Opinion
No. 29772-8-II.
Filed: March 2, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Lewis County. Docket No: 02-2-01035-9. Judgment or order under review. Date filed: 11/15/2002. Judge signing: Hon. H John Hall.
Counsel for Appellant(s), Lewis Handfield Jr Zieske, Attorney at Law, 139 NW Chehalis Ave, Chehalis, WA 98532-2010.
Counsel for Respondent(s), Douglas Emry Jensen, Attorney at Law, Ms Pr001, 360 NW North St, Chehalis, WA 98532-1925.
Alexander Weal MacKie, Perkins Coie LLP, 111 Market St. NE Ste 200, Olympia, WA 98501-1017.
Douglas P. Ruth, Lewis Cnty Pros Ofc, 360 NW North St, Chehalis, WA 98532-1900.
Lewis County Superior Court dismissed a petition for review of a compliance order by the Western Washington Growth Management Hearings Board (Board) because petitioners failed to serve all parties of record, as required by the Washington Administrative Procedure Act (APA). The petitioners, collectively referred to here as Yanisch, appeal the dismissal. We affirm.
Annette Yanisch, Douglas Hayden, Dorothy Smith, Deanna M. Zieske, Edward Smethers, John T. Mudge, Evaline Community Association c/o June Wristen, Debra Burris, Michael T. Vinatieri, Eugene Butler, and Karen Knutsen.
FACTS
Between 1998 and 2001, the Board heard four different consolidated cases based on a number of individual challenges to Lewis County's development regulations and comprehensive plan drafted under the Growth Management Act (GMA). The Board issued a 78-page combined `Final Decision and Order/Compliance Order/Compliance Order' on the first three consolidated cases, No. 00-2-0031c, No. 99-2-0027c, No. 98-2-011c, on March 5, 2001. The March 5, 2001 order directed the County to comply with the GMA on a number of matters. Following additional petitions for review challenging amendments to the County's comprehensive plan, the Board issued a Final Decision and Order on the fourth and final consolidated case, No. 00-2-0010c, on July 10, 2001. This order determined that Lewis County was in compliance on some matters and not in compliance on others.
See chapter 36.70A RCW.
On April 4, 2002, in response to the July 10, 2001 order, Lewis County enacted Ordinance 1179 and Resolution 02-0131 and moved that the Board find Lewis County's comprehensive plan and development regulations in compliance with the two orders on the four consolidated cases. Following a public hearing that apparently took place in June 2002, the Board issued a final Compliance Order on July 10, 2002, finding that the County now complied with the GMA on most matters, but did not comply on a few others. Yanisch filed a motion for reconsideration on July 22, 2002; the Board denied reconsideration on August 19.
Some of the individuals involved in the underlying cases filed a Petition for Review under the APA on August 9, 2002, and, following the Board's entry of the Order on Reconsideration, they filed an Amended Petition for Review on September 9.
The Amended Petition for Review was signed by Annette Yanisch, Douglas Hayden, Dorothy Smith, Deanna M. Zieske, Edward Smethers, John T. Mudge, Evaline Community Association c/o June Wristen, Debra Burris, Michael T. Vinatieri, Eugene Butler, and Karen Knutsen. (Brenda Boardman and Tammy G. Baker had signed the original Petition for Review but not the amended petition.) Those who filed the amended petition are the current `petitioners' in this case.
On September 30, 2002, Lewis County filed a motion to dismiss the Petition for Review on the grounds that the petitioners had not served all `parties of record' or those parties included on the Board's declaration of service for the August 9, 2002 Order on Reconsideration. The County argued that because the Compliance Order and Order on Reconsideration encompassed all four consolidated cases, RCW 34.05.542 (the APA) required service on each of the parties to those four cases. Yanisch acknowledged that they did not serve all parties, but argued that some including Virginia Breen, Kodie and Jenny Baker had not participated in proceedings since 1999. Yanisch also asserted that three others, Richard Burris, Robert Schanz, and Susan Lamoreaux, had elected not to join in the July 2002 compliance hearing. And Yanisch claimed that the final three, Brenda Boardman, Dan Smith, and Tammy Baker, had participated in the decision on whether to appeal the Compliance Order but finally decided not to sign onto the Amended Petition for Review.
