(concurring in part/dissenting in part) — I concur with the majority’s dismissal of Habitat Watch’s Land Use Petition Act (LUPA), chapter 36.70C ROW, petitions, though I believe the land use decision was “issued” when it was placed in the public record. But the majority errs when it chooses not to address the constitutionality of RCW 4.84.370, which allows local governments to recover attorney fees from private litigants but never pay them. While the briefing is admittedly imperfect, focusing on the standard of review and the inapplicable right to petition the government for redress of grievances rather than the pertinent question of whether there is a rational basis for preferring local governments over other litigants, Habitat Watch did raise the issue:
[T]he government will never be a losing party because it will always prevail before itself at the administrative level. Consequently, the law shifts fee awards only one way: from a private party to the government and those aligned with the government.
Reply Br. of Habitat Watch at 34.
*422¶57 Because the lack of any rational basis for preferring the government over private litigants is stark and because failing to address the issue will result in application of a clearly unconstitutional statute against Habitat Watch, I would address the issue and hold the statute violates the equal protection clause of the United States Constitution’s fourteenth amendment.
I. Entered in the public record
¶58 The majority notes that LUPA’s statute of limitations begins to run on the date a land use decision is issued. RCW 36.70C.040(3); majority at 408. “Issued” is defined in the next subsection:
(4) For the purposes of this section, the date on which a land 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 or 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).
¶59 The majority states:
Here, it is not clear from the record or the briefing when the final two permit extensions were issued within the meaning of RCW 36.70C.040(4). There is nothing in the record that shows the extension decisions were mailed to all parties of record, or otherwise made publicly known, or passed by ordinance or resolution. It is also unclear if and when the decisions were “entered” into the public record.
Majority at 408 (emphasis added).
¶60 As the majority noted, Habitat Watch “submitted a public disclosure request to Skagit County to determine the authority for the golf course project and learned that the *423project was going forward based on extensions of the 1993 permit.” Majority at 403. Thus, it was through accessing public records containing the decision granting the extension that Habitat Watch learned of the extensions. It is axiomatic the decision must have been previously entered into such records for it to be discoverable under the public disclosure act (PDA), chapter 42.17 RCW, thus meeting the definition of “issued” under RCW 36.70C.040(4)(c).
f61 The phrase “entered into the public record” is not defined in LUPA. “An undefined term in a statute will be given its usual and ordinary meaning, and the court may use a dictionary definition to determine the usual and ordinary meaning of the term.” Scoccolo Constr, Inc. v. City of Renton, 125 Wn. App. 150, 157, 103 P.3d 1249 (2005) (citing Shoreline Cmty. Coll. Dist. No. 7 v. Employment Sec. Dep’t, 120 Wn.2d 394, 842 P.2d 938 (1992)).
¶62 Webster’s Third New International Dictionary 756-57 (2002) defines “enter” as “to cause to go into or be received into something” and “enter into” as “to form a constituent part or element of: become a part of.” “[P]ublic record” is defined as “a record filed in a public office and open to public inspection.” Id. at 1836.
¶63 The PDA requires that all public records12 “shall [be made] available for public inspection and copying.” RCW 42-.17.260, .270. Thus, under the common definition of the statutory terms, Skagit County’s decision to grant the permit extensions was at some point “entered into the public record” pursuant to RCW 36.70C.040(4)(c).
¶64 There is no indication in the record extensions were not filed in a public office open to public inspection. Indeed, while Habitat Watch obtained the records through a public *424records request, that request was sent by mail.13 Ex. 315; Ex. Ill, Attach. 1. Habitat Watch does not claim it visited the Skagit County Planning Department and was denied the opportunity to inspect or copy the records regarding the permit extensions.
¶65 Since the permit extensions were “entered into the public record” under RCW 36.70C.040(4)(c), they were “issued” as of the date they were entered. Even if the record before this court doesn’t disclose that precise date, if it differed at all from the date the decisions were made, the date certainly preceded the date the county responded to Habitat Watch’s public disclosure request. Thus, while I concur that the 21-day statute of limitations ran before Habitat Watch filed its land use petition, I would follow the plain language of the statute to determine the date from which the statute of limitations ran.
II. Favoring local governments in awarding attorney fees violates equal protection
¶66 I would find the LUPA attorney fees statute, RCW 4.84.370, unconstitutional because there is no rational basis to favor local governments and those aligned with them over other parties to a LUPA petition when determining an award of attorney fees.
