Berschauer v. State

STEVE BERSCHAUER, Appellant, v. STATE OF WASHINGTON, DEPARTMENT OF ENTERPRISE SERVICES;PUGET SOUND ENERGY, INC., a Washington State Public Utilities Corporation;FYI PROPERTIES, a Washington nonprofit corporation;THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION,as Trustee Under Indenture of Trust Dated As Of August 1, 2009and THE CITY OF OLYMPIA, Respondents.

No. 34970-5-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

December 12, 2017

UNPUBLISHED OPINION

SIDDOWAY, J. — Steve Berschauer appeals the trial court's dismissal of his declaratory judgment action seeking to invalidate a boundary line adjustment approved by the city of Olympia (City) in September 2011. His action was time-barred under the Land Use Petition Act (LUPA), chapter 36.70C RCW. We affirm.

PROCEDURAL BACKGROUND

On December 4, 2015, Steve Berschauer filed the action below, seeking a declaration that the city of Olympia's boundary line adjustment to property the State of Washington represented to be state-owned was void ab initio. He sought a court-ordered reversion of boundaries to those existing before the adjustment. Mr. Berschauer claimed that contrary to the requirements of a City ordinance, the City approved an application for the adjustment he had not signed, even though it affected real property to which he held title by adverse possession.

Former Olympia Municipal Code (OMC) 17.30.030 (2006)¹ provided that the City's planning department was to certify as compliant and approve a proposed boundary line adjustment "if and only if seven requirements were met. One was that "[t]he map includes acknowledged signatures of all parties having an interest in lots the lines of which are being adjusted." Id.; Clerk's Papers (CP) at 14-15. Former OMC 17.30.040 (2006), the code provision following the list of requirements, stated that "the boundary line adjustment shall not be final until . . . [t]here is compliance with the requirements [in OMC 17.30.030]." CP at 15. The map submitted by the State in support of its proposedboundary line adjustment bore the acknowledged signature of only the director of its Department of Enterprise Services.

Attached to Mr. Berschauer's complaint in this action was an order of the Thurston County Superior Court entered two weeks earlier in Cause No. 13-2-02519-9, determining by summary judgment that Mr. Berschauer and his predecessors had adversely possessed a part of the property affected by the State's proposed boundary line adjustment. The order decreed that the 10 year period of adverse possession started with the building of a fourplex that it is undisputed took place in the 1960s.²

Mr. Berschauer's complaint acknowledged that the boundary line adjustment being challenged for the first time in 2015 had been approved by the City "in late 2011, under BLA³ No. 11-0135." CP at 6. It was later demonstrated that the boundary line adjustment was recorded on December 21, 2011.

In answering the complaint, the defendants asserted that Mr. Berschauer's claim was barred by the statute of limitations. The City soon moved under CR 12(b)(6) and12(c) to dismiss the complaint as time-barred under LUPA, and the State joined the motion. At the hearing on the motion, the fact that Mr. Berschauer had remedial options other than collaterally attacking the boundary line adjustment was raised in questioning by the trial court and mentioned in its oral ruling. See Report of Proceedings (Feb. 26, 2016) at 7-8, 21. The court granted summary judgment to the City and State on the basis that Mr. Berschauer's action was time-barred, however. Mr. Berschauer appeals.

ANALYSIS

The legislative purpose in enacting LUPA was to "establish[ ] uniform, expedited appeal procedures and uniform criteria for reviewing [land use] decisions, in order to provide consistent, predictable, and timely judicial review." RCW 36.70C.010. "[LUPA] establishes a uniform 21-day deadline for appealing the final decisions of local land use authorities and is intended to prevent parties from delaying judicial review at the conclusion of the local administrative process." Habitat Watch v. Skagit County, 155 Wn.2d 397, 406, 120 P.3d 56 (2005). LUPA's statute of limitations begins to run on the date a land use decision is "issued" and dictates the exact date a decision is issued based on the nature of the decision. Id. at 409; RCW 36.70C.040(4)(a).

A declaratory judgment action challenging the validity of a boundary line adjustment is subject to review under LUPA. Chelan County v. Nykreim, 146 Wn.2d 904, 929, 52 P.3d 1 (2002). Despite a four year time gap between the adjustment and his lawsuit, Mr. Berschauer contends his claim was not time-barred because the City's failureto abide by the municipal code's signature requirement made its approval of BLA No. 11-0135 void ab initio, and subject to challenge at any time. He also makes passing argument, citing Habitat Watch, that the 21-day limitations period never began to run or that it began to run only when he prevailed, in part, on his adverse possession claim.

We review de novo a trial court's decision to grant a CR 12(b)(6) motion. San Juan County v. No New Gas Tax, 160 Wn.2d 141, 164, 157 P.3d 831 (2007).

LUPA's 21-day statute of limitations applies

By its terms, LUPA applies to claims that a "body or officer that made the land use decision engaged in unlawful procedure or failed to follow a prescribed process." RCW 36.70C.130(1)(a). It also expressly applies to claims that "[t]he land use decision is outside the authority or jurisdiction of the body or officer making the decision." RCW 36.70C.130(1)(e). In Habitat Watch, our Supreme Court relied on this language to hold that under LUPA, "defects in land use determinations that could have resulted in decisions that were void ab initio under pre-LUPA cases fall within LUPA, with its express 21-day limitation period." 155 Wn.2d at 407. Elsewhere, the Court stated that a challenge to a land use decision "lies within LUPA—even where the decision is allegedly void." Id. at 408.

Mr. Berschauer tries to avoid this clear holding of Habitat Watch by suggesting that the decision is anomalous and perhaps no longer good law after South Tacoma Way, LLC v. State, 169 Wn.2d 118, 233 P.3d 871 (2010) and Bilanko v. Barclay Court OwnersAss'n, 185 Wn.2d 443, 450, 375 P.3d 591 (2016). Both of those cases apply the historic distinction between actions that are only voidable and therefore subject to the statute of limitations, and those that are void and "subject to challenge and invalidation at any time, perhaps years later." South Tacoma, 169 Wn.2d at 124. But South Tacoma and Bilanko did not involve a challenge to land use planning decisions subject to LUPA. They represent a distinction between void and voidable decisions that exists in non-LUPA cases but that Habitat Watch holds does not apply under LUPA.

We also agree with the City and State that even if land use decisions could be defective in ways making them void ab initio after LUPA, the City's unwitting approval of the State's noncompliant application would be voidable, not void. South Tacoma provided examples of cases in which the Court has articulated why a government's mere violation of its statutes does not make its action void:

In Wendel [v. Spokane County, 27 Wash. 121, 123-24, 67 P. 576 (1902)], this court held that a municipal corporation is liable for—and thus bound by—only those actions it had the general authority to perform. Over the years, we have repeatedly upheld this distinction, maintaining that a government action is truly ultra vires only if the agency was without authority to perform the action. Bd. of Regents v. City of Seattle, 108 Wn.2d 545, 552, 741 P.2d 11 (1987) ("An act of an officer which is within his realm of power, albeit imprudent or violative of a statutory directive, is not ultra vires."); Haslund v. City of Seattle, 86 Wn.2d 607, 622, 547 P.2d 1221 (1976) ("An ultra vires act is one performed without any authority to act on the subject."); Finch v. Matthews, 74 Wn.2d 161, 172, 443 P.2d 833 (1968) (stating that an entity is bound by "acts which are within the scope of the broad governmental powers conferred, granted or delegated, but which powers have been exercised in an irregular manner or through unauthorized procedural means").

169 Wn.2d 118 at 122-23. See accord Bilanko, 185 Wn.2d at 450-51 ("Actions that fail to comply with statutory requirements are generally not void unless the legislature has authorized such a penalty."). Approving a boundary line adjustment is an action the City had the power to perform. By not requiring the signature of Mr. Berschauer on the application, the City merely violated a directive of the municipal code (unwittingly, since Mr. Berschauer's title was not yet a matter of record). The boundary line adjustment was voidable if timely challenged, but not void.

LUPA's 21-day statute of limitations applied to Mr. Berschauer's challenge to the boundary line adjustment.

Mr. Berschauer's claim was time-barred under LUPA

As a fall back argument, Mr. Berschauer points out that "[e]ven if Habitat Watch applies, the court in that case noted that the LUPA limitations period does not begin to run until a land use decision is issued," and "here, the boundary line adjustment was never actually approved . . . because it did not comply with the requirement of [former] OMC 17.30.030(5) that the map bear the acknowledged signature of every person with an interest in the property." Br. of Appellant at 10.

Consistent with LUPA's objective of providing uniform appeal procedures and consistent and predictable judicial review, it defines when government action is a "landuse decision," including when a decision is final. Durland v. San Juan County, 182 Wn.2d 55, 65, 340 P.3d 191 (2014) (county's definition of "final" determination was irrelevant; LUPA's definition of "land use decision" controls). A land use decision is final under LUPA when any administrative...