(dissenting) — The majority, under the doctrine of administrative remedies, held that appellants are barred from seeking review of the King County Council's approval of the subject plat. I would hold that the failure of neighboring property owners to appeal the preliminary recommendation of a hearing examiner on a plat application cannot proscribe such property owner's right to appeal the validity of a King County ordinance based on such examiner's recommendation. I would remand to the trial court for a hearing.
Issues
1. Whether an appeal from a hearing examiner's recommendation is a jurisdictional prerequisite to an aggrieved *80property owner's right to appeal from the passage of a King County zoning ordinance.
2. Whether the plaintiff, South Hollywood Hills Association for the Preservation of Neighborhood Safety and the Environment, timely filed its appeal in superior court and joined necessary parties.
I
On July 17, 1980, the King County hearing examiner conducted a public hearing on a proposed subdivision plat, Bristol View Two, applied for by Burnstead Construction Company. Four people who owned property near the proposed subdivision participated in the public hearing, along with representatives from Burnstead Construction Company, and King County personnel. The neighboring property owners expressed objections including: (1) inadequate public services such as police and fire protection, (2) increased noise and traffic hazards, and (3) the opinion that development at the proposed density would be inconsistent with the established character of the neighborhood. These objections were reflected in the hearing officer's findings 5 and 6. Over objections, the hearing examiner recommended to the King County Council (Council) that it grant preliminary approval to the plat. The four property owners did not appeal from the examiner's recommended order. On September 2, 1980, the Council adopted the examiner's findings and conclusions and enacted King County ordinance 5086, approving the plat.
Shortly thereafter, 21 neighboring property owners formed the South Hollywood Hills Citizens Association for the Preservation of Neighborhood Safety and Environment (Association). On September 11, 1980, pursuant to RCW 58.17.180, the Association applied for a writ of review of the Burnstead plat in King County Superior Court. The trial court dismissed it for failure to name the property owners as necessary parties.2 On September 26, the Association *81filed an amended application for a writ of review naming Burnstead Construction Company as a defendant. The day before the scheduled October 7 hearing on the application, counsel for the Association was notified that an attorney for the Mowats, record owners of the property, would appear at the hearing. The Association immediately applied to amend the application by inserting the Mowats as defendants. On October 7, the trial court dismissed the application for failure to comply with the 30-day limitation period provided in RCW 58.17.180.3
II
The majority errs in applying the exhaustion doctrine for two reasons. First, the examiner's recommendation is not a final decision. The Council retains authority to make the final decision on the plat. Second, the county administrative scheme grants standing to different classes of people to appeal from (1) examiner recommendations, and (2) Council final decisions. Therefore, the doctrine of exhaustion of remedies is inapplicable to this case.
Examiner Recommendation Is Not a Final Decision
The hearing examiner's recommendation is only advisory to the Council. The Council is free to adopt the recommendation, modify it, reject it, or remand the recommendation back for further factfinding, all independent of whether any "appeal" is taken from the hearing examiner's recommen*82dation. See King County Code 20.24.210. An interested party could be satisfied with the hearing examiner's recommendation prior to Council action, but totally oppose the final ordinance passed by the Council after substantial changes were enacted. Pursuant to majority rationale, the Council could conceivably modify a satisfactory recommendation, and a previously satisfied party would be precluded from judicial review in superior court because he failed to "appeal" the hearing examiner's recommendation. This results in an "ambush theory" of zoning and subdivision approval and nullifies statutory and due process rights of adjacent property owners.
RCW 58.17.330 grants to counties the authority to adopt the hearing examiner system for acting on subdivision plat applications:
As an alternative to those provisions of this chapter requiring a planning commission to hear and issue recommendations for plat approval, the county or city legislative body may adopt a hearing examiner system and shall specify by ordinance the legal effect of the decisions made by the examiner. The legal effect of such decisions shall include one of the following:
(1) The decision may be given the effect of a recommendation to the legislative body;
(2) The decision may be given the effect of an administrative decision appealable within a specified time limit to the legislative body. The legislative authority shall prescribe procedures to be followed by a hearing examiner.
(Italics mine.) The statute clearly gives counties the option to authorize the hearing examiner to issue either advisory recommendations or final decisions appealable to the legislative body, i.e., the Council.
