Medical Lake Cemetery Ass'n v. Spokane County

FILED

DECEMBER 21, 2023

In the Office of the Clerk of Court

WA State Court of Appeals Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

MEDICAL LAKE CEMETERY, )

ASSOCIATION, a Washington non-profit ) No. 38850-6-III

Corporation, )

)

Respondent, )

)

DAVE AND JULIE ) UNPUBLISHED OPINION

TUELLER, husband and wife, WILLIAM )

A. YATES, an individual, JAMES )

JOHNSON, an individual, RENEE )

JOHNSON, an individual, ANNA M. )

OLSON, an individual, CAROL L. )

WHITEHEAD, an individual, ROBERT J. )

WHITEHEAD, an individual, PATRICIA )

A. APREGAN, an individual, DONNA )

WHITEHEAD, an individual, SHARON )

WHITEHEAD, an individual, ANTHONY )

D. WHITEHEAD, an individual, JOHN E )

WHITEHEAD, an individual, ANNA )

JOHNSON, an individual, JOSEPH )

DAVISON, an individual, JOSEPH )

R.YOUNG, an individual, PAMELA S. )

MCCOLLAM, an individual, and TOBY )

WILLIS, an individual, )

)

Petitioners, )

)

v. )

)

SPOKANE COUNTY, a political )

subdivision of the State of Washington; )

)

Respondent, )

No. 38850-6-III,

Medical Lake Cemetery Ass’n v. Spokane County

)

SPOKANE GUN CLUB, a Washington )

non-profit Corporation, )

)

Appellant. )

FEARING, C.J. — In this Land Use Petition Act (LUPA) case, chapter 36.70C

RCW, appellant Spokane Gun Club appeals the Pend Oreille County Superior Court’s

denial of a conditional use permit to operate a shooting range on the ground that the range

would violate the Spokane County Fairchild Air Force Base military airport overlay zone.

The superior court raised this issue on its own. A hearing examiner had approved the

permit, and an earlier superior court had remanded the case to the hearing examiner to

impose conditions on the permit. This appeal requires us to address numerous procedural

questions such as whether the superior court permissibly and on its own raised the issue

of the overlay zone and whether this court should decide the appeal on the basis of the

zone. The appeal also requires us to determine if the shooting range is an inconsistent

use for the rural traditional zone, in which it sits, or constitutes a recreational vehicle park

because of the presence of recreational vehicle parking. Finally, the appeal demands that

we resolve whether a decision by the Lincoln County Superior Court in an earlier LUPA

action prevents us from addressing the prohibition against recreational vehicle parks.

We decline to tackle the applicability of the military airport overlay zone. We

affirm the superior court’s reversal of the issuance of the conditional use permit,

however, on the basis that the gun club’s operations plan includes the presence of a

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recreational vehicle park within the meaning of the county zoning code. The code

prohibits a recreational vehicle park within the gun club’s zone.

FACTS

Appellant Spokane Gun Club purchased a 451-acre parcel outside the city of

Medical Lake with designs to transform the property into a shooting range. The property

sits adjacent to the Medical Lake Cemetery. The Medical Lake Cemetery was

established in the 1870s and was listed in the Washington State Heritage Register in

2018. Respondent Medical Lake Cemetery Association, a nonprofit organization,

operates the cemetery.

Spokane County’s Comprehensive Plan (SCCP) and Spokane County Zoning

Code (SCZC) designates the Spokane Gun Club’s 451-acre parcel as lying within the

county’s “rural traditional” zone. Rural traditional zoning covers farming, ranching,

large lot residences, and rural oriented recreation. SCZC 14.618.100. The Spokane

County zoning code permits a “gun and archery range” in resource lands zones, including

rural traditional zones, only with a conditional use permit. SCZC 14.616.220, Table 616-

1.

Elsewhere, Spokane County Zoning Code defines a “gun and archery range”:

A facility or area used for archery and/or the discharging of firearms

including rifles, pistols, or shotguns, for the purpose of target practice.

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SCZC 14.300.100 (emphasis added). The same code section defines “participant sports

and recreation” for both inside and outside:

Participant Sports and Recreation (indoor only): Participant sports

and recreation use in which the sport or recreation is conducted within an

enclosed structure. Examples include but are not limited to bowling alleys,

roller and ice-skating rinks, dance halls, racquetball courts, physical fitness

centers and gyms, and videogame parlors.

Participant Sports and Recreation (outdoor only): Participant sports

and recreation use in which the sport or recreation is conducted outside of

an enclosed structure. Examples include tennis courts, water slides, and

driving ranges.

SCZC 14.300.100.

Spokane County Comprehensive Plan, Chapter 3, RL-1 defines Rural Land Use,

Rural Character and Rural Land Use Categories, as “a traditional development setting

with low population density.” The same plan section limits uses in the Rural Traditional

Zone to “industries directly related to and dependent on natural resources.”

The Spokane County Zoning Code precludes a recreational vehicle

park/campground from a rural traditional zone. SCZC 14.618.220. The code defines a

“Recreational Vehicle Park/Campground” as

An area where facilities are provided for camping units as defined

herein, utilized by the public for camping[,] for recreation on a temporary

basis and not designed for long term occupancy. The recreational vehicle

park/campground may include recreational services, facilities, and activities

for utilization by the public that are typical and ordinary to the recreational

vehicle park/campground industry.

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SCZC 14.300.100 (emphasis added). The zoning code does not define the word

“facilities” as found twice in the definition of “recreational vehicle park.” A general

provision of the code requires words not defined to be “construed as defined in Webster’s

New Collegiate Dictionary.” SCZC 14.300.000(2).

The Spokane County Zoning Code defines

“camping units” as:

A vehicle designed and intended for temporary occupancy by

persons engaged in camping or use of a camping unit for recreation.

Camping units include but are not limited to recreational vehicles,

recreational park trailers, travel trailers and campers . . . and other similar

shelters.

SCZC 14.300.100 (emphasis added). The Code defines a recreational vehicle:

Recreational Vehicle (RV): A vehicular type portable structure

without permanent foundation primarily designed as temporary living

quarters for recreational, camping, or travel use, with or without motor

power, and occupied in any one place for a period not exceeding 30 days.

This includes, but is not limited to, travel trailers, truck campers, camping

trailers, and self-propelled motor homes.

SCZC 14.300.100.

Spokane County Zoning Code 14.612.240(5) lists numerous requirements to

operate a recreational vehicle park. The list mentions accessory uses permitted in a park.

The accessory uses include:

management headquarters, recreational facilities, restrooms,

dumping stations, shower, laundry facilities, and other uses and structures

customarily incidental to operation of a recreational vehicle park.

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Spokane Gun Club’s proposed shooting range would sit near Fairchild Air Force

Base (Fairchild). As a result, the club’s proposed range lies inside the Spokane County

Zoning Code’s Fairchild Air Force Base Overlay Zone (military airport overlay zone or

overlay zone). SCZC 14.702A.100. The zoning code prohibits incompatible uses to the

overlay zone. One code section prohibits uses catalogued as “high intensity uses” if the

use encourages concentrations of people exceeding 180 persons per net acre.

SCZC 14.702A.430(3). This list includes “spectator sports.” SCZC 14.702A.430(3).

SCZC 14.702A.430(3) further precludes other uses regardless of the number of persons

attracted:

Notwithstanding any other provision in this section, non-aviation

related museums, libraries, race tracks, hotels, motels, resorts, group camps,

non-aviation related colleges and universities, participant sports and

recreation, amusement parks, recreational vehicle parks, entertainment

uses, cultural facilities, public assembly facilities (concert halls, theaters,

stadiums, amphitheaters, arenas, community centers, churches and similar

facilities) are not permitted.

SCZC 14.702A.430(3) (emphasis added).

In 2019, the Spokane Gun Club sought a conditional use permit from the Spokane

County Planning Department to develop the shooting range within the rural traditional

zone. In a July 11, 2019 letter from President John Cushman of the Spokane Gun Club to

neighbors of the proposed gun range, Cushman wrote, in part:

The project scope includes a club house, storage/maintenance

facility, trap/skeet stations and related sitework for access, landscaping,

utilities, parking and site security. Open site areas will be improved to

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provide “dry camping” for RV’s attending Regional and State level

competitions. Additional scope may include a fully contained pistol range,

a sporting clay course, 5-Stand shooting, International Trap and utility

connections for short-term RV use at periodic events. Inclusion of any part

of these additional scope elements will be dependent on the design

response, regulatory approval, and funds available.

