¶49 (concurring) — I agree with the majority’s decision to affirm and to grant Wesley Heinmiller attorney fees, and for that reason, I concur. However, I disagree with the majority’s interpretation of RCW 4.84.370.
¶50 First, the majority correctly recognizes a split in the Court of Appeals on the interpretation of the statute but suggests a novel approach not advanced by anyone. The Court of Appeals interprets RCW 4.84.370 as being comprehensive, meaning the standard — as interpreted by each division — applies to private and local governments alike. The majority attempts to “reconcile” the inconsistencies between the divisions by splitting the statute such that under subsection (1) private parties do not require a ruling on the merits but that under subsection (2) local governments do require a ruling on the merits. Majority at 11-IS. However, the majority’s attempt to reconcile the conflict between the divisions ignores their very reasoning. None of the divisions have split the statute in this manner, and neither the statutory text nor the divisions’ interpretations fit into the majority’s model.
¶51 Division Two has held that parties — whether private or governmental — are not entitled to attorney fees unless the court rules on the merits. This is evident in Witt v. Port of Olympia, where the court said, “[W]e have limited RCW 4.84.370 to require that the ‘prevailing’ party prevail ‘on the merits’ in an adversarial proceeding.” 126 Wn. App. 752, 758, 109 P.3d 489 (2005) (citing Overhulse Neigh. Ass’n v. Thurston County, 94 Wn. App. 593, 601, 972 P.2d 470 *82(1999)). Referencing the entire statute, the court in Witt did not split subsections (1) and (2) when it interpreted the term “prevail” as requiring a ruling on the merits. Id. at 759. Further, the Witt court reasoned that the legislative intent of the statute “in its entirety” is to “allow attorney fees only to a party who prevails on the merits.” Id. This legislative intent applies to both local government and private parties indistinguishably.
¶52 Division One disagrees with Division Two16 but has similarly interpreted the standard under RCW 4.84.370 as applicable to both local government and private parties. In Prekeges v. King County, the court held that the statute does not require a ruling on the merits. 98 Wn. App. 275, 285, 990 P.2d 405 (1999). For support of this proposition, the court cited its previous decision in San Juan Fidalgo Holding Co. v. Skagit County, 87 Wn. App. 703, 714-15, 943 P.2d 341 (1997), where it awarded attorney fees to the respondents who prevailed on procedural grounds, including both Skagit County and aligned private parties. Prekeges, 98 Wn. App. at 285.
¶53 While the bare facts in Witt, Overhulse, and Prekeges may line up with the majority’s attempt to reconcile the split, the courts’ reasoning in each case cannot be harmonized. The divisions continue to assert their conflicting interpretations of the statute, as is evident in several unpublished Court of Appeals opinions. See Toward Responsible Dev. v. City of Black Diamond, noted at 181 Wn. App. 1030, 2014 WL 2796526, 2014 Wash. App. LEXIS 1470 *83(Division One) (applying the same attorney fee analysis and granting fees to both the city and an aligned private party after the Land Use Petition Act (LUPA), chapter 36.70C RCW, petition was dismissed on procedural grounds); Mangat v. Snohomish County, noted at 176 Wn. App. 1010, 2013 WL 4734005, at *4-5, 2014 Wash. App. LEXIS 2034, at *12-13 (Division One) (granting attorney fees to both the county and aligned private parties who prevailed on procedural grounds, without reaching the merits of the petition); O’Brien v. City of Bremerton, noted at 131 Wn. App. 1046, 2006 WL 401702, at *8, 2006 Wash. App. LEXIS, at *22 (Division Two) (denying attorney fees to both the city and an aligned private party because the lower court failed to reach the merits of the petition, as it was dismissed as untimely).
¶54 I am not convinced by the majority’s attempt to reconcile the inconsistent decisions in the Court of Appeals. The statute is simply not amenable to being split depending on whether the prevailing party is a governmental entity or a private actor. I agree with the Court of Appeals that the statute, read as a whole, must apply in the same way to all affected parties.
¶55 I believe Division One has correctly interpreted RCW 4.84.370, particularly the word “prevail,” as not requiring a ruling on the merits. I would disapprove of Division Two’s interpretation that requires a merit-based win. As the majority acknowledges, we have generally said a party “prevails” when it succeeds in litigation. Cf. Riss v. Angel, 131 Wn.2d 612, 633, 934 P.2d 669 (1997) (“In general, a prevailing party is one who receives an affirmative judgment in his or her favor.”).17 The majority relies too heavily on its own unsupported interpretation of the word “upheld.” Majority at 78. However, we have never said that *84a win on the merits of an action, as opposed to procedural grounds, is necessary for a decision to be upheld. To the contrary, this court’s use of the word “uphold” generally supports Division One’s interpretation.
¶56 We often use the words “uphold” and “affirm” interchangeably, indicating agreement with a lower court’s decision. An appellate court may “uphold” the decision of a lower court, even when a lower court does not rule on the merits. See Phoenix Dev., Inc. v. City of Woodinville, 171 Wn.2d 820, 825, 256 P.3d 1150 (2011) (“upholding]” the city’s decision to dismiss a land use petition for failing to meet the statutory criteria for relief); Rasmussen v. Emp’t Sec. Dep’t, 98 Wn.2d 846, 848, 658 P.2d 1240 (1983) (affirming the commissioner of the employment security department’s decision to “uph[o]ld” the appeal tribunal’s dismissal of petitioner’s claim as untimely).18
¶57 The ordinary meaning of the word “uphold” also supports this interpretation. See Webster’s Third New International Dictionary 2517 (2002) (“uphold” generally means “to give support to”). An appellate court may “give support to” a lower court’s ruling on non-merit-based arguments. For these reasons, I believe Division One is correct in interpreting RCW 4.84.370 as not requiring a ruling on the merits where a party may be awarded attorney fees when it prevails on procedural grounds.
¶58 Furthermore, the legislature’s use of the passive voice, “is upheld,” reflects the different role played by local government in land use appeals. Land use appeals often involve at least three parties — local government, a party challenging the decision, and a party benefiting from the decision. Local government plays two roles in these pro*85ceedings: that of a decision-maker and that of a litigant. While local governments are often involved in land use challenges as necessary parties, the private parties that benefit from the land use decision often drive the litigation defending the decision. See, e.g., Prekeges, 98 Wn. App. 275 (where US West Wireless, a party aligned with King County who benefited from the county’s land use decision, was the party advancing arguments to the court). The legislature’s decision to use the passive voice may be a reflection of this dual role, where the local government’s own decision is upheld by a court while the private parties present arguments to the court.
¶59 Lastly, the majority’s interpretation gives local governments the perverse incentive to advance weaker, merit-based arguments in favor of stronger, non-merit-based arguments just to recover attorney fees. A local government’s strongest argument in a LUPA challenge may be one that does not reach the merits of a case, e.g., where a party files a procedurally invalid challenge, lacks standing, or files after the statute of limitation has run. Under the majority’s interpretation, a local government does not recover attorney fees when it successfully defends a LUPA challenge for procedural invalidity. This interpretation leads to strange and illogical results. For example, a city may be aligned with private parties in defending a land use decision. However, if a city succeeds with non-merit-based arguments, the private parties aligned with the city may benefit from the city’s argument and receive fees, but the city is left with the cost of litigating a procedurally invalid claim. This is an unjust result not intended by the statute.
¶60 The majority’s attempt to reconcile the divisional split does not address the conflict in the Court of Appeals and ignores the substance of the debate. To resolve the conflict, RCW 4.84.370 must be interpreted as treating all parties the same. I wholly agree with Division One that a party does not require a ruling on the merits to recover fees. *86Because the court properly awarded Heinmiller attorney fees, however, I concur with the majority’s result.
Madsen, C.J., and Fairhurst, J., concur with Stephens, J.Reconsideration denied May 13, 2015.
Heinmiller argues that Divisions One and Two are no longer split on this issue because Division Two recently held that attorney fees may be awarded where courts dismiss land use appeals on jurisdictional grounds. See Nickum v. City of Bainbridge Island, 153 Wn. App. 366, 383-84, 223 P.3d 1172 (2009). Division Two in Nickum, however, did not address the conflict that remains from its previous decisions in Overhulse and Witt, relying instead on Division One’s decision in San Juan Fidalgo Holding Co. v. Skagit County, 87 Wn. App. 703, 709, 713-15, 943 P.2d 341 (1997). Thus, Divisions One and Two remain in conflict on this issue, as noted by the Court of Appeals in this case. Durland v. San Juan County, 175 Wn. App. 316, 326 n.6, 305 P.3d 246 (2013) (recognizing that Division Two of this court views this question differently).
We have supported this proposition in other areas of law. See, e.g., Blair v. Wash. State Univ., 108 Wn.2d 558, 572, 740 P.2d 1379 (1987) (similarly holding in a civil rights case); Andersen v. Gold Seal Vineyards, Inc., 81 Wn.2d 863, 865, 505 P.2d 790 (1973) (similarly holding in a tort case).
Another example of this appears in the similar LUPA case of Knight v. City of Yelm, where Justice J.M. Johnson states on two separate occasions, “I would affirm the decision of the Court of Appeals dismissing Knight’s LUPA petition for lack of standing,” 173 Wn.2d 325, 349, 267 P.3d 973 (2011), (J.M. Johnson, J., dissenting) (emphasis added), and “I would uphold the Court of Appeals in dismissing Knight’s LUPA petition for lack of standing,” id. at 352 (J.M. Johnson, J., dissenting) (emphasis added).