," and

he proposed only to divide the lots, not to sell them.  In his view, there can be no 

violation of the restriction until a newly created lot is actually sold.  

       One of the ways a party challenging a land use decision may obtain relief 

is by showing that "the land use decision is an erroneous interpretation of the 

law, after allowing for such deference as is due the construction of a law by a 

local jurisdiction with expertise." RCW 36.70C.130(1)(b).  Jones contends the 

interpretation of the plat restriction is purely a question of law, to be reviewed de 

novo without deference to the town engineer.  

       Arguably, the plat restriction itself is not "a law" and the town engineer's 

                                           9 

No. 66125-6-I/10

interpretation of it was not entitled to deference.  But even so, the interpretation 

advocated by Jones would be an exceptionally strained construction of the text 

of the restriction.  It is to be avoided because it would lead to an absurd result.  

See Viking, 155 Wn.2d at 122.  It is undisputed that once a lot in Hunts Point is 

subdivided and recorded, the lot can legally be sold or transferred to a new 

owner without the town having any right to intervene.  If the restriction is not 

applied at the time of subdivision, it could not serve the purpose of maintaining

low residential density within the plat.

                 The restriction is a control on residential density.

       Jones contends, however, that the purpose of the plat restriction was not 

to maintain the existing residential density of the plat.  Rather, he claims, it was 

imposed only to address the health department's concern in 1951 that the 

platted lots needed to maintain their size to assure adequate drainage for septic

tanks.  The concern about septic tank drainage no longer exists, he points out, 

because all homeowners have since been required to connect to a sewer 

system.  

       The third paragraph of the restriction does address health department 

concerns about septic tanks, but there is no indication that the first paragraph is 

limited by the third paragraph.  The first paragraph cannot be read as having any 

purpose except to prevent the plat from being carved up into smaller lots.  That 

purpose is reflected not only by the plain language of the restriction but also by 

correspondence sent from the Hunts Point Improvement Club in 1951 to the 

                                           10 

No. 66125-6-I/11

county commissioners, indicating public concern with maintaining lot sizes large 

enough to preserve the country residential atmosphere.  The hearing examiner 

did not err by finding that the plat restriction was imposed as a limit on 

residential density and that it achieves that limit by preventing subdivisions like 

the one Jones proposed.

                                           11 

No. 66125-6-I/12

     The town has not abandoned the restriction by inconsistent application.

       Throughout the proceedings, Jones has argued that the town engineer's 

present interpretation must be inaccurate because the town has previously 

approved changes to lot size that do not comply with the restriction.  The town 

engineer's letter to Jones on December 3, 2009, persuasively explained why the 

town's previous approvals of boundary line adjustments and lot consolidations 

were consistent with the plat restriction.  Jones challenges the hearing 

examiner's conclusion that the restriction has not been abandoned.

       The record contains evidence of lot changes affecting 13 of the original 

lots.  Four lots in the northeast corner of the plat became three lots, four lots in 

the northwest corner became three lots, and five lots across the street from lot 

11 became four lots.  As noted by the town engineer, the result in each case was 

to create buildable lots larger in area than the original lots.  Originally there were 

38 separate lots in the plat; now there are 35.  This was a decrease in density, 

not an increase.  Further supporting the conclusion that the restriction was not 

abandoned, the deeds accomplishing the various lot changes within Hunts Point 

specifically state that the lots remain subject to the plat restriction.  

       As part of the changes affecting the four lots in block 2 in the northwest 

corner, the town accepted a deed of part of one of the lots in order to open a 

road.  Also, the town permitted a road bordering block 2 on the north to be 

vacated and the resulting land to be absorbed by the northernmost lot in block 2.

Jones claims these changes set a precedent for his proposed subdivision.  We 

                                           12 

No. 66125-6-I/13

disagree.  Opening the road did not increase the density of the plat.  The leftover 

portion of the lot from which the road was carved out was consolidated with the 

neighboring lot. The town did not establish a precedent for a subdivision that 

creates two independent lots from one original lot.  We conclude that the hearing 

examiner correctly rejected Jones' argument that the town had abandoned the 

restriction.

           Remand for acceptance of the application was not required.

       The hearing examiner concluded that the town engineer made a technical 

error in rejecting Jones' short plat application; the town engineer should have 

accepted the application and then taken certain procedural steps outlined in the 

municipal code.  However, the hearing examiner found the error to be of no 

moment under the circumstances, because it was clear that the plat restriction 

would have ultimately required denial of the application in any event.  Jones 

contends that in view of the procedural error, the examiner should have 

remanded the application for acceptance instead of going on to reach the 

substance of the dispute.  There is no merit to this argument.  The error was 

harmless.  RCW 36.70C.130(1)(a).

                        The town is entitled to attorney fees.

       The town is entitled to attorney fees under RCW 4.84.370.  The statute

authorizes an award of "reasonable attorneys' fees and costs" to the prevailing 

party or substantially prevailing party on appeal of a land use decision.  A town 

whose decision is on appeal "is considered a prevailing party if its decision is 

                                           13 

No. 66125-6-I/14

upheld at superior court and on appeal." RCW 4.84.370(2).  

       The town contends its reasonable costs include fees incurred by the 

town's contract engineer and planner in proceedings up to and including the 

hearing before the hearing examiner. Jones has not disputed this contention 

and we therefore direct that such fees, to the extent they are reasonable, be 

included in the award. 

       Affirmed.

WE CONCUR:

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