Opinion
No. 30939-4-II.
Filed: February 3, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Clallam County. Docket No. 02-2-01168-6. Judgment or order under review. Date filed: 09/05/2003.
Counsel for Appellant(s), Jerry Levesque (Appearing Pro Se), 290 West Washington, Sequim, WA 98382.
Counsel for Respondent(s), Lauren Michele Erickson, Attorney at Law, Clallam Co Prosc Atty Ofc, 223 E 4th St, Port Angeles, WA 98362-3015.
Clallam County issued a citation to Jerry and Alana Levesque, and Bob Forde (property owners) regarding particular improvements they made to their property. Neither the Levesques nor Ford appealed the Board of Commissioners' ruling upholding the citation. But they do appeal from the superior court's summary judgment ruling in favor of the County. Because the appellants failed to timely appeal the Board's ruling, we affirm.
Facts
The property owners own property in Clallam County (tax parcel 04-31-25-35-0130) bordering the Dungeness River and located within a floodway. In February 2000, the property owners placed a trailer and a below ground septic holding tank on the site. In September 2000, the County issued a Notice of Violation and Order to Cease and Desist, ordering, among other things, the removal of the septic holding tank.
The property owners appealed the order regarding the septic tank removal. But the Clallam County Hearing Examiner upheld the requirement. The Board of County Commissioners then heard the matter and, on July 2, 2002, it issued Resolution 61, affirming the septic tank removal order. It found that the activity on the property violated the Clallam County critical Areas Ordinance and the Washington Administrative Code, that the County had 'gone a long way in trying to accommodate' the property owners, and that the Hearing Examiner 'does not have the authority to re-write the laws or the Clallam County Codes.' Br. of Respondent at Appendix p. 2. The Levesques and Forde did not appeal Resolution 61.
Over six months later, the County moved for summary judgment in superior court, relying on the Land Use Petition Act (LUPA) requirement that any appeal of a land use decision be filed within 21 days of a final decision. The superior court granted the County's motion in March 2003.
Forde and the Levesques now seek to appeal the summary judgment, arguing that (1) material issues of fact preclude summary judgment, (2) LUPA does not control here because the superior court had original jurisdiction, and (3) the superior court erroneously recognized Clallam County as a legal entity.
Analysis
When reviewing a summary judgment, we engage in the same inquiry as the trial court, reviewing the decision de novo. Failor's Pharmacy v. Dep't of Soc. Health Servs., 125 Wn.2d 488, 493, 886 P.2d 147 (1994). We consider all facts and reasonable inferences in the light most favorable to the nonmoving party and will affirm if there are no genuine issues of material fact and the moving party was entitled to judgment as a matter of law. CR 56(c); Failor's Pharmacy, 125 Wn.2d at 493.
I. Issues of Material Fact
The Levesques and Forde argue that summary judgment was not appropriate here because there are genuine issues of material fact. The County responds that there are no genuine issues of material fact because the property owners failed to timely appeal. We agree.
LUPA provides the exclusive avenue for appealing a land use decision. RCW 36.70C.030(1). A land use decision is 'a final determination by a local jurisdiction's body or officer with the highest level of authority to make the determination, including those with authority to hear appeals.' RCW 36.70C.020(1).
The Clallam County Board of Examiners made a final decision on the issuance of the Notice of Violation and Cease and Desist Order, upholding the citation. The next available option for the property owners was to appeal to the superior court under LUPA.
A superior court may not grant review of a final land use decision absent a timely filed petition. 'The petition is timely filed if it is filed . . . within twenty-one days of the issuance of the land use decision.' RCW 36.70C.040(3). Further, recent Supreme Court decisions addressing similar bars to review based on RCW 36.70C.040 support requiring strict adherence to LUPA's statutory time limits. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 180-81, 4 P.3d 123 (2000); Chelan County v. Nykreim, 146 Wn.2d 904, 917, 52 P.3d 1 (2002). Given the absence of an appeal filed within 21 days of the Commissioners final decision, the superior court did not err in granting summary judgment.
The property owners, who appeared in superior court and appear here pro se, argue that the court should apply a liberal construction to procedural requirements in this case because they are not attorneys. They suggest this proposition with numerous citations to cases from other jurisdictions. Many of these cases, in addition to not being controlling authority in Washington, are not on point. See Patterson v. Superintendent of Pub. Instruction, 76 Wn. App. 666, 671, 887 P.2d 411 (1994) ('A litigant appearing pro se is bound by the same rules of procedure and substantive law as his or her attorney would have been had the litigant chosen to be represented by counsel').
II. Applicability of LUPA
The property owners next assert that LUPA is inapplicable here because the superior court had original jurisdiction. But they fail to note that because they raised their claims with the Hearing Examiner and Board of County Commissioners, the superior court was acting in its appellate capacity, and did not have original jurisdiction. RCW 2.08.020.
Again, LUPA provides the exclusive avenue for appellate review of a final land use decision by a local jurisdiction. RCW 36.70C.010; RCW 36.70C.030. Thus, LUPA's statutory time requirements apply. RCW 36.70C.040.
III. Clallam County as a Legal Entity
Finally, the property owners argue that the superior court improperly assumed that Clallam County is a legal entity that has the capacity to bring a summary judgment motion. This argument is meritless. The State recognizes Clallam County as a legal entity with the capacity to sue and be sued. RCW 36.04.050; RCW 36.01.010.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN, P.J., HOUGHTON, J., concur.