¶67 The statute provides:
(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, *425site 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:
(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 [s] 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.
RCW 4.84.370.
f 68 The statute creates two classes with respect to the payment of attorney fees: private litigants, who pay attorney fees if they oppose the local government decision and lose again at the superior court and Court of Appeals, and local governments, who never pay attorney fees under the statute.
¶69 Under the plain language of the statute, if the final administrative decision of the government disfavors one party, that party can never recover its attorney fees under the statute. However, the local government whose decision is upheld at the superior court and the appellate court is eligible for attorney fees under the statute, but local governments never pay attorney fees under the statute. Since the local government is both decision maker and party at the highest level of administrative review available under its ordinances, and since that final decision constitutes the “land use decision” under review, the local government cannot ever be required to pay reasonable attorney fees nor can a party not aligned with the government ever recover them.
*426¶70 Given the statutory interpretation required by the language of the attorney fees and LUPA’s definition of a land use decision, the classification under the statute is clear. The government can never be required to pay attorney fees, unlike parties that challenge local government land use decisions.
¶71 Habitat Watch contends that this classification must be reviewed under strict scrutiny because the “fundamental libert[y]” of petitioning the government for redress of grievances is “at stake.”14 Reply Br. of Habitat Watch at 35. However, Habitat Watch does not explain how the prospect of paying attorney fees at the appellate level implicates the right to petition the government for redress of grievances. The Court of Appeals previously rejected this argument under a challenge to RCW 4.84.370 brought directly under the First Amendment, Gig Harbor Marina, Inc. v. City of Gig Harbor, 94 Wn. App. 789, 799, 973 P.2d 1081 (1999), and I find the reasoning of that opinion persuasive on this point.15
f 72 But this does not end the inquiry.
The standard of review in a case that does not employ suspect classification or fundamental right is rational basis, also called minimal scrutiny. Under the rational basis test, the court determines (1) whether the legislation applies alike to all members of the designated class, (2) whether there are reasonable grounds to distinguish between those within and those without the class, and (3) whether the classification has a rational relationship to the purpose of the legislation.
Philippides v. Bernard, 151 Wn.2d 376, 391, 88 P.3d 939 (2004) (citation omitted).
¶73 Put another way, “[u]nder the rational basis test, the law must be rationally related to a legitimate state interest.” Des Moines Marina Ass’n v. City of Des Moines, 124 *427Wn. App. 282, 288, 100 P.3d 310 (2004). The “reasonable grounds” prong of the Philippides formulation is analogous to the “legitimate state interest” in the Des Moines Marina formulation. What is the “legitimate state interest” served by the LUPA attorney fees statute?
¶74 Skagit County claims that the intent of the statute “is to discourage repetitive meritless land use appeals, to compensate appellees for the tangible and intangible costs of litigation and to conserve judicial resources.” Skagit County’s Sur-Reply Br. at 4. See also Gig Harbor Marina, 94 Wn. App. at 800. Of course, the purpose isn’t to discourage all appeals of land use decisions, but appeals of land use decisions to either the Court of Appeals or the Supreme Court, since nongovernmental parties get one opportunity to appeal a land use decision free of the risk of having to pay the other party’s fees and costs if they are unsuccessful before the superior court. See Baker v. Tri-Mountain Res., Inc., 94 Wn. App. 849, 854, 973 P.2d 1078 (1999).
¶75 Given that local governments never have to pay attorney fees under RCW 4.84.370, the purpose cannot have been to generally discourage “meritless” land use appeals, to compensate all appellees for litigation costs, or to conserve judicial resources in all land use cases. Rather, the statute was clearly designed to discourage land use appeals from those who oppose local government decisions and compensate local governments and those who side with them. This is simply a naked preference for local governments over private litigants opposing local government land use decisions.
¶76 A statute the rationale of which is simply to favor the government is not rational. In Hunter v. North Mason High School, 85 Wn.2d 810, 818-19, 539 P.2d 845 (1975), this court held the only possible rationale for a statute favoring the government (by setting a shorter statute of limitations for parties suing the government) was protecting the public treasury. This court held such nonclaim statutes violate equal protection:
*428In light of these considerations, the only function the special treatment given governmental bodies seems to perform is the simple protection of the government from liability for its wrongdoing. Our State has clearly and unequivocally abjured any desire to so insulate itself from liability, however, in its absolute waiver of sovereign immunity, which places the government on an equal footing with private parties defendant.
Any policy of placing roadblocks in the way of potential claimants against the state having been abandoned, we cannot uphold nonclaim statutes simply because they serve to protect the public treasury. Absent that justification, there is no basis, substantial or even rational, on which their discrimination between governmental plaintiffs and others can be supported. They thus cannot stand under the equal protection clause of the Fourteenth Amendment or Const, art. 1, § 12.
Hunter, 85 Wn.2d at 817-19 (footnote omitted).
f 77 The lesson of Hunter is clear. A statute the purpose of which is to favor the government in litigation lacks rational basis.
¶78 Further, accepting solely for the sake of argument that deterring “meritless” land use appeals to the Court of Appeals or Supreme Court is a legitimate state purpose, is the statute rationally related to that purpose?
¶79 As noted, the statute does not deter “meritless” appeals from all parties, only from private parties not aligned with the government. Local government, which under the definition of a land use decision never “loses” at the administrative level, is undeterred by the statute. Local governments can lose at the superior court, the Court of Appeals, and the State Supreme Court and still never pay attorney fees. Even under rational basis review “[t]he State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational.” City of Cleburne v. Cleburne Living Ctr, Inc., 473 U.S. 432, 446, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985).
¶80 The statute is so woefully underinclusive, and thus so attenuated from the asserted goal of deterring *429“meritless” land use appeals to the Court of Appeals and Supreme Court, that the distinction is arbitrary and irrational. Indeed, since the local government is always a party to such land use appeals, and never pays attorney fees, the statute by definition is underinclusive in every land use appeal to the Court of Appeals and Supreme Court. I recognize that this court has rarely held underinclusive statutes to violate rational basis equal protection review, however my survey of the case law has found no classification scheme that by definition was so underinclusive that it failed to include one party in every case in which it was designed to apply.
¶81 Further, it is hard to conclude the statute is rationally related to its alleged goal of discouraging “meritless” appeals of land use decisions to the Court of Appeals and Supreme Court, rather than just a pretext for pure favoritism of local governments, when the identical deterrent effect could be achieved with a statute that simply awarded attorney fees to a party that prevailed in the superior court and the Court of Appeals.16 Such a statute would still deter “meritless” land use appeals to the Court of Appeals and Supreme Court just as effectively. A party would still get one “free” appellate review to the superior court. The only difference would be that removal of the requirement to “prevail or substantially prevail” in front of the local government would make the local government susceptible to an award of attorney fees and would place local governments on equal footing with any private party.
¶82 Given this is a comprehensively underinclusive statute, and a virtually identical statute (absent the requirement that the party prevail before the county, city, or town) could serve the same purpose without the invidious classification, I conclude that the statute is not rationally related to its purpose of deterring “meritless” appeals to the Court *430of Appeals and Supreme Court. Thus, I dissent from the majoritys decision to award attorney fees under RCW 4.84.370.
Reconsideration denied December 5, 2005.
The PDA defines a “public record” as “any writing containing information relating to the conduct of government or the performance of any governmental or proprietary function prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.” RCW 42.17.020(36). The PDA long predates LUPA, and Skagit County’s land use decisions clearly meet this definition. While the plain meaning of “public record” is clear, if the term were considered ambiguous we could look to the related “public record” definition under the PDA. Dep’t of Ecology v. Campbell & Gwinn, L.L.C., 146 Wn.2d 1, 43 P.3d 4 (2002).
These letters were mailed June 7, 2002 and were not received by the Skagit County Planning Department until June 10, 2002. Ex. 315. While Habitat Watch complains of the 14-day response time, Habitat Watch requested far more than merely the documents relating to the permit extension. Habitat Watch’s public disclosure request requested virtually every document relating to the grading permit, the forest practices conversion application, an access permit, along with a copy of the 1993 decision on the special use permit and “any attachments or accompanying decisions.” Ex. Ill, Attach. 1.
See U.S. Const, amend. I; Wash. Const, art. I, § 4.
Further, such a holding would cast doubt on any attorney fees statute, and perhaps judicial enforcement of attorney fees clauses in private contracts, since all such statutes and clauses could “chill” a party’s willingness to petition the court.
And the Supreme Court, if a party sought review of a Court of Appeals decision.