Opinion
No. 35171-4-II.
May 30, 2007.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 05-2-01625-7, James J. Stonier, J., entered July 7, 2006.
John Bichler appeals the trial court's dismissal of his Land Use Petition (LUPA) against Cowlitz County for lack of jurisdiction. He argues that the superior court erred in ruling that the real estate contract vendor, Gabriel D. Goro, is an indispensable party under RCW 36.70C.040(2)(b) because (1) the parties waived the alleged defect of failure to join necessary parties and, subsequently, the trial court entered an order waiving this defect; and (2) Goro, who retained an interest in the property equivalent to only a mortgage interest, not an ownership interest, was not the taxpayer of record as a matter of law.
Chapter 36.70C RCW.
We affirm.
FACTS I. Background
On May 23, 2001, buyers John Bichler and Marianne Southworth entered into a real estate contract with seller Gabriel Goro to purchase land in Ryderwood, Cowlitz County, Washington (Tract 13). Ryderwood, a senior community, is located near Tract 13. Ryderwood Improvement and Service Association, Inc. (RISA), a nonprofit corporation, owns property and provides services to its members in Ryderwood and the surrounding areas.
Marianne Southworth passed away before this appeal.
Bichler purchased Tract 13 for $40,000, paying $15,000 as a down payment. He financed the remainder until April 30, 2007, making $300 monthly payments to Goro. Bichler was to receive a statutory warranty deed upon completion of his payments. Bichler's real estate contract with Goro required Bichler to pay all the property taxes, assessments, and utility liens on the property:
12. TAXES, ASSESSMENTS AND UTILITY LIENS. Buyer agrees to pay by the date due all taxes and assessments becoming a lien against the property after the date of this Contract. Buyer may in good faith contest any such taxes or assessments so long as no forfeiture or sale of the property is threatened as a the result of such contest.
Clerk's Papers (CP) at 115. But Goro was still listed as the tax payer in the County records.
Under the Cowlitz County Comprehensive Plan, Tract 13 was zoned "Forestry Recreation," which permits recreational activities such as hiking, horseback riding, and hunting. A special use permit is necessary for other activities compatible with the character of the area.
In 2001 and 2002, without seeking a special use permit, Bichler began to develop Tract 13 as a private recreational vehicle (RV) campground and shooting range for his family and friends. He placed 14 camping spaces on a cleared portion of the property and constructed two "cabanas."
II. Procedure A. Hearing Examiner Denial of Special Use Permit
After receiving notice from Cowlitz County about his improper property use, Bichler applied for a special use permit. A County hearing examiner denied Bichler's permit application because his campground and shooting range would (1) benefit only a limited number of people, (2) adversely affect the surrounding senior community, and (3) create a precedent for changes to the detriment of the community.
On August 22, 2005, the hearing examiner ordered abatement of Bichler's property use violations. The hearing examiner's decision identified vendor Goro as the property owner; it identified Bichler and Southworth as the contract purchasers. The hearing examiner also referenced the real estate contract, which contained Goro's address. Bichler did not appeal the hearing examiner's finding that Goro owned the land.
B. LUPA Petition
On September 9, 2005, Bichler filed a LUPA petition in superior court, naming Cowlitz County as respondent and requesting permission to use the land as an RV campground and shooting range. Bichler did not serve Goro, or challenge the hearing examiner's finding that Goro owned Tract 13.
Cowlitz County did not challenge jurisdiction. Instead, it entered into a stipulation with Bichler waiving the necessary-party jurisdictional defenses listed in RCW 36.70C.080(3). Based on this stipulation, on October 17, the trial court ordered, in part:
5. The Defenses enumerated in RCW 36.70C.080(3) are hereby waived and may not be raised hereafter by any party;
6. There are no jurisdictional or procedural issues that require a hearing as contemplated by RCW 36.70C.080(1).
Clerk's Papers (CP) at 217 (emphasis added).
C. Intervention by RISA
In December, RISA became aware of Bichler's LUPA action and intervened to challenge jurisdiction. On December 14, Bichler, Cowlitz County, and RISA entered in to a stipulation allowing RISA to intervene as respondent.
On January 10, 2006, RISA filed its brief in the LUPA action. RISA argued that Bichler had failed to comply with RCW 36.70C.040(2)(b)(ii) when he did not mail a copy of his LUPA petition to Goro, identified by name and address in the hearing examiner's written decision as the owner of the property.
D. Dismissal of LUPA Petition for Lack of Jurisdiction
On February 10, the trial court heard Bichler's LUPA petition. RISA challenged the trial court's jurisdiction based on Bichler's failure to comply with RCW 36.70C.040(2)(b)(ii). Bichler did not formally object to this challenge.
On March 29, the trial court ruled that it lacked jurisdiction to hear Bichler's LUPA petition because the record did not show any effort to provide notice to Goro. The trial court noted that the hearing examiner's written record identified Goro as the deed holder and taxpayer for Tract 13, and it contained Goro's address. Thus, the trial court dismissed Bichler's LUPA petition for lack of jurisdiction.
The record shows that the Cowlitz County Assessor listed Goro as the owner of Tract 13 for tax purposes, but erroneously listed Tract 13 as Goro's address at the time.
On June 15, the trial court denied Bichler's motion for reconsideration, stating that service on persons identified as owners is a jurisdictional requirement of a LUPA petition. Bichler appeals.
