IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
TOWARD RESPONSIBLE No. 69414-6-
DEVELOPMENT, a Washington
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Respondents,
and
CITY OF MAPLE VALLEY;
CYNTHIA E. AND WILLIAM B.
WHEELER; ROBERT M. EDELMAN;
PETER RIMBOS; MICHAEL E.
IRRGANG; JUDITH CARRIER; UNPUBLISHED OPINION
VICKIE HARP and CINDY PROCTOR,
FILED: June 16, 2014
Other Parties.
Verellen, J. — Toward Responsible Development (TRD) appeals the superior
court's order denying its motion to continue a stay of its land use petition pending this
court's resolution of a prior petition. TRD also challenges the dismissal of its petition
following its failure to perfect the record. We affirm both of the superior court's
orders.
No. 69414-6-1/2
FACTS
This is the third appeal addressing TRD's challenges to permits issued by the
City of Black Diamond (City) to BD Village Partners and BD Lawson Partners
(collectively Yarrow Bay) for two large-scale master planned development (MPD)
projects, known as The Villages and Lawson Hills. A fuller recitation of the facts of
TRD's two prior challenges is set out in this court's prior opinions, BD Lawson
Partners, LP v. Central Puget Sound Growth Management Hearings Board1 and
Toward Responsible Development v. City of Black Diamond (Toward Resp. Dev. I).2
The City approved Yarrow Bay's MPD permits by ordinance in September
2010. TRD, a citizens group opposed to the developments, appealed the MPD
permits to the City's hearing examiner, arguing that the environmental impact
statements upon which they were based were inadequate. The hearing examiner
upheld the permits, and on October 11, 2010, TRD filed a land use petition in King
County Superior Court under the Land Use Petition Act (LUPA), chapter 36.70C
RCW (the MPD petition).
RCW 36.70C.100 allows a petitioner to request a stay of implementation while a
LUPA petition is pending. TRD did not seek a stay, and while the MPD petition was
pending, Yarrow Bay moved forward with the next step in the permitting process. In
2011, the City adopted development agreements for both projects. TRD filed a
second LUPA petition challenging the development agreements (the DA petition). The
1 165 Wn. Aop. 677. 269 P.3d 300 (2011). review denied. 173Wn.2d 1036,
277 P.3d 669 (2012).
2 Noted at 179 Wn. App. 1012 (2014).
No. 69414-6-1/3
parties agreed to stay the DA petition pending the superior court's resolution of the
MPD petition.
On August 27, 2012, the superior court dismissed the MPD petition, finding
that TRD's claims regarding the MPD permits were without merit. TRD appealed the
dismissal to this court and sought to continue the stay of the DA petition pending the
resolution of the appeal. TRD argued that litigating the DA petition would be
inefficient given that either: (1) the MPD permits would be upheld by this court, at
which point TRD would abandon the DA petition,3 or (2) the MPD permits would be
voided, at which point TRD would seek to have the development agreements
remanded to the City's hearing examiner. Yarrow Bay opposed a continued stay,
arguing that any further delay would significantly prejudice its ability to enter into
construction contracts and jeopardize its capital investment in the projects.
The superior court denied TRD's motion to continue the stay and set a case
schedule for the DA petition. The case schedule required TRD to pay the City the
cost of producing the administrative record by October 10, 2012 and file the record by
November 5, 2012. TRD failed to meet these deadlines, and the City and Yarrow
Bay moved to dismiss. The superior court denied the motion and set new deadlines
for payment and filing of November 2 and November 20, 2012, respectively. TRD
again failed to meet these deadlines, and the City and Yarrow Bay renewed their
motion to dismiss. The superior court denied the motion a second time, setting new
3 In its briefing regarding the stay, TRD stated that "[i]f the Court of Appeals
upholds the Superior Court decision [on the MPD petition], TRD will not pursue this
LUPA appeal of the Development Agreements." Clerk's Papers at 734.