King County adopted the hearing examiner system in King County Code 20.24. King County Code 20.24.080(A) lists the functions performed by the hearing examiner in which he is authorized to issue appealable final decisions. Approval of subdivision plat applications is not listed among those functions. King County Code 20.24.070(A) *83lists those functions in which the examiner is authorized to make only recommendations to the Council:
The examiner shall receive and examine available information, conduct public hearings and prepare records and reports thereof and issue recommendations to the council based upon findings and conclusions in the following cases:
4. Applications for preliminary plats . . .
(Italics mine.)
Under the provisions of the enabling legislation, RCW 58.17.330, the hearing examiner's recommendation on a preliminary plat application is not an appealable order. Any attempt by the County to require an appeal from an advisory recommendation in order to preserve judicial review conflicts with the enabling legislation and should be held invalid. State v. Thomasson, 61 Wn.2d 425, 378 P.2d 441 (1963). The Court of Appeals was correct in this case when it stated:
Because the council retains the responsibility for making a final decision on the merits, it may not step behind the cloak of the exhaustion doctrine to insulate itself from the appeal provided by RCW 58.17.180.
South Hollywood Hills Citizens Ass'n v. King Cy., 33 Wn. App. 169, 175, 653 P.2d 1324 (1982).
Different Classes of People Have Standing To Appeal Examiner Recommendation and Council Final Decisions
King County Code 20.24.210(B) provides for an appeal from the hearing examiner's recommendation. However, an analysis of this ordinance and the provisions of King County Code 20.24.240(A), granting review rights from the Council's final decision, reveals that the two ordinances grant standing to appeal to entirely different classes of people. The right of review of the Council decision is separate and distinct from the right of appeal from the examiner's recommendations. Therefore, the majority's application of the exhaustion doctrine in this case is *84improper.
King County Code 20.24.210(B) states in part:
Recommendations of the examiner in cases identified in Section 20.24.070 may be appealed to the council by an aggrieved party by filing a notice of appeal with the clerk of the council within fourteen calendar days of the date the examiner's written recommendation is mailed.
(Italics mine.) Thus, the ordinance provides that an aggrieved party may appeal the recommendation of the hearing examiner to the County Council.
The language of the ordinance changes when we examine King County Code 20.24.240(A), setting forth the right to seek judicial review in superior court of the Council's final decision:
Decisions of the council in cases identified in Section 20.24.070 shall be final and conclusive action unless within twenty calendar days, or within thirty calendar days for decisions approving or denying plats, from the date of the council's adoption of an ordinance an aggrieved person applies for a writ of certiorari from the Superior Court in and for the county of King, state of Washington, for the purpose of review of the action taken . . .
(Italics mine.)
The right of review from the Council's final decision is granted to aggrieved persons.
It is an elementary rule of statutory construction that where certain language is used in one instance, and different language in another, there is a difference in legislative intent. Seeber v. State Pub. Disclosure Comm'n, 96 Wn.2d 135, 139, 634 P.2d 303 (1981). The use of the word party in the code section conferring a right of appeal from the examiner's recommendation is different from the use of the term person aggrieved in the section conferring the right of appeal from the Council's final decision. See Shore Acres Imp. Ass'n v. Anne Arundel Cy. Bd. of Appeals, 251 Md. 310, 247 A.2d 402 (1968). Statutes or ordinances which grant review rights to persons give standing to a broader class of people than those which grant appeal rights to *85parties. See Sterling v. County of Spokane, 31 Wn. App. 467, 472, 642 P.2d 1255, review denied, 97 Wn.2d 1041 (1982); 4 R. Anderson, Zoning § 25.10 (2d ed. 1977). These two ordinances, granting appeal rights from examiner recommendations and Council final decisions, provide alternative remedies to which the exhaustion doctrine does not apply. Scarborough v. Mayor & Coun., 303 A.2d 701 (Del. Ch. 1973).
The Majority Decision Nullifies Due Process
Rights of Surrounding Property Owners In applying the exhaustion doctrine, the majority has misread both the applicable county ordinances and RCW 58.17.180, which grants review rights to aggrieved property owners. The unfortunate result of this decision is to deny property owners judicial review of governmental action which substantially affects their property interests. This deprives the Association members of property rights without due process in violation of the fourteenth amendment to the United States Constitution.