Facilities will be sized to accommodate State and Regional

competitive events.

Administrative Record (AR) at 503 (emphasis added).

During a conference with the Spokane County Planning Department, the Spokane

Gun Club disclosed that the public will enjoy access to the gun range. An August 21,

2019 letter from the club to the planning department stated that the new range would

provide sport opportunities not only to club members, but to the public.

In January 2020, the gun club submitted to the county an updated operations plan,

which proposed the following hours of operation:

The site will be open from 10:00 a.m. to dusk on Wednesday,

Saturday and Sunday. Days and hours of operation may be restricted or

expanded depending on expected usage, demand, or multi-day events.

Maximum operating hours (depending on demand) will be 9:00 a.m. to 7

p.m., Wednesday through Sunday.

AR at 315-16. The January 2020 operations plan also announced the club’s plan to host

regional competitions:

The Gun Club could potentially host five regional competitions per

year with participation varying from 50 shooters for day events up to 150

shooters for multi-day events. Two of the hosted events are multi-day

events: (i) a three-day State shoot in June with 120 participants that takes

place from Friday through Sunday; and (ii) the five-day Pacific

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International Trapshooting Association (PITA) shoot in August with 150

shooters that takes place from Wednesday through Sunday. . . .

The Club could potentially host, on average, two competitive shoots

per month during the months of April through October, with the potential to

host additional competitive shoots on available weekends, pending interest.

AR at 316.

The January 20, 2000 operations plan further read, in part:

A. Business Operation. . . .

In addition to shooting venues, the Club will develop a club house

that will contain the following elements: meeting rooms, industrial kitchen

and/or food preparation area for feeding visitors at events, pro shop,

bathrooms, storage facilities, and other amenities as necessary to suit the

needs of the Club. . . .

....

D. Parking. Paved vehicle parking is located near the South border

of the property and is accessible from Thorpe Rd. . . . Reasonable diligence

(see attached Site Plan). . . . The Club also plans to provide approximately

45 parking spaces for self-contained recreational vehicles (without any

hookups or connections to services) for multi-day events. This parking will

facilitate out-of-town participants at the Club’s multi-day events. No

facilities (water, electricity, sewer, restrooms, showers or other facilities)

will be provided for recreational vehicles. All parking and use of

recreational vehicles will be in connection with the use of the Club for

shooting activities and will be limited to the time period of a shooting event

or competition hosted by the Club. The longest shooting event currently

planned by the Club is five or six days, resulting in the maximum

recreational vehicle parking permitted for the property to be six or seven

nights (plus a reasonable period of time before and after events to facilitate

members or invitees who travel significant distances to attend a Club

event).

....

F. Security. The Club will install perimeter fencing around most of

the Club facilities. Gates will control access in and out of the facility after

normal operating hours. The Club will install electronic surveillance and

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security alarms to monitor the facility. Outdoor lighting (dark-sky

complaint) will be installed to provide additional security.

....

H. Sanity Facilities. All bathrooms and plumbing will be located in

the club house. The facility will include a septic tank and drain field, all

built to county code.

AR at 315-17.

The planning department prepared a staff report regarding the proposed gun range.

In the single paragraph analyzing the gun range’s location within the Fairchild Air Force

Base airport overlay zone, the report read:

The subject property is located within the Fairchild Air Force Base

Overlay (FOZ) zone and within Military Influence Area (MIA) 3/4.

Section 14.702A.430. Compatible Uses and Densities prohibits non-

residential uses that encourage substantial concentrations of people

exceeding 180 persons per acre. The proposed use will not exceed this

density limitation. This section goes on to state that participant sports and

recreation and public assembly will not be permitted. The Zoning Code

specifically defines ‘participant sports’ and ‘gun and archery ranges’ as

separate uses and Table 618-1, Rural Zones Matrix, lists a gun and archery

range, and recreational area, commercial as separate uses, as well.

Additionally, the use will not be open to the general public. The

application materials were circulated to Fairchild Air Force Base for review

and comments were received which limit lighting, use of rifles, shooting

direction, and type of ammunition permitted, among other items.

AR at 624.

A representative of Fairchild Air Force Base submitted a letter to the planning

department summarizing the conditions it would require on Spokane Gun Club’s

shooting range. The letter declared that the gun range must incorporate safety features to

ensure a lack of danger to the base or to low flying aircraft. Such features included no

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rifles, a fully baffled pistol range, a shotgun range designed and located so that a shot

could not reach flying aircraft, and a prohibition on shooting at or in the vicinity of an

aircraft flight path. Spokane Gun Club responded with a letter indicating agreement with

the base’s conditions. One opponent to the conditional use permit submitted a letter that

declared a belief that the shooting range would violate the military airport overlay zone.

In its written report and when providing testimony, the planning department

concluded that the Spokane Gun Club’s proposal to include forty-five recreational

vehicle parking spaces did not render the use a “recreational vehicle park/campground”

under the zoning code. The department recommended limiting the use of recreational

vehicles to those dates when the gun range would host multi-day competitions.

This appeal entails a lengthy procedural history. Under the Spokane County

Zoning Code, an application for a conditional use permit requires approval from a

hearing examiner. On February 5, 2020, a Spokane County hearing examiner conducted

a hearing on the Spokane Gun Club’s application. The Medical Lake Cemetery

Association, cemetery burial plot owners, family members of plot owners, and nearby

homeowners opposed the conditional use permit. Opposing testimony also requested that

days of operation be limited.

During the hearing examiner hearing, a representative from the Spokane County

Planning Department testified regarding the site’s location within the Fairchild Air Force

Base Overlay Zone:

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I’d like to note that the subject property is within a military area of

3/4 for the Fairchild Air Force Base and within the Fairchild Air Force

Base Overlay Zone. And so based on that, Section 14.702A.430 which

identifies compatible uses and densities and prohibits non-residential uses

that encourage substantial concentrations of people exceeding 180 persons

per acre, the proposed use will not exceed that density limitation based on

the large acreage size. The section goes on to state that participant sports

and recreation and public assembly will not be permitted.

And the reason I pointed out the definition for a gun and archery

range is that I wanted to point out the fact that the Zoning Code specifically

defines participant sports as one definition and then defines gun and

archery ranges as separate uses. And Table 618-1 of the Rural Zones

Matrix lists the gun and archery range and a recreational commercial area

as separate uses as well.

So, it has been determined by the Department of Building and

Planning that the gun and archery range is separate from a participant sports

and recreation use which is not permitted under an MIA 3/4. Additionally,

the use will not be open to the general public. And as I mentioned, those

application materials were circulated to Fairchild Air Force Base for review

and those comments were received which limits lighting, use of rifle,

shooting direction, type of ammunition among other items.

Clerk’s Papers (CP) at 757-58 (emphasis added).

During the hearing examiner hearing, a representative of the Spokane Gun Club

testified:

. . . I would like to speak to the RV parking and it’s [sic] function

both in the recreational use and the competitive use of this facility.

First, this is primarily a recreational facility. The competitive events

that we bring are interesting and they’re part of our business plan, part of

our business model to make this viable. But, this is about community

shooting, club shooting, and this is how we operate our facility now and

what we intend to do for the future. Hopefully, for a bigger population.

Many of our guests arrive in RV’s. There is, you know, I don’t drive

an RV out there, but the fella that drives from Missoula, they’d travel a

circuit and go to these venues and many of them show up in RV’s, and they

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might visit us for a day or two and move on. If they come out for an event,

they’ll be there for a couple of days.

CP at 782-83. The same witness testified that the club intends for all age groups to visit

the shooting range.

The hearing examiner issued a final decision on July 27, 2020. The decision

granted the conditional use permit for the operation of the Spokane Gun Club shooting

range. In his written decision, the hearing examiner wrote:

. . . negotiations have taken place between the gun club and Fairchild

Airforce Base to arrive at specific conditions upon operation of the gun

range so as to avoid danger or conflicts with the Airforce Base.

CP at 120. The hearing examiner found:

Suggested requirements received from Fairchild Airforce Base

include no rifle use except for shotguns for trap and skeet shooting, any

pistol use will be fully baffled and contained, shooting direction shall be

north, only standard shotgun shells shall be permitted, and any lighting of

the property will be “dark sky” compliant.

