Attorney Fees for LUPA Actions
In Gresh v. Okanogan County, No. 31394-8-III, the appellant brought an untimely LUPA claim and the court dismissed the petition. RCW 4.84.370(1) awards fees to the “prevailing” or “substantially prevailing” party in land use litigation. Respondent sought attorney fees because the court dismissed the petition. Division I and II disagreed on whether “prevail” means on the merits.
| Division | I | II | III |
| Original position | Statute only applies to final decisions on the merits. overhulse Neighborhood Ass’n v. Thurston County, 94 Wn. App. 593, 601, 972 P.2d 470 (1999) | ||
| Disagree | Statute says nothing about prevailing on the merits. Prekeges v. King County, 98 Wn. App. 275, 285-86, 990 P.2d 405 (1999). | ||
| Rebuttal | “legislature intended to allow attorney fees only to a party who prevails on the merits” and that a party does not “substantially prevail” under the statute when the appeal is decided on procedural grounds. Witt v. Port o/Olympia, 126 Wn. App. 752, 759, 109 P.3d 489 (2005); Quality Rock Prods., Inc. v. Thurston County, 126 Wn. App. 250, 275, 108 P.3d 805 (2005); Northshore Investors} LLCv. Cityo/Tacoma, 174 Wn. App. 678, 701, 301 P.3d 1049, review denied, 178 Wn.2d 1015 (2013) | ||
| Surrebuttal | Refused to back down from Prekeges. Durland v. San Juan County, 175 Wn. App. 316, 326, 305 P.3d 246 (2013) (A petition for review is pending under cause no. 89293-8) | ||
| Tie Breaker | Prevailing in aland use case is the only criterion for an award of attorney fees. The long-term orcollateral benefits of success are not a consideration.
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In its unpublished opinion last week Division III broke the tie and agreed with Division I that attorney fees are appropriate even when the party prevails on a jurisdictional or procedural issue.