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RST Partnership v. Chelan County

Court of Appeals of Washington, Division 3

June 13, 2019

RST PARTNERSHIP, Appellant,
v.
CHELAN COUNTY, a municipal corporation, Respondent. NSJB ENTERPRISE, INC., a Washington corporation d/b/a EVERGREEN PRODUCTION, Appellant,
v.
CHELAN COUNTY, a municipal corporation, Respondent.

          Fearing, J.

         Usually questions concerning service of process concern service of a summons, complaint, or petition on an opposing party. This case entails the unique posture of sufficient service of process on a cooperating party whose interests are identical to the petitioner. The appeal asks whether parties to a land use petition act (LUPA) action may agree to accept service of process by e-mail. We hold in the affirmative and reverse the trial court's dismissal of a petition for lack of timely service.

         FACTS

         The two appellants are RST Partnership (RST) and NSJB Enterprise, Inc. (NSJB), also known as Evergreen Productions, to whom we jointly refer to as "landusers." RST owns an industrial building in Monitor and leases the property to NSJB. NSJB utilizes the property for the purpose of operating a cannabis growing and processing business. On February 10, 2017, the Chelan County Department of Community Development issued RST a "Notice and Order to Abate Zoning and Building Code Violations Pursuant to Chapter 16.06 to the Chelan County Code." The notice and order listed violations of local regulations surrounding the production or processing of cannabis. The substance of those violations lack relevance to this appeal.

         On February 27, 2017, the landusers filed a joint notice of appeal of the notice and order to abate with the Chelan County hearing examiner. The landusers appeared with respective counsel before the hearing examiner on May 17, 2017, and presented argument and evidence during an administrative proceeding. On June 5, 2017, the hearing examiner authored findings of fact and conclusions of law affirming the notice and order. The findings identified RST and NSJB as appellants before the examiner.

         On June 6, 2017, Chelan County's counsel e-mailed a copy of the hearing examiner's decision to counsel for RST and NSJB. Chelan County attorney's e-mail read:

         I wanted to make sure you received a copy of Hearing Examiner Kottkamp's decision. Clerk's Papers (CP) at 87. On June 13, 2017, the Chelan County Community Development Department sent RST another copy of the hearing examiner's decision via e-mail. No Chelan County agent sent the hearing examiner's decision to RST or NSJB by certified or first-class mail.

         PROCEDURE

         On June 26, 2017, NSJB filed a land use petition that sought review of the hearing examiner's decision. On the same day, RST filed its own land use petition that sought review of the examiner's decision. The two petitions read similarly.

         Counsel for RST and NSJB knew of the other party's filing of a petition. The two counsel coordinated efforts with the understanding that their clients would later consolidate both cases. In the interest of time, both parties agreed to electronic service of each other's petition. In fulfillment of this agreement, counsel sent each other his respective client's petition by e-mail. According to NSJB attorney Taudd Hume's declaration:

Under that agreement, a copy of Evergreen's [NSJB's] LUPA petition was sent to Mr. Steinberg's office [RST's counsel] . . . on June 26, 2017.

         CP at 199. According to the declaration of RST's attorney Charles Steinberg:

Taudd Hume (counsel for Evergreen Production) and I coordinated our efforts as we prepared our respective LUPA Petitions for filing, with the understanding that we would ultimately consolidate both cases, and had exchanged drafts, he agreed to waive service of process of our LUPA petition, and we e-mailed him the conformed copy on June 28, 2017.

CP at 434-35 (grammar in original).

         Because counsel for NSJB officed outside Chelan County, RST's counsel directed his staff to physically serve a copy of NSJB's petition on the Chelan County auditor. Staff physically served the ...


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