Parties not served, according to the County's motion to dismiss, were the Port of Chehalis, the Cities of Centralia, Chehalis, Napavine, Morton, Vader, and Winlock, and `underlying WWGMHB petitioners' Kodie Baker, Jenny Baker, Virginia Breen, Richard Burris, Susan Lamoreaux, Vince Panesko, and Robert Schanz. Clerk's Papers (CP) at 149. However, Kodie Baker and Jenny Baker were not included in the Declaration of Service for the Order on Reconsideration. And apparently the cities had been served but proof of service had not yet been filed when the County filed its motion.
The Lewis County Superior Court ruled that under Litowitz v. Central Puget Sound Growth Management Hearings Board, 93 Wn. App. 66, 966 P.2d 422 (1998), and RCW 34.05.542, service on parties of record was a jurisdictional prerequisite and dismissed the Yanisch petition.
The trial court also rejected petitioners' argument that throughout the proceedings, the Board had treated those in the `Butler group' (presumably, parties in Butler v. Lewis County, consolidated Case No. 99-2-0027c), as a single entity and that therefore petitioners should not be required to serve the individual members.
Yanisch appeals the trial court's dismissal of the Petition for Review of the Board's July 10, 2002 Compliance Order.
ANALYSIS (1) Dismissal of Petition
Like the trial court, we find Division One's reasoning in Litowitz persuasive.
In that case, five married couples brought an action before the Central Puget Sound Growth Management Hearings Board challenging Federal Way's comprehensive plan under the GMA. The city prevailed. Only two of the Litowitz couples appealed the Central Puget Sound Board's decision. They served the city but did not serve the other three couples. The trial court dismissed the case for failure to comply with service requirements under the APA. Division One affirmed the dismissal, rejecting the petitioner's argument that because the other couples were represented by the same attorney as the Litowitzes, service was not required. Litowitz, 93 Wn. App. 66.
Yanisch's explanation for the petitioners' failure to serve the parties differs somewhat from that in Litowitz. But RCW 34.05.542(2), the statute conferring jurisdiction on the superior court to review decisions of the Growth Management Hearings Board, states that a `petition for judicial review of an [agency] order shall be filed with the court and served on the agency, the office of the attorney general, and all parties of record within thirty days after service of the final order.' (Emphasis added.)
Neither the APA nor the GMA define `parties of record' as used in RCW 34.05.542(2). But the Litowitz court resolved this issue, stating:
In the present case, the court's oral ruling and written order did not make clear which parties it considered the parties of record not served.
A `party of record' is not synonymous with a `party to judicial review.' It refers instead to persons to whom the agency action is specifically directed or persons named as a party in the agency proceeding under [current RCW 34.05.010(12)]. Thus, in order to avoid dismissal of the petition for failure of service, service upon `all parties of record' must be read as requiring service upon all parties in the agency proceeding. The Litowitzes failed to serve all parties of record, and as a result, failed to invoke the jurisdiction of the court. Dismissal was appropriate.
Litowitz, 93 Wn. App. at 69. See also Technical Employees Ass'n v. Pub. Employment Relations Comm'n, 105 Wn. App. 434, 438, 20 P.3d 472 (2001) (A `party' to agency proceedings, within the meaning of jurisdictional requirement that a petition for judicial review of an agency order must be filed with all parties of record, means a person named as a party to the agency proceeding or allowed to intervene or participate as a party in the agency proceeding.).
Yanisch contends, for example, that Brenda Boardman, Tammy Baker, and Dan Smith received actual notice and that, therefore, the petitioners `substantially complied' with the APA requirement to serve all parties of record. But even substantial compliance with the service requirements of the APA is not sufficient to invoke the appellate, or subject matter, jurisdiction of the superior court. Diehl v. W. Washington Growth Mgmt. Hearings Bd., 118 Wn. App. 212, 221, 75 P.3d 975 (2003) (citing Skagit Surveyors Eng'rs, LLC v. Friends of Skagit County, 135 Wn.2d 542, 556, 958 P.2d 962 (1998)).
Litowitz and the APA require service on all parties involved in the agency proceeding being challenged. Yanisch failed to comply with these service requirements, and the trial court properly dismissed the petition.
Our resolution of this case based on Yanisch's failure to satisfy APA service requirements obviates our need to address Lewis County's contentions that the case should be dismissed, even if reversed and remanded, because Yanisch paid only one filing fee to the superior court while requesting review of four underlying Board decisions.
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.
HOUGHTON, J., ARMSTRONG, J., concur.