CP at 122. The examiner further found:

The conditions of approval provided by the Airforce Base are

acceptable by [Spokane Gun Club] and will be observed.

CP at 123. The hearing examiner did not explicitly rule that the proposed use of the land

conformed to the Fairchild Air Force Base military overlay zone as written in the

Spokane County zoning code. The record does not show that the hearing examiner

analyzed whether the shooting of firearms constituted “participant sports and recreation”

within the meaning of the zoning code’s bar of such activity adjacent to a military base.

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The hearing examiner addressed the Medical Lake Cemetery Association’s

contention that the Spokane Gun Club’s plans violated the zoning code because the plans

included a recreational vehicle park. The examiner declined to classify the proposed use

as a recreational vehicle park because the gun club does not intend to provide utilities for

the vehicles. The hearing examiner emphasized the zoning code’s definition of a

recreational vehicle park as “[a]n area where facilities are provided” for camping units or

recreational vehicles. SCZC 14.300.100 (emphasis added). The Zoning Code does not

define the term “facilities.” Thus, the hearing examiner concluded:

In the absence of evidence from any party regarding the definition of

the term “facilities” as used in the definition of Recreational Vehicle

Park/Campground, the Hearing Examiner takes notice that that the term

when used in reference to RVs and RV parks, is typically used to refer to

the ability to “hook up” the RV to a water source, to a source of electricity,

and/or a place for the disposal of greywater (sewer products) from the RV

at the site or in the RV park complex.

Under that definition of “facilities” the parking spaces sized to

accommodate RVs proposed at the proposed gun range do not rise to a

Recreational Vehicle Park/Campground. The availability of prepared food

within the clubhouse or restrooms on the site do not fall within the typical

usage of the term “facilities” as is taken notice of.

CP at 135. The hearing examiner permitted recreational vehicles at the site during

shooting competitions but required a quiet time between 9:00 p.m. and 7:00 a.m.

The Medical Lake Cemetery Association and eighteen owners of burial plots

inside the cemetery (collectively the cemetery association) filed a LUPA action in

Lincoln County Superior Court requesting reversal of the hearing examiner and denial of

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the conditional use permit. The cemetery association argued that the gun range created a

nuisance, constituted a taking of property, and violated their plot owners’ right to

exercise religion. The association alleged that the hearing examiner committed legal

error when ruling that the proposed use constituted a “gun range” with the meaning of the

Spokane County Zoning Code and entailed “target practice” under the code, while

denying that the proposed uses involved competitive competitions at a commercial sport-

shooting complex in conflict with a rural traditional zone. The cemetery association also

alleged that the hearing examiner committed legal error when failing to recognize that

overnight recreational vehicle parking turned the use into a recreational vehicle park in

violation of the zoning code. Some of the plot owners contended they lacked notice of

the application for the conditional use permit such that Spokane County and the gun club

violated due process. The cemetery association asserted that the hearing examiner acted

with bias and with undue influence from one of the Spokane County commissioners. The

cemetery did not contend, in the Lincoln County Superior Court LUPA action, that the

proposed use violated the Fairchild Air Force Base Overlay Zone.

The Lincoln County Superior Court denied the cemetery association’s request for

rejection of the conditional use permit. Nevertheless, in a February 2021 memorandum

decision, the court remanded to the hearing examiner to impose additional noise

mitigation on the gun range and wrote:

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This court finds that based upon the evidence provided to date, the

Hearing Examiner’s decision to grant the SGC’s [Spokane Gun Club’s]

CUP [conditional use permit] and allow it the right to shoot five days per

week up to ten hours per day for seven months per year without any

mitigating conditions other than moving the proposed site 300 feet east was

not supported by substantial evidence and is not compatible with the

petitioners’ uses of their respective properties. Also, the SGC’s previous

use in a residential area of Spokane Valley was generally up to three days

per week, usually on Wednesdays and Saturdays and at times Sundays and

other times during a multi-day event. In spite of the claimed reduction in

total participation during a competitive shoot, the proposed allowance far

exceeds what [it] had previously been allowed on a weekly basis.

Therefore, this court is remanding this back to the Hearing Examiner

to address this court’s concerns and the efficacy of the possible mitigating

conditions listed above and whether such conditions or others should be

imposed.

CP at 280. The Lincoln County court concluded that occasional dry camping does not

fall within the definition of a “Recreational Vehicle Park/Campground” under SCZC

14.300.100.

The Lincoln County Superior Court did not resolve whether or not the proposed

shooting range conflicted with the Spokane County Zoning Code’s prohibitions inside a

military airport overlay zone. No one appealed the Lincoln County Superior Court’s

ruling to this Court of Appeals.

The Spokane County hearing examiner, on April 22, 2021, issued “supplemental

findings of fact, conclusions of law and decision on remand.” CP at 315-43. In response

to the superior court’s remand order, the examiner imposed additional conditions on the

approval of the conditional use permit:

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6. The days and hours of operation of the gun range for shooting

shall be limited to Wednesday, Friday, Saturday, and Sunday between

10:00 a.m. and dusk or 7:00 p.m. whichever is earlier. . . .

....

10. Up to five (5) multi day regional shooting tournaments hosted

by the SGC will be allowed at the gun range. Those tournaments shall

occur no more than one tournament during each of the following months:

April, May, June, August, and September.

CP at 333-35. These conditions prohibit the Spokane Gun Club from operating on

Thursdays and from hosting a regional shooting tournament during the month of July.

The hearing examiner also required that the gun club erect an acoustic berm, that the

range be closed on certain holidays, that the gun range cease firing during funerals or

memorial services, and that shooting cease for thirty minutes during visits by individuals

or groups at the cemetery. As before, the hearing examiner never deliberately addressed

whether a shooting range constituted a participant sport and was prohibited within the

military airport overlay zone within the meaning of the Spokane County Zoning Code.

PROCEDURE

This appeal arises from a second land use petition case, filed this time in Pend

Oreille County Superior Court by the Medical Lake Cemetery Association, challenging

the hearing examiner’s remand decision. This second petition repeated similar

allegations as asserted in the Lincoln County Superior Court petition and utilized much of

the same language. The Pend Oreille County petition added that the hearing examiner

engaged in improper communications with Spokane County employees and thereby

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violated Washington’s Open Public Meetings Act, chapter 42.30 RCW. The second

petition also contended that the hearing examiner failed to enter sufficient mitigation

requirements.

In the Pend Oreille County Superior Court LUPA petition, the cemetery

association repeated its allegation that the Spokane Gun Club’s proposed use went

beyond the definition of a gun range and instead entailed competitions in violation of the

Spokane County Zoning Code. The association also repeated its allegation that the

proposed use constituted a recreational vehicle campground in violation of the zoning

code. In its petition, the cemetery association never expressly suggested that the

proposed use violated the Fairchild Air Force Base Overlay Zone.

During the Pend Oreille County Superior Court proceeding, the superior court

never asked the parties to brief or address the question of whether the Spokane Gun Club

shooting range violated the Spokane County Zoning Code prohibitions attended to the

military airport overlay zone. In a forty-two-page memorandum decision, the court

reversed the grant of the conditional use permit. The superior court concluded that the

gun range was not a permitted use in the military airport overlay zone.

The Spokane Gun Club appealed the Pend Oreille County Superior Court’s

decision to this court. The Medical Lake Cemetery Association did not cross appeal.

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LAW AND ANALYSIS

Before this court, the parties assert a number of contentions and cross-contentions

regarding the opposing party’s failure to assert arguments at various stages of the

litigation, including this stage before this appellate court. These arguments of waiver

require a score card to follow and to distinguish them from related arguments. We must

address most of these contentions before addressing the merits of the dispute.

Before this court, the Spokane Gun Club assigns three errors to the hearing

examiner’s decision on remand from the Lincoln County Superior Court. First, the

hearing examiner should have provided notice and an opportunity to be heard before

prohibiting tournaments in July and before proscribing shooting range operations.

Second, the hearing examiner substantively erred when it restricted the gun club from

shooting tournaments during the month of July. Third, the hearing examiner mistakenly

precluded shooting range operations on Thursdays.

In its opening brief to this court, the Spokane Gun Club does not assign error to

the Pend Oreille County Superior Court’s ruling. Nevertheless, the club contends that the

Pend Oreille County court lacked authority to invalidate the conditional use permit

because the Medical Lake Cemetery Association never appealed the Lincoln County

Superior Court’s ruling that affirmed, with modifications, the issuance of the use permit.