ANALYSIS
Bichler contends that the superior court erroneously dismissed his LUPA petition for lack of jurisdiction. We disagree.
Bichler argues that the superior court erred in ruling that a real estate contract vendor is a necessary party under RCW 36.70C.040(2)(b)(ii) because Goro, the contract vendor, retained an interest in the land equivalent only to that of a mortgagee.
But Bichler offers no explanation of why a mortgagee's interest is too minimal to warrant notice of a LUPA petition. Moreover, this argument has no bearing on the pivotal issue here — whether Goro was an "owner" on whom service was required for purposes of conferring jurisdiction on the superior court under LUPA.
The County responds that RCW 36.70C.040(2)(b)(ii) bars review of Bichler's LUPA petition because he failed to serve Goro. Bichler does not dispute that he failed to serve Goro with the LUPA petition. Instead, he cites cases discussing the nature of the interest a contract seller (vendor) holds as opposed to a contract buyer (vendee). But the cases that Bichler cites do not reflect the specific circumstances or statutory provisions that apply here.
RCW 36.70C.040 LUPA provides:
(2) A land use petition is barred, and the court may not grant review, unless the petition is timely filed with the court and timely served on the following persons who shall be parties to review of the land use petition:
. . . .
(b) Each of the following persons if the person is not the petitioner:
. . . .
(ii) Each person identified by name and address in the local jurisdiction's written decision as an owner of the property at issue.
RCW 36.70C.040 (emphasis added).
We may grant relief under LUPA when a party establishes that the "land use decision is an erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise." RCW 36.70C.130(1)(b); See also Dep't of Ecology v. Pub. Util. Dist. No. 1, 121 Wn.2d 179, 201, 849 P.2d 646 (1993), aff'd, 511 U.S. 700 (1994). Our review is de novo for a superior court's LUPA decisions and for questions of subject matter jurisdiction. Dougherty v. Dep't of Labor Indus., 150 Wn.2d 310, 314, 76 P.3d 1183 (2003); HJS Dev., Inc. v. Pierce County, 148 Wn.2d 451, 468, 61 P.3d 1141 (2003).
LUPA's procedural requirements must be strictly met before a trial court's appellate jurisdiction under the Act is properly invoked. Overhulse Neighborhood Assoc. v. Thurston County, 94 Wn. App. 593, 597, 972 P.2d 470 (1999) (petition properly dismissed where service was on county commissioner rather than auditor as required by statute). The trial court may not hear a land use petition if the petitioner fails to serve it timely on certain persons designated by statute as necessary parties to the review. Citizens to Preserve Pioneer Park L.L.C. v. City of Mercer Island, 106 Wn. App. 461, 467, 24 P.3d 1079 (2001). Such is the case here.
Bichler's ownership of the property at issue and his payment of property taxes do not defeat (1) Goro's co-existent "ownership" within the meaning of LUPA — any person identified as an owner in the local jurisdiction's written decision and (2) LUPA's accompanying strict requirement that such owner must be served with the LUPA petition. RCW 36.70C.040(2)(b)(ii). At his peril, Bichler failed to comply with our Legislature's strict procedural and jurisdictional requirements for judicial review of his LUPA petition — that he serve Goro, a property owner under the local hearing examiner's decision. We hold, therefore, that the superior court properly dismissed Bichler's LUPA petition for failure to comply with statutory jurisdictional requirements, specifically, serving his petition on Goro.
Washington courts have consistently held that a vendee's interest in a real estate contract, such as Bichler's, makes him the owner of the real property. See Freeborn v. Seattle Trust Sav. Bank, 94 Wn.2d 336, 340, 617 P.2d 424 (1980) (characterizing vendee's interest as real property and vendor's interest as personal property); Cascade Sec. Bank v. Butler, 88 Wn.2d 777, 782, 567 P.2d 631 (1977) (real estate contract vendee's interest is "real estate" within the meaning of the judgment lien statute). These facts, however, do not disprove that Goro met the LUPA criteria for being an "owner" of the land, whom Bichler was required to serve, even if Goro was in reality only Bichler's lender, holding the subject property as collateral.
We note that even in his LUPA petition, Bichler concedes that the "written decision of the Hearing Examiner identified Gabriel D. Goro as the taxpayer of record." CP at 2 (Par 1.4). We reiterate that Bichler did not seek to challenge the hearing examiner's finding, but rather, left it intact. In addition, the record shows that as of November 30, 2005, the Cowlitz County Assessor listed Goro as the taxpayer of record.
Washington courts have consistently held that property owners are necessary and indispensable parties in land use cases. See, e.g., Nat'l Homeowners Ass'n v. City of Seattle, 82 Wn. App. 640, 643-44, 919 P.2d 615 (1996), Waterford Place Condo. Ass'n v. Seattle, 58 Wn. App. 39, 42, 791 P.2d 908 (1990). As the person most affected in any review proceeding, the landowner is an indispensable party in land use cases, "the purpose of which is to invalidate or otherwise affect the use of his property." Nolan v. Snohomish County, 59 Wn. App. 876, 880, 802 P.2d 792 (1990), rev. denied, 116 Wn.2d 1020 (1991).
Because we affirm the trial court's dismissal of Bichler's LUPA petition for lack of jurisdiction, we need not address his remaining issues on appeal.
Affirmed.
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.
ARMSTRONG, P.J. and PENOYAR, J. concur