No. 69414-6-1/4
deadlines for payment and filing of November 26 and December 10, 2012,
respectively, and warning that "[sjhould TRD fail to comply with this third court-
ordered payment deadline, it will place petitioners in significant jeopardy of case
dismissal."4 TRD once again failed to meet these deadlines, and Yarrow Bay filed a
third motion to dismiss. In its response, TRD conceded that "because [TRD] has
appealed this Court's denial of its motion for a stay of this matter, it seems that
dismissal is warranted to allow these repeated issues to be resolved in a timely
manner before the Court of Appeals."5 Based on TRD's repeated failures to comply
with court-imposed deadlines as well as its concession that dismissal was warranted,
on December 6, 2012, the superior court granted Yarrow Bay's motion and dismissed
the DA petition with prejudice.
On January 27, 2014, this court issued its decision affirming the superior
court's dismissal of the MPD petition in Toward Resp. Dev. I.
TRD appeals the superior court's denial of its motion for a continued stay and
the dismissal of the petition.
DISCUSSION
Motion for Stay
The legislature enacted LUPA in order to establish "uniform, expedited appeal
procedures" for land use decisions made by local jurisdictions.6 The overarching goal
4 Clerk's Papers at 1092.
5 Clerk's Papers at 1107.
6RCW36.70C010.
No. 69414-6-1/5
of LUPA is to ensure "consistent, predictable, and timely judicial review."7 A hearing
on the merits shall take place within approximately 60 days from the filing of the
petition.8 A delay in setting the hearing on the merits requires either a stipulation of
the parties or a showing of good cause.9
The grant or denial of a motion for stay rests within the sound discretion of the
superior court, and we review the court's decision only for abuse of that discretion.10
A court abuses its discretion only if its ruling is manifestly unreasonable or is
exercised on untenable grounds or for untenable reasons.11 "A court's decision is
manifestly unreasonable if it is outside the range of acceptable choices, given the
facts and the applicable legal standard; it is based on untenable grounds ifthe factual
findings are unsupported by the record; it is based on untenable reasons if it is based
on an incorrect standard or the facts do not meet the requirements of the correct
standard."12
7\A
8 See RCW 36.70C.080 (requiring that within 7 days after the petition is
served, petitioner must note the initial hearing, which must be set between 35 and 50
days after the petition is served, and at which time the court shall enter an order
setting a date for perfection of the administrative record); RCW 36.70C.110 (requiring
the administrative record be perfected within 45 days of said order); RCW
36.70C.090 (requiring a hearing on the merits to be set within 60 days of the date set
for submitting the administrative record, absent a showing of good cause for a
different date or a stipulation of the parties).
9 RCW 36.70C.090.
10 King v. Olympic Pipeline Co.. 104 Wn. App. 338, 348, 16 P.3d 45 (2000).
11 Maver v. Sto Indus.. Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006).
12 In re Marriage of Littlefield. 133 Wn.2d 39, 47, 940 P.2d 1362 (1997).
No. 69414-6-1/6
TRD fails to demonstrate that the superior court abused its discretion in
denying a further stay of the DA petition. TRD's sole argument in support of the stay
was that it did not want to expend time and resources litigating the DA petition when
it planned to either abandon the DA petition or seek a remand of the development
agreements to the City's hearing examiner. But Yarrow Bay demonstrated that it
would be negatively impacted by any further delay. It was not unreasonable for the
superior court to determine that Yarrow Bay's interest in a timely resolution of the
case was greater than TRD's interest in minimizing litigation costs. The denial of the
stay was consistent with the express purpose of LUPA to provide expedited judicial
review.
Moreover, TRD has continually asserted that it would abandon the DA petition
if this court affirmed the dismissal of the MPD petition, as we have done in Toward
Resp. Dev. I.13 Even if the superior court had erred, it would be difficult to see what
relief this court could provide. An issue is moot if it is not possible for this court to
provide effective relief.14 Absent exceptions not argued here, this court will not
consider a case ifthe issue presented is moot.15
Motion to Dismiss
In a LUPA appeal, the petitioner is required to pay the local jurisdiction the
cost of preparing the record and to prepare at its own expense a verbatim transcript
13 Review of this court's decision was denied by the Washington State
Supreme Court on June 4, 2014.
14 Klickitat County Citizens Against Imported Waste v. Klickitat County, 122
Wn.2d 619, 631, 860 P.2d 390 (1993), 866 P.2d 1256 (1994).
15 State v. Walker, 93 Wn. App. 382, 385, 967 P.2d 1289 (1998).
6
No. 69414-6-1/7
of any hearings on the matter.16 "Failure by the petitioner to timely pay the local
jurisdiction ... is grounds for dismissal of the petition."17
TRD does not deny that the superior court was well within its discretion to
dismiss its petition for failure to comply with the statutory requirement of paying the
costs of preparing the administrative record. TRD instead argues that dismissal was
unwarranted because "[h]ad the Superior Court granted TRD's motion for a stay, the
case never would have progressed to the point of requiring TRD to pay for the
administrative record."18 This argument necessarily fails because we have
determined that the superior court did not err in denying the stay.19
Fees
The City and Yarrow Bay request attorney fees and costs incurred in
defending this appeal pursuant to RCW 4.84.370, which provides for reasonable fees
and costs incurred in appeal of a decision relating to development permits:
(1) Notwithstanding any other provisions of this chapter,
reasonable attorneys' fees and costs shall be awarded to the prevailing
party or substantially prevailing party on appeal before the court of
appeals or the supreme court of a decision by a county, city, or town to
issue, condition, or deny a development permit involving a site-specific
rezone, zoning, plat, conditional use, variance, shoreline permit,
building permit, site plan, or similar land use approval or decision. The
court shall award and determine the amount of reasonable attorneys'
fees and costs under this section if:
16RCW36.70C.110(1), (3).
17RCW36.70C.110(3).
18 Appellant's Br. at 21.
19 For the first time in reply, TRD argues that the superior court erred in
imposing unreasonable deadlines for filing of the administrative record. We do not
consider this argument because issues raised and argued for the first time in reply
are too late to warrant our consideration. Cowiche Canyon Conservancy v. Boslev.
118 Wn.2d 801, 809, 828 P.2d 549 (1992).
No. 69414-6-1/8
(a) The prevailing party on appeal was the prevailing or
substantially prevailing party before the county, city, or town, or in a
decision involving a substantial development permit under chapter
90.58 RCW, the prevailing party on appeal was the prevailing party or
the substantially prevailing party before the shoreline hearings board;
and
(b) The prevailing party on appeal was the prevailing party or
substantially prevailing party in all prior judicial proceedings.
(2) In addition to the prevailing party under subsection (1) of this
section, the county, city, or town whose decision is on appeal is
considered a prevailing party if its decision is upheld at superior court
and on appeal.1201
In essence, parties are entitled to attorney fees if a local jurisdiction's decision
is rendered in their favor and at least two courts affirm that decision.21
TRD argues that because it challenges only the superior court's order denying
a further stay, the superior court did not reach the merits of the LUPA petition and the
City and Yarrow Bay are thus not "prevailing parties" entitled to fees and costs.
Though TRD cites no authority in support of this contention, we note that Division II of
this court has repeatedly declined to award fees in cases where LUPA petitions are
dismissed on procedural grounds, concluding that the legislature intended
RCW 4.84.370 to apply only in cases in which the merits of a land use decision are
decided.22 However, this court has consistently disagreed, holding that
20 RCW 4.84.370.
21 Habitat Watch v. Skagit County. 155 Wn.2d 397, 413, 120 P.3d 56 (2005).
22 See, e.g., Overhulse Neighborhood Ass'n v. Thurston County, 94 Wn. App.
593, 601, 972 P.2d 470 (1999); Witt v. Port of Olvmpia. 126 Wn. App. 752, 759, 109
P.3d 489 (2005); Northshore Investors. LLC v. City of Tacoma. 174 Wn. App. 678,
701,301 P.3d 1049. review denied. 178Wn.2d 1015,311 P.3d 26 (2013).
8
No. 69414-6-1/9
RCW 4.84.370 "does not require that the party must have prevailed on the merits" in
order to be granted a fee award pursuant to the statute.23
Because the City and Yarrow Bay have prevailed at two court levels, they are
awarded their fees and costs, subject to compliance with RAP 18.1.
Affirmed.
XI M
WE CONCUR:
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23 Prekeges v. King County. 98 Wn. App. 275, 285, 990 P.2d 405 (1999); see
also Durland v. San Juan County. 175 Wn. App. 316, 326, 305 P.3d 246, review
granted, 179Wn.2d 1001, 315 P.3d 530 (2013).