In turn, according to the gun club, the Pend Oreille County Superior Court should have

limited its review to the issues attended to the cemetery association’s LUPA action.

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Those issues included whether the hearing examiner committed error when, on remand

from the Lincoln County Superior Court, the examiner imposed the limitations in July

and on Thursday. In its opening brief, the gun club also asserts that the Lincoln County

Superior Court’s affirmation of the conditional use permit became the law of the case.

In its responsive brief, the Medical Lake Cemetery Association assigns no errors

to the hearing examiner’s decision. The cemetery association only vaguely seeks to

affirm the Pend Oreille County Superior Court’s ruling voiding the conditional use permit

based on the military airport overlay zone. Instead, the cemetery association

substantively argues that a gun range is incompatible with the Spokane County

Comprehensive Plan and Spokane County Zoning Code’s descriptions of rural traditional

zones and a historic and cultural resource center. The association also argues that the

planned development includes an impermissible recreational vehicle park. Finally, the

cemetery association argues that the grant of the conditional use permit constitutes a

regulatory taking under the United States Constitution’s Fifth Amendment.

Procedurally, the cemetery association contends that the Spokane Gun Club and

Spokane County failed to give proper notice to all individuals, holding property rights in

the cemetery, of the gun club’s request for a conditional use permit. The cemetery

association also asserts that Spokane County colluded with the Spokane Gun Club to

effectuate the hearing examiner’s unlawful approval of the conditional use permit

because of the county’s obsession with increasing economic activity.

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The Spokane Gun Club seeks to bar the Medical Lake Cemetery Association from

advocating for invalidation of the conditional use permit on the ground that the cemetery

association never cross appealed the Pend Oreille County Superior Court’s decision. As

a result, we asked both parties to address the ramifications of the cemetery association’s

failure to cross appeal and whether that failure requires us to affirm the issuance of the

conditional use permit.

In its opening brief, the Spokane Gun Club ignores the ruling of the Pend Oreille

County Superior Court, which ruling invalidated the conditional use permit in its entirety.

The gun club correctly notes that, with the appeal to this court, we review the hearing

examiner’s decision, not the superior court’s ruling. Under LUPA, we review the

decision of the local jurisdiction’s body or officer with the highest level of authority to

make the determination, including those with authority to hear appeals. Lakeside

Industries v. Thurston County, 119 Wn. App. 886, 894, 83 P.3d 433 (2004). We stand in

the same position as the superior court. Fischer Studio Building Condominium Owners

Association v. City of Seattle, 25 Wn. App. 2d 593, 599, 524 P.3d 708 (2023). Therefore,

the gun club assigns no error to the superior court’s decision. In turn, the cemetery

association seeks to preclude the gun club from seeking to overturn the Pend Oreille

County Superior Court’s ruling because of the club’s failure to assign error to the

superior court’s decision.

20

No. 38850-6-III,

Medical Lake Cemetery Ass’n v. Spokane County

Because of the rule that we review the hearing examiner’s decision, because of

Spokane Gun Club’s avoidance of the Pend Oreille County Superior Court’s ruling, and

because of the Medical Lake Cemetery Association’s failure to sufficiently discuss the

military airport overlay zone in its opening brief, we directed the parties to brief some

more questions. First, did the superior court possess authority to base its decision on the

military overlay zone when the Medical Lake Cemetery Association never asserted this

provision of the Spokane County Zoning Code? Second, did the superior court properly

base its decision on the overlay zone when it gave the parties no notice that it might base

its decision on this ground? Third, assuming the superior court lacked the authority to

base its decision on the overlay zone, may this Court of Appeals address the applicability

of the overlay zone after giving the parties an opportunity to brief the merits of the zone’s

application? Fourth, does the siting of the gun club conflict with the language of the

military installation overlay section of the zoning code?

On August 31, 2023, the Washington Supreme Court issued a decision in Dalton

M, LLC v. North Cascade Trust Services, Inc., 2 Wn.3d 36, 534 P.3d 339 (2023). The

decision addresses the circumstances under which an appellate court may raise issues on

its own pursuant to RAP 12.1(b). We once again asked the parties to answer a question.

We posed the question of whether the Supreme Court’s decision Dalton M, LLC v. North

Cascade Trust Services precluded this court from resolving the case on the applicability

of the Fairchild Air Force Base military airport overlay zone.

21

No. 38850-6-III,

Medical Lake Cemetery Ass’n v. Spokane County

We enter a labyrinth of procedural questions. We rule that the cemetery

association may seek to affirm the superior court’s invalidation of the conditional use

permit despite having failed to cross appeal. We hold that the Lincoln County Superior

Court’s ruling did not become the law of the case and the Medical Lake Cemetery

Association could continue to challenge the validity of the conditional use permit during

the land use petition proceeding before the Pend Oreille County Superior Court. We

further hold that the Pend Oreille County Superior Court should not have denied the

conditional use permit on a ground not asserted by the cemetery association without first

giving the parties an opportunity to address the applicability. We, in turn, decline to

address the gun range’s incompatibility with the military airport overlay zone. Finally,

we hold that the gun club’s proposed recreational vehicle parking area constitutes a

recreational vehicle park in violation of the Spokane County Zoning Code.

Issue 1: May the Medical Lake Cemetery Association gain affirmative relief from

this court in the form of invalidation of the conditional use permit when the cemetery

association never cross appealed from the Pend Oreille County Superior Court?

Answer 1: We do not answer this question because we do not characterize the

cemetery association’s request as affirmative relief.

In this court, the Medical Lake Cemetery Association seeks to invalidate the

Spokane Gun Club’s conditional use permit on numerous grounds. In response, the gun

club contends the cemetery association may not seek this disposition because the

22

No. 38850-6-III,

Medical Lake Cemetery Ass’n v. Spokane County

association did not cross appeal the Pend Oreille County Superior Court’s decision. The

gun club asserts that this court must limit its review to the club’s appeal that challenges

the conditions of the conditional use permit. In so responding, the gun club characterizes

the cemetery association’s position as seeking affirmative relief.

RAP 2.4(a) reads in part:

The appellate court will grant a respondent affirmative relief by

modifying the decision which is the subject matter of the review only (1) if

the respondent also seeks review of the decision by the timely filing of a

notice of appeal or a notice of discretionary review, or (2) if demanded by

the necessities of the case.

(Emphasis added.) The Spokane Gun Club emphasizes that the hearing examiner’s

decision, not the Pend Oreille County Superior Court’s decision, is the decision on

review.

None of the decisions applying RAP 2.4(a) entail the Court of Appeals

considering a superior court’s ruling that reviewed an administrative agency or hearing

officer. Since this court, under established precedent, reviews the Spokane County

hearing examiner’s decision, we face the quandary of whether we should permit the

Medical Lake Cemetery Association to argue against the validity of the conditional use

permit when it never appealed the superior court decision.

We observe that a party appeals from a final judgment. RAP 2.2(a)(1). A final

judgment is a court’s last action settling the rights of the parties and disposing of the

issues in controversy. State v. Taylor, 150 Wn.2d 599, 602, 80 P.3d 605 (2003). The

23

No. 38850-6-III,

Medical Lake Cemetery Ass’n v. Spokane County

final judgment in this case was the decision of the Pend Oreille County Superior Court.

The cemetery association had no incentive to appeal from the superior court’s decision,

which decision granted the relief it sought. The cemetery association therefore does not

seek affirmative relief, because it does not seek a change from the final trial decision. A

party seeks affirmative relief when it wishes for the Court of Appeals to change the final

result at trial. State v. Sims, 171 Wn.2d 436, 442, 256 P.3d 285 (2011).

Despite our review of the hearing examiner’s decision, the proceeding came to us

from the Pend Oreille County Superior Court. The Spokane Gun Club appealed, to this

court, the superior court’s judgment in favor of the cemetery association, not the hearing

examiner’s ruling. A cross appeal generally seeks review of a ruling, from which the

appellant does not seek relief, entered by the superior court. Although it also seeks relief

from some of the conditions of the hearing examiner’s ruling, the gun club effectively

seeks relief from the superior court’s ruling. The cemetery association only seeks to

affirm that same ruling of the superior court. A party filing a cross appeal to a decision

wholly in its favor makes no sense. Our adopting of the gun club’s position would be

tantamount to pretending that the superior court never issued a decision.

Issue 2: Does the Medical Lake Cemetery Association’s failure to appeal the

Lincoln County Superior Court’s February 2021 ruling preclude the cemetery

association from seeking the invalidity of the conditional use permit approved by the

hearing examiner?

24

No. 38850-6-III,

Medical Lake Cemetery Ass’n v. Spokane County

Answer 2: No.

The Medical Lake Cemetery Association challenged the hearing examiner’s

issuance of the Spokane Gun Club’s conditional use permit in the cemetery association’s

first land use act petition case before the Lincoln County Superior Court. The superior

court affirmed the issuance of the permit, but remanded for the hearing examiner to

impose conditions that would reduce noise and restrict interferences with families visiting

the cemetery. When affirming the issuance of the permit, the superior court ruled, among

other rulings, that the gun club’s proposed parking area for recreational vehicles did not

constitute an illegal recreational vehicle park under the Spokane County Zoning Code.

In this appeal to the Court of Appeals, the gun club contends that the decision

affirming the issuance of the conditional use permit became final because the cemetery

association did not appeal the Lincoln County Superior Court’s approval of the permit.

The gun club asks this court to reverse the Pend Oreille County Superior Court on the

basis that the law of the case doctrine precluded further challenge to the permit as

opposed to conditions imposed on the permit. Under the gun club’s view of the law of

the case, this court should not entertain any argument by the cemetery association that the

club’s proposed use violates zoning restrictions in a military airport overlay zone or

restrictions against a recreational vehicle park. The dissent adopts the Spokane Gun

Club’s view. Under the gun club’s logic, this court’s review is narrowly limited to the

25

No. 38850-6-III,

Medical Lake Cemetery Ass’n v. Spokane County

specific decisions made by the hearing examiner on remand. The gun club’s argument

suffers flaws.

The Spokane Gun Club’s contention assumes that the cemetery association held

the right to appeal the Lincoln County Superior Court ruling. We question this

assumption. Because the Lincoln County court remanded for further proceedings before

the Spokane County hearing examiner, the association may have lacked a right to appeal.

RAP 2.2 declares:

(a) Generally. Unless otherwise prohibited by statute or court rule

and except as provided in sections (b) and (c), a party may appeal from only

the following superior court decisions:

(1) Final Judgment. The final judgment entered in any action or

proceeding, regardless of whether the judgment reserves for future

determination an award of attorney fees or costs.

(Second emphasis added.)

The dissenting opinion also contends that the Lincoln County Superior Court’s

ruling constituted a final judgment such that the cemetery association could have then

appealed to this court. Nevertheless, a final judgment, for purposes of RAP 2.2(a)(1), is a

judgment that ends the litigation, leaving nothing for the court to do but execute the

judgment. In re Detention of Petersen, 138 Wn.2d 70, 88, 980 P.2d 1204 (1999). Stated

differently, a “final judgment” settles all the issues in a case. In re Detention of Turay,

139 Wn.2d 379, 392, 986 P.2d 790 (1999). The Lincoln County court did not end the

litigation between the cemetery association and the Spokane Gun Club. The court

26

No. 38850-6-III,

Medical Lake Cemetery Ass’n v. Spokane County

remanded the case for further consideration of pending issues. A century ago, a Florida

court ruled that a reviewing court’s reversal of a judgment and remand of the cause for

further proceedings in the lower court did not constitute a final judgment. First National

Bank v. Gibbs, 78 Fla. 118, 82 So. 618, 620 (1919).

In Fox v. Sunmaster Products, Inc., 115 Wn.2d 498, 798 P.2d 808 (1990), the

Washington Supreme Court ruled that a petition for discretionary review by the plaintiff

was timely as to one of two defendants granted summary judgment dismissal of

plaintiff’s claim. The summary judgment order had been entered more than thirty days

before the filing of the petition. The superior court had even signed a certification for

immediate appeal of the summary judgment order. Under CR 54(b) and RAP 5.2(a), the

plaintiff could wait until final judgment was entered with respect to claims against the

other defendant and then appeal as to both defendants.

The dissenting opinion suggests that, when reviewing finality for purposes of an

appeal, the law identifies discrete issues entertained by the superior court, not whether the

superior court resolved the entire case. The dissent cites no authority for this proposition.

Under the dissenter’s view, if the superior court dismisses a plaintiff’s cause of action for

negligent infliction of emotional distress on summary judgment, but denies the

defendant’s motion for summary judgment on an intentional infliction of emotional

distress, the plaintiff must immediately appeal the dismissal of the former cause of action

and cannot appeal the dismissal after the superior court later resolves all causes of action.

27

No. 38850-6-III,

Medical Lake Cemetery Ass’n v. Spokane County

Nevertheless, under RAP 2.2(d), a party may not appeal until all claims and counts are

final unless the superior court enters an order declaring there is no just reason for delay.

In Shaw v. Clallam County, 176 Wn. App. 925, 309 P.3d 1216 (2013), this court

ruled the superior court’s remand of a LUPA petition to the county administrator of

community development did not constitute a final order for purposes of an appeal. In

Prosser Hill Coalition v. County of Spokane, 176 Wn. App. 280, 286, 309 P.3d 1202

(2013), this court reviewed a superior court’s remand in a LUPA case to a hearing

examiner before the hearing examiner reviewed the case again. Nevertheless, the court

did not address the appealability of the order of remand. Neither party argued that the

superior court decision was not final.

The dissent underscores that the Lincoln County Superior Court did not remand

the entire dispute to the hearing examiner. The Lincoln County Superior Court only

directed the hearing examiner to address mitigating measures. We do not dispute this

portrayal of the superior court’s decision, but such characterization holds no bearing on

whether the superior court’s decision could be appealed to this court.

Next the dissent highlights that the Lincoln County Superior Court lost jurisdiction

of the case when remanding the matter to the Spokane County hearing examiner. The

dissent impliedly concludes that loss of jurisdiction by the superior court necessarily

means that the superior court decision became final for purposes of an appeal as a matter

of right. The dissent cites no authority for this conclusion.

28

No. 38850-6-III,

Medical Lake Cemetery Ass’n v. Spokane County

Along these lines, the dissent suggests that, if the Lincoln County Superior Court’s

decision lacked finality, the Medical Lake Cemetery Association needed to return its

LUPA petition to the Lincoln County Superior Court, not the Pend Oreille County

Superior Court, after the hearing examiner entered its decision on remand. The dissent

cites no authority for this conclusion, although we might agree with the dissent’s logic.

But the Spokane Gun Club has not argued that the cemetery association needed to return

to the Lincoln County court.

Because the Lincoln County Superior Court’s February 2021 decision was not a

final decision, the cemetery association could have sought only discretionary review by

this court under RAP 2.3. The association had no right to appeal to this court. Appellate

courts disfavor piecemeal appeals. Doerflinger v. New York Life Insurance Co., 88

Wn.2d 878, 882, 567 P.2d 230 (1977). Regardless of the finality of the Lincoln County

Superior Court ruling before completion of remand, the cemetery association would

suffer unfairness if it is precluded from advancing arguments implicating the Lincoln

County ruling.

Fortunately, the RAPs contemplate the instant circumstances. This court may

review the Lincoln County decision under RAP 2.4(b) because the Lincoln County ruling

prejudicially affected the hearing examiner’s decisions on remand from that ruling.

Order or Ruling Not Designated in Notice. The appellate court

will review a trial court order or ruling not designated in the notice,

including an appealable order, if (1) the order or ruling prejudicially affects

29

No. 38850-6-III,

Medical Lake Cemetery Ass’n v. Spokane County

the decision designated in the notice, and (2) the order is entered, or the

ruling is made, before the appellate court accepts review.

The Spokane Gun Club’s emphasis on the cemetery association’s failure to appeal

the Lincoln County Superior Court’s ruling implicates the law of the case doctrine.

Nevertheless, the gun club, as does the dissenting author, misconstrues the “law of the

case” doctrine’s applicability to the Court of Appeals.

The law of the case doctrine ordinarily precludes reconsideration of an identical

legal issue when an appellate court has already determined the issue in an earlier appeal

from the same case. Folsom v. County of Spokane, 111 Wn.2d 256, 263-64, 759 P.2d

1196 (1988). We might agree with the dissenting opinion’s insistence that the Pend

Oreille County Superior Court was bound, under the law of the case doctrine, to uphold

rulings previously issued by the Lincoln County Superior Court in that both superior

courts sat as appellate judges. A superior court hearing a LUPA petition acts in an

appellate capacity with the jurisdiction conferred by law. Conom v. Snohomish County,

155 Wn.2d 154, 157, 118 P.3d 344 (2005); Prosser Hill Coalition v. County of Spokane,

176 Wn. App. 280, 286 (2013). But the the law of the case doctrine generally applies

only to the assertion of identical issues on successive appeals of the same case. Greene v.

Rothschild, 68 Wn.2d 1, 10, 414 P.2d 1013 (1965); Pierce County v. Desart, 9 Wn. App.

760, 761, n.1, 515 P.2d 550 (1973).

30

No. 38850-6-III,

Medical Lake Cemetery Ass’n v. Spokane County

Even if the Pend Oreille County Superior Court should have refrained from

entertaining the question of the compatibility with the military airport overlay zone or the

issue of whether the gun club’s proposed use contemplated a recreational vehicle park,

the law of the case doctrine does not constrain this court when this court has never issued

a prior decision in the instant case. This court is not bound by trial court decisions, even

those made by superior courts in their appellate capacities under LUPA. This court owes

no deference to a superior court in a LUPA case. Fischer Studio Building v. City of

Seattle, 25 Wn. App. 2d 593, 599 (2023). The law of the case principle applies the rule

that an appellate court will ordinarily not reconsider its own rulings of law on a

subsequent appeal. Lodis v. Corbis Holdings, Inc., 192 Wn. App. 30, 56, 366 P.3d 1246

(2015). The rule does not preclude a higher court from considering rulings of a lower

court.

Finally, the law of the case doctrine is discretionary under RAP 2.5(c)(2), which

permits an appellate court to redecide an earlier decision “on the basis of the appellate

court’s opinion of the law at the time of the later review.” State v. Schwab, 163 Wn.2d

664, 672, 185 P.3d 1151 (2008). We have exercised this discretion before when

declining to harness the doctrine. Cronin v. Central Valley School District, 12 Wn. App.

2d 99, 111, 456 P.3d 843 (2020).

31

No. 38850-6-III,

Medical Lake Cemetery Ass’n v. Spokane County

Issue 3: Does the Spokane Gun Club’s failure to assign error to the Pend Oreille

County Superior Court’s ruling abrogating the conditional use permit preclude the gun

club from arguing against this court adopting the Pend Oreille County court’s decision?

Issue 3: No.

The Medical Lake Cemetery Association grips the sword and argues that the

Spokane Gun Club should be precluded from advancing arguments contrary to the Pend

Oreille County Superior Court’s final decision denying the conditional use permit

because the gun club assigns no errors, in its brief, to the superior court decision. As we

reject the gun club’s technical argument about the raising of errors and issues on review

and cross appeal by the cemetery association, we also reject this technical argument of

the cemetery association. As noted by the gun club, we review the decision of the local

jurisdiction’s body or officer with the highest level of authority to make the

determination, including those with authority to hear appeals. Lakeside Industries v.

Thurston County, 119 Wn. App. 886, 894 (2004). The cemetery association still bears

the burden to establish error under LUPA on appeal even though it prevailed before the

Pend Oreille Superior Court. Quality Rock Products, Inc. v. Thurston County, 139 Wn.

App. 125, 134, 159 P.3d 1 (2007). The gun club could reasonably conclude that it did not

need to challenge the superior court’s ruling at least in its opening brief.

We deem our rulings allowing both parties to forward arguments on the merits to

fulfill the purposes behind the appellate procedure rules. We should liberally interpret

32

No. 38850-6-III,

Medical Lake Cemetery Ass’n v. Spokane County

the rules to reach decisions on their merits. RAP 1.2(a). We may waive rules in the

interests of justice. RAP 1.2(c).

Issue 4: Did the Medical Lake Cemetery Association raise the question of the

violation of the military airport overlay zone before the Pend Oreille County Superior

Court?

Answer 4: No.

We inch closer to a resolving the merits of this dispute. The Spokane Gun Club

asks this court to refuse to address whether the club’s operation would violate the

Spokane County Zoning Code provision that prevents recreational activities from within

the Fairchild Air Force Base military overlay zone on the basis that the Medical Lake

Cemetery Association never argued this position before the superior court. The gun

club’s request assumes that the cemetery association never forwarded such an argument

before the superior court. The cemetery association contends to the contrary.

The Medical Lake Cemetery Association’s LUPA petition, before the Pend Oreille

County Superior Court, assigned sixty-four errors purportedly committed by the hearing

examiner. None of the assignments discussed the military airport overlay zone.

Assignment 7.5 faulted the hearing examiner for “failing to fully and properly consider

and apply the Spokane County Zoning Code.” CP at 14. But an appellate court does not

review vague and overbroad arguments. In re Disciplinary Proceeding Against Jensen,

33

No. 38850-6-III,

Medical Lake Cemetery Ass’n v. Spokane County

192 Wn.2d 427, 440, 430 P.3d 262 (2018). We do not expect a superior court to do so

either.

The cemetery association also maintains that LUPA requires the superior court to

uncover every possible issue arising in a land use decision when that decision comes

under the court’s review. RCW 36.70C.130(1), a provision in LUPA, reads that the

superior court “shall review the record” of a land use decision. We read the statute to

instruct the court to review the factual record in light of the arguments raised by the

parties, not to comb the record in order to construct legal arguments for a party.

Issue 5: Whether the Pend Oreille County Superior Court properly based a

decision on the military airport overlay zone precluding the gun club when the cemetery

association never argued that the zone precluded the use and when the superior court

gave no notice in advance to the gun club that the court may resolve the land use petition

action on this basis?

Answer 5: No.

This question we pose does not seek an answer to the merits of whether the

Spokane County Zoning Code precludes the operation of a gun club within the Fairchild

Air Force Base military airport overlay zone. Instead, we ask whether the Pend Oreille

County Superior Court properly raised the question on its own. The Spokane Gun Club

contends the superior court violated procedural rules by doing so, while the Medical Lake

34

No. 38850-6-III,

Medical Lake Cemetery Ass’n v. Spokane County

Cemetery Association disagrees. Spokane County argues that, even if the superior court

properly raised the issue, this court should decline to address it.

The superior court civil rules lack a rule analogous to RAP 12.1 that permits the

Court of Appeals to consider unbriefed arguments after affording the parties an

opportunity to present written argument. RAP 12.1(b). We note, however, that at least

two other state courts have held that trial courts erred when grounding a decision on an

argument not raised by a party when the losing party lacked the opportunity to respond to

the court’s reasoning. Maddicks v. Big City Properties, LLC, 163 A.D.3d 501, 84

N.Y.S.3d 4, 5 (2018), aff’d, 34 N.Y.3d 116, 137 N.E.3d 456, 114 N.Y.S.3d 1 (2019);

Borough of Latrobe v. Pohland, 702 A.2d 1089, 1094 (Pa. Commw. Ct. 1997). As a

matter of due process, a superior court should not base a decision on a theory not argued

by the parties without first giving the parties an opportunity to brief the theory’s

application to the case.

A party should have an opportunity to rebut arguments harming its interests.

Johnson v. Austal, U.S.A., LLC, 805 F. Supp. 2d 1299, 1310 (S.D. Ala. 2011). This

principle extends to issues raised by the trial court at the conclusion of a hearing.

Lykkebak v. Lykkebak, 323 So.3d 328, 330 n.1 (Fla. Dist. Ct. App. 2021).

Issue 6: Whether this court may base a ruling on the purported incompatibility of

the shooting range with the Fairchild Air Force Base Overlay Zone, the ground on which

the Pend Oreille County Superior Court relied, when the superior court gave no notice to

35

No. 38850-6-III,

Medical Lake Cemetery Ass’n v. Spokane County

the gun club that it might ground its opinion on such basis and the Medical Lake

Cemetery Association only vaguely asserts the overlay zone in its respondent’s brief to

this court?

Answer 6: No.

The assumption that the superior court should not have decided the case on the

application of the military airport overlay zone does not necessarily mean this court

cannot resolve the dispute on any incompatibility between the operation of the gun range

and the zoning code. At the same time, despite the trial court ruling on this

incompatibility, the parties, in their opening briefs, did not analyze the question of

whether the overlay zone precluded the gun club because of the club’s proximity to the

zone. Nevertheless, because we can resolve this appeal on other grounds favorable to the

cemetery association, we need not and decline to rest our decision on the overlay zone.

Pursuant to RAP 12.1(b), we directed the parties to supply supplemental briefing

on the question of whether we should substantively address the applicability of the

Fairchild Air Force Base Overlay Zone. In the end we decline to address this question

based on the Supreme Court decision in Dalton M, LLC v. North Cascade Trust Services,

Inc., 2 Wn.3d 36 (2023). Because we rule in favor of the Medical Lake Cemetery

Association on other grounds, we decline to analyze Dalton M’s application to our

addressing the overlay zone. We apologize to the parties for creating this additional

36

No. 38850-6-III,

Medical Lake Cemetery Ass’n v. Spokane County

work. We asked for the additional briefing because of the importance of Fairchild Air

Force Base.

Issue 7: Whether the proposed use of the property by the Spokane Gun Club

violates the Spokane County Zoning Code military airport overlay zone?

Answer 7: We decline to address this question.

Issue 8: Whether the proposed use of the property by the Spokane Gun Club

includes a recreational vehicle park prohibited under the Spokane County Zoning Code?

Answer 8: Yes.

The Medical Lake Cemetery Association urges that the Spokane Gun Club’s

planned development includes an impermissible RV Park. We agree.

The Spokane County Zoning Code precludes a recreational vehicle park from a

rural traditional zone. SCZC 14.618.220. Because of its criticality, we repeat the code

section defining a recreational vehicle park:

Recreational Vehicle Park/Campground: An area where facilities are

provided for camping units as defined herein, utilized by the public for

camping for recreation on a temporary basis and not designed for long term

occupancy. The recreational vehicle park/campground may include

recreational services, facilities, and activities for utilization by the public

that are typical and ordinary to the recreational vehicle park/campground

industry.

SCZC 14.300.100 (emphasis added). Note that the definition refers to “facilities” twice.

The Spokane Gun Club operation plans include forty-five parking stalls to

accommodate recreational vehicles during shooting events or competitions. The club

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No. 38850-6-III,

Medical Lake Cemetery Ass’n v. Spokane County

does not intend to provide hookup services for water, electricity, and sewer. We note,

however, that, according to gun club written plans, letters, and testimony, recreational

vehicle owners parking at the property will enjoy security fencing, gates, alarms, and

lighting. The owners will also enjoy, at least during business hours, a clubhouse that

includes water, restrooms, and food service. Just as important, the recreational vehicle

parkers will enjoy recreational facilities, such as the shooting and archery ranges.

The zoning code does not define the term “facilities.” Instead SCZC

14.300.000(2) demands that this court construe undefined terms “as defined in Webster’s

New Collegiate Dictionary.” Neither party provides a dictionary definition for this court.

We assume Webster’s New World College Dictionary equates to Webster’s New

Collegiate Dictionary. We can find no New Collegiate Dictionary. Webster’s New

World College Dictionary lists four definitions for “facilities:”

1. Plural form of facility

2. Something that facilitates, or makes possible an action or process

3. Something created to fulfill a particular function

4. A restroom or toilet

The hearing examiner, the Spokane Gun Club, Spokane County, and the dissent

conclude that “facilities,” within the meaning of a “recreational vehicle park,” means the

capability of recreational vehicles to hookup to a broad range of utilities, such as sewer,

water, and electricity. In turn, the dissent erroneously equates “utilities” with “facilities.”

38

No. 38850-6-III,

Medical Lake Cemetery Ass’n v. Spokane County

In the circumstances of ambiguity, this court often defers to the municipality’s

interpretation of its municipal code. Durland v. San Juan County, 174 Wn. App. 1, 25,

298 P.3d 757 (2012). Nevertheless, the record does not show that Spokane County based

its interpretation of “facilities” on its own code’s requirement that one must employ the

dictionary definition. We decline to defer to the county’s interpretation, when the county

does not read the entirety of its code.

RCW 36.70C.130(1) authorizes this court to grant relief when:

(b) The land use decision is an erroneous interpretation of the law,

after allowing for such deference as is due the construction of a law by a

local jurisdiction with expertise.

Just as Spokane County erroneously interprets SCZC 14.300.100, the hearing examiner

did so by failing to read SCZC 14.300.000. The dissent compounds this error by

constructing appurtenances to the definition of “facilities,” such as those facilities

typically available for “camping units,” rather than reading the required dictionary

definition.

The Spokane County Zoning Code binds us and directs us to Webster’s New

World College Dictionary, not some common understanding as to “facilities” within the

context of a setting such as a recreational vehicle park. “Facilities” means something that

facilitates or makes an occurrence happen. The parking area planned for the recreational

vehicles by the Spokane Gun Club together with the security apparatus and amenities

available at the clubhouse facilitates the use of recreational vehicles. The definition of

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No. 38850-6-III,

Medical Lake Cemetery Ass’n v. Spokane County

“recreational vehicle park/campground” under SCZC 14.300.100 also references

recreational facilities. The entire purpose behind the Spokane Gun Club site is to afford

the opportunity to engage in recreational activities.

Webster’s New World College Dictionary does not define “facilities” as including

any hookups or containing any specific utilities or improvements. The fourth definition

references a “toilet,” and the gun club does not intend to permit recreational vehicles to

hookup to a sewage system. Still, the clubhouse, available to recreational vehicle

owners, will provide restroom facilities. The gun club does not indicate that those

restrooms will be unavailable during any particular hours of the day.

One might argue that we should define the term “facilities” within the context of a

recreational vehicle park and conclude that a parking area must include those facilities or

utilities generally available in a recreational vehicle park, but neither SCZC 14.300.100

nor Webster’s New World College Dictionary affords such a definition or qualification

for a park. SCZC 14.300.100 reads that the recreational vehicle “may” include

“facilities, and activities” “typical and ordinary to the recreational vehicle park . . .

industry.” Use of the word “may” means those facilities are permissive and not essential

to the classification as a park. In re Detention of Nelson, 2 Wn. App. 2d 621, 629, 411

P.3d 412 (2018). If the Spokane County Board of Commissioners intended for a

“recreational vehicle park” to include a certain number or types of “facilities,” the

commissioners could have expressed this intent with such language.

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Medical Lake Cemetery Ass’n v. Spokane County

On pages 14 and 15 of the dissent, the dissenting author writes that “[t]hese

additional amenities include ‘recreational services, facilities, and activities for utilization

by the public that are typical and ordinary to the recreational vehicle park/campground

industry.’” The dissent conspicuously omits the word “may,” which precedes the word

“include” in SCZC 14.300.100. Spokane County Zoning Code 14.300.000 reads

consistently with principles of statutory interpretation. The code section reads, in part:

The word “shall” is always mandatory. The word “may” is

permissive, subject to the judgment of the person administering the Code.

No member of the Spokane County Planning Department testified that the department

considers the word “may” as used in SCZC 14.300.100 mandatory.

Remember that SCZC 14.300.100 employs the word “facilities” twice, once in

each sentence. Typically, we would ascribe the same word used multiple times within a

singular definition the same meaning. Simpson Inv. Co. v. Department of Revenue, 141

Wn.2d 139, 160, 3 P.3d 741 (2000). But we read the definition’s two uses of the word

“facilities” to impose two distinct meanings. “Identical words appearing more than once

in the same act, and even in the same section, may be construed differently if it appears

they were used in different places with different intent.” Vanscoter v. Sullivan, 920 F.2d

1441, 1448 (9th Cir. 1990). The definition’s first, mandatory use of the term “facility”

requires that the “facility” provide for camping units, which camping units may include

recreational vehicles. We consider parking spaces for recreational vehicles to fall within

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No. 38850-6-III,

Medical Lake Cemetery Ass’n v. Spokane County

this first definition. In contrast, the second, permissive use of the term “facility” relates

to those utilizations typical and ordinary to the recreational vehicle park.

One may ask if the Spokane Gun Club’s proposed recreational vehicle parking

area includes “facilities,” when would a recreational vehicle park ever not include

“facilities?” We must give some meaning to all of the words inside the zoning code’s

definition of “recreational vehicle park/campground” such that there must be some

circumstances under which a park lacks “facilities.” One such circumstance would be

when a park lacks any security fencing or lighting and when recreational vehicle owners

lack access to food, water, and recreation facilities. Under such a circumstance, the lot

owner only affords a parking spot. We need not speculate under what other

circumstances the park would lack “facilities.”

The Spokane Gun Club additionally argues that the recreational vehicle park

would not be open to the public. The definition of a “recreational vehicle

park/campground” includes opening the park to the public. SCZC 14.300.100. The gun

club’s argument conflicts with its stated intent as shown by the record. We agree that the

gun club may limit use of the parking area to those attending events at the shooting range.

Nevertheless, the events are open to the public. The gun club seeks to encourage the

public at large to use its facilities.

The dissent suggests that the majority opinion transforms a rest stop into a

recreational vehicle park. Even if this intimation was accurate, we are bound by the

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No. 38850-6-III,

Medical Lake Cemetery Ass’n v. Spokane County

language of the Spokane County Zoning Code. But the dissent is wrong. Recreational

vehicle owners do not park recreational vehicles overnight in rest stops. Overnight

parking of an eighteen-wheeler does not transubstantiate a rest stop into a recreational

vehicle campground because a large truck does not constitute a “camping unit” within the

meaning of the Spokane County Zoning Code. SCZC 14.300.100.

The dissent accuses the majority of creating new findings of fact. Yet, the only

task we perform is construing the word “facilities” as used in the Spokane County Zoning

Code. Construing ordinance terms forms a question of law we review de novo.

Department of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002).

In turn, we rule that the hearing examiner committed legal error.

We could affirm the hearing examiner’s grant of the conditional use permit while

requiring that the Spokane Gun Club remove its recreational vehicle parking area.

Nevertheless, the gun club does not ask for this remedy in the event we rule that the

proposed use constitutes a recreational vehicle park in violation of the code. We do not

know if the gun club wishes to operate the shooting range without the ability to house

recreational vehicles. Our ruling does not prohibit the Spokane Gun Club from applying

again for a conditional use permit with modifications to its operating plan.

Issue 9: Whether the proposed use of the property by the Spokane Gun Club is

incompatible with the Spokane County Comprehensive Plan and Spokane County Zoning

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Code’s descriptions of rural traditional zones and incompatible to a neighboring historic

and cultural resource center?

Answer 9: We need not and decline to address this question since we rule in favor

of the Medical Lake Cemetery Association on other grounds.

Issue 10: Whether the grant of the conditional use permit constitutes a regulatory

taking under the United States Constitution?

Answer 10: We need not and decline to address this question since we rule in

favor of the Medical Lake Cemetery Association on other grounds.

Issue 11: Whether the Spokane Gun Club and Spokane County denied some burial

plot owners due process by a failure to give notice?

Answer 11: We need not and decline to address this question since we rule in

favor of the Medical Lake Cemetery Association on other grounds.

Issue 12: Whether the Spokane Gun Club and Spokane County improperly

colluded in order to gain the issuance of the conditional use permit?

Answer 12: We need not and decline to address this question since we rule in

favor of the Medical Lake Cemetery Association on other grounds.

CONCLUSION

We affirm, on different grounds, the superior court’s reversal of the hearing

examiner’s issuance of the conditional use permit for the Spokane Gun Club. The

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Spokane Gun Club’s plans include an “recreational vehicle park/camping,” which park

violates the rural traditional zone in which the property lies.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.

_________________________________

Fearing, C.J.

I CONCUR:

______________________________

Lawrence-Berrey, J.

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No. 38850-6-III

STAAB, J. (dissenting) — I respectfully dissent from my colleagues on two issues:

whether “the law of the case doctrine” should prevent consideration of issues that were

decided by the Lincoln County Superior Court in the Medical Lake Cemetery

Association’s (Cemetery) first appeal, and whether the Spokane Gun Club’s proposed

development qualifies as a recreational vehicle (RV) park/campground. I would

conclude that the law of the case doctrine should preclude our review of the RV park

issue and regardless, the hearing examiner did not error.

1. LAW OF THE CASE

Unlike the majority decision, I would hold that the law of the case doctrine applies

to this case on multiple levels. First, the doctrine should preclude the Pend Oreille

County Superior Court from reconsidering issues that were decided by the Lincoln

County Superior Court; both of whom decided the issues in their appellate capacity.

Additionally, the same doctrine should preclude our review of the issues decided by the

Lincoln County Superior Court because the Cemetery failed to appeal the Lincoln County

Court’s opinion to the court of appeals.

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Medical Lake Cemetery Ass’n v. Spokane County

A. Background

Some additional procedural background is relevant to this issue. In its first LUPA1

petition to the Lincoln County Superior Court, the Cemetery raised 38 issues, challenging

the validity of the hearing examiner’s decision to approve the conditional use permit.

The Lincoln County Superior Court consolidated the alleged errors into eight issues.

On the substantive issues, the court generally ruled in favor of the Spokane Gun

Club. Specifically, the court held that: (1) the hearing examiner was not biased requiring

removal, (2) the proposed use is not prohibited under the comprehensive plan and zoning

code, (3) the proposed use qualifies as a gun range, (4) allowing recreational vehicles to

park in the parking lot overnight does not create an illegal RV park, (5) the county and

the Spokane Gun Club provided adequate notice of the hearing to interested parties, and

(6) the proposed conditional use permit can be compatible with the cemetery and

neighboring property owners.

While concluding that the shooting range could be compatible with the

neighboring property owners, the Lincoln County Superior Court concluded that the

conditional use permit granted by the hearing examiner in this case lacked adequate

mitigating conditions to make it compatible with the neighboring property owners.

Based on this conclusion, the court reversed the grant of a conditional use permit and

1

Land Use Petition Act, ch. 36.70C RCW.

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remanded the LUPA back to the hearing examiner for the limited purpose of addressing

“this court’s concerns and the efficacy of the possible mitigating conditions listed above

and whether such conditions or others should be imposed.” Clerk’s Papers (CP) at 280.

On remand, the hearing examiner denied the Cemetery’s motion to reopen the

record and reconsider issues decided by the Lincoln County Superior Court. The hearing

examiner cited several reasons, including the doctrine of law of the case and the mandate

rule. The hearing examiner noted that the court had reviewed its decision in its appellate

capacity and concluded that once there had been an appellate holding on an issue of law,

that holding would be followed in subsequent stages of the same litigation. The hearing

examiner concluded that the mandate of an appellate court is binding.

The hearing examiner then proceeded to consider the specific issues on remand,

relying on the record as certified in the Lincoln County LUPA. The hearing examiner

imposed additional mitigating conditions on the Spokane Gun Club’s operation. Based

on the supplemental findings and conclusions, the hearing examiner found the shooting

range to be consistent with the comprehensive plan and was consistent with the rural

character of the area.

In its second LUPA petition, filed in Pend Oreille County, the Cemetery identified

64 errors. While the Cemetery’s petition claims that it was only appealing the hearing

examiner’s supplemental decision dated April 26, 2021, along with the hearing

examiner’s decision denying the Cemetery’s motion to reopen the record, it is clear that

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No. 38850-6-III

Medical Lake Cemetery Ass’n v. Spokane County

some of the Cemetery’s 64 alleged errors included rulings made in the hearing

examiner’s first decision. For example, the Pend Oreille County LUPA raised issues of

notice, quoting language from the hearing examiner’s first decision.2 The Pend Oreille

County LUPA also challenged the hearing examiner’s conclusion that the Spokane Gun

Club’s proposed use qualified as a “gun range,” under the Spokane County Zoning Code,

a conclusion reached only in the first decision.

B. Summary of Dissenting Opinion on Law of the Case

On appeal to this court, the Spokane Gun Club argues that the Lincoln County

Superior Court’s decision created the law of the case, and this doctrine should have

precluded the Pend Oreille County Superior Court from reconsidering the same issues.

Additionally, the Spokane Gun Club contends that because the Cemetery failed to appeal

from the Lincoln County Superior Court’s decision, it is precluded from raising those

issues in the second appeal. The Cemetery responds that the Lincoln County Superior

Court lost jurisdiction when it issued its decision and the law of the case doctrine should

not apply to a second LUPA petition challenging new issues decided on remand. The

majority opinion holds that the Lincoln County Superior Court decision was not final

2

The errors identified in the Cemetery’s LUPA petition are vague and fail to specify

which rulings are being challenged. See RCW 36.70C.070(7) (“A land use petition must

set forth: … (7) A separate and concise statement of each error alleged to have been

committed.”). While the petition alleges it is only challenging rulings made on remand, it

is undeniably raising issues decided by the hearing examiner in his first decision.

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Medical Lake Cemetery Ass’n v. Spokane County

because it remanded on one issue and therