Steve Berschauer v. Dep't Of Enterprise Services, City of Olympia
34970-5
| Wash. Ct. App. | Dec 12, 2017Background
- In September 2011 the City of Olympia approved and the State recorded Boundary Line Adjustment (BLA) No. 11-0135, altering property lines affecting land the State claimed and land Berschauer claimed by adverse possession.
- Berschauer obtained a November 20, 2015 superior court judgment declaring he and predecessors adversely possessed a portion of the property (claim starting in the 1960s).
- On December 4, 2015 Berschauer sued for a declaratory judgment that the City’s 2011 BLA was void ab initio because the submitted map lacked the acknowledged signature of every person with an interest (former OMC 17.30.030(5)).
- The City and State moved to dismiss under CR 12(b)(6) as time-barred by the Land Use Petition Act (LUPA)’s 21-day limitations period; the trial court granted dismissal.
- The Court of Appeals reviewed de novo and held LUPA governed challenges to land use decisions (including alleged void approvals) and that the BLA issuance date was December 21, 2011 (recordation), making Berschauer’s 2015 suit untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a declaratory challenge to the BLA is governed by LUPA | Berschauer: City’s failure to require all acknowledged signatures made the BLA void ab initio and therefore not subject to LUPA’s 21‑day deadline | City/State: LUPA covers challenges to land use decisions including alleged void approvals; 21‑day limit applies | Court: LUPA applies; claim time‑barred |
| If LUPA applies, when did the 21‑day period begin to run? | Berschauer: Period did not start because BLA was never actually approved (noncompliant) or started only when he learned of adverse possession ruling in 2015 | City/State: LUPA prescribes issuance rules; BLA was issued by recordation on Dec 21, 2011; plaintiff’s awareness not required | Court: Issuance date per RCW 36.70C.040(4)(c) is recordation (Dec 21, 2011); knowledge irrelevant; claim untimely |
| Whether the City’s failure to obtain Berschauer’s signature renders action void (challenge not time‑barred) | Berschauer: Signature requirement made approval void ab initio so it can be attacked any time | City/State: The City had authority to approve BLAs; omission rendered the action voidable (procedural defect), not ultra vires/void | Court: The defect was voidable, not void; LUPA’s constraints apply |
| Whether prevailing defendants are entitled to appellate fees under RCW 4.84.370 and whether fee request complied with RAP 18.1(b) | Berschauer: Deny fees because victory was procedural and the request failed RAP 18.1(b) formalities | City/State: Seek fees and costs; State included a discrete paragraph requesting fees in its opening brief | Held: State entitled to reasonable fees (meets RAP 18.1(b)); City not entitled under RCW 4.84.370(2) absent prevailing on merits |
Key Cases Cited
- Habitat Watch v. Skagit County, 155 Wn.2d 397 (2005) (LUPA governs challenges to land use decisions, including those alleged to be void, and establishes the 21‑day appeal period)
- South Tacoma Way, LLC v. State, 169 Wn.2d 118 (2010) (distinguishes void v. voidable governmental actions outside LUPA context)
- Bilanko v. Barclay Court Owners Ass'n, 185 Wn.2d 443 (2016) (statutory noncompliance generally makes actions voidable unless legislature prescribes otherwise)
- Chelan County v. Nykreim, 146 Wn.2d 904 (2002) (declaratory challenge to boundary line adjustment is reviewable under LUPA)
- Durland v. San Juan County, 182 Wn.2d 55 (2014) (LUPA defines when a land use decision is final for appeal purposes)
- Samuel's Furniture, Inc. v. Dep't of Ecology, 147 Wn.2d 440 (2002) (finality turns on whether the administrative decision reached the merits and terminated the process)