In Fuentes v. Shevin, 407 U.S. 67, 80-81, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972), the Supreme Court stated:
The constitutional right to be heard is a basic aspect of the duty of government to follow a fair process of deci-sionmaking when it acts to deprive a person of his possessions. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment — to minimize substantively unfair or mistaken deprivations of property, a danger that is especially great when the State seizes goods simply upon the application of and for the benefit of a private party. So viewed, the prohibition against the deprivation of property without due process of law reflects the high value, embedded in our constitutional and political history, that we place on a person's right to enjoy what is his, free of governmental interference.
We have consistently recognized that persons residing within an area encompassed in a zoning action have a sufficient protected interest to challenge the action. Byers v. *86Board, of Clallam Cy. Comm'rs, 84 Wn.2d 796, 529 P.2d 823 (1974); Anderson v. Island Cy., 81 Wn.2d 312, 501 P.2d 594 (1972). The record in this case contains affidavits from 21 neighboring property owners who comprise the Association, specifically setting forth the detrimental effects on their property interests which will result from this proposed subdivision.4 The majority's decision to deny these property owners judicial review of the Council action effectively allows the "arbitrary encroachment" on property interests which due process is designed to prevent.
Ill
The second issue presented is whether the Association's amended pleading, filed after the expiration of the 30-day limitation period prescribed in RCW 58.17.180 and King County Code 20.24.240(A), relates back to the date of original filing. The majority holds the amendment could not relate back in this case because the failure of the Association to research the real estate records to ascertain the record owner of the property constitutes inexcusable neglect. I disagree. A statutory right of appeal should not be predicated on so flimsy a condition as the continual checking of real estate records in order to obtain justice in our court system.
Burnstead Construction Company was the original plat applicant and held itself out at all public hearings as the owner of the property. Burnstead sold the property to the Mowats on July 29, 1980, while the plat application was still pending. Due process should mandate that if the applicant sells his property interest during the application process, he must advise the Council immediately. If he fails to do so, no aggrieved property owner should be prejudiced.
The Association amended its pleading immediately upon receiving notice that the Mowats were record owners of the *87property. Under CR 15(c) an amendment adding a new party relates back to the date of the original pleading if (1) the new party had adequate notice of the action, and (2) the new party knew or should have known that, but for a mistake, the action would have been brought against him. When the Mowats purchased the property, they took subject to any appeals which might be taken from the Council's decision on the plat application. They had notice of this action and would in no way be prejudiced by allowing judicial review of the Council's decision. See Miller v. Issaquah Corp., 33 Wn. App. 641, 657 P.2d 334 (1983). I would hold the amended pleading relates back to the original application and reinstate the Association's statutory right to judicial review.
Conclusion
As the examiner exercises only an advisory function to the Council, he has no authority to enact an ordinance or even issue a final order. The Council alone performs the quasi-legislative function of enacting zoning ordinances. The statute provides that any aggrieved party has the right to appeal the passage of any such ordinances for a 30-day period. The Association was such an aggrieved party and cannot be prohibited from such an appeal to the superior court for the reason they didn't appeal the examiner's recommendation. Its appeal should be reinstated.
Pearson, J., concurs with Dore, J.
Reconsideration denied April 2, 1984.
Unknown to objecting property owners, Burnstead Construction Company had sold the property, which was the subject of the rezone application, to the *81Mowats during the quasi-legislative process.
At the time this action was commenced in 1980, RCW 58.17.180 provided:
"Any decision approving or disapproving any plat shall be reviewable for unlawful, arbitrary, capricious or corrupt action or nonaction by writ of review before the superior court of the county in which such matter is pending. The action may be brought by any property owner in the city, town or county having jurisdiction, who deems himself aggrieved thereby: Provided, That application for a writ of review shall be made to the court within thirty days from any decision so to be reviewed. The cost of transcription of all records ordered certified by the court for such review shall be borne by the appellant."
RCW 58.17.180 was amended by the Legislature, Laws of 1983, ch. 121, § 5.
This court has recognized the right of nonprofit associations to represent the interests of property owners in proceedings for judicial review of local zoning actions. Save a Valuable Env't v. Bothell, 89 Wn.2d 862, 576 P.2d 401 (1978); Loveless v. Yantis, 82 Wn.2d 754, 513 P.2d 1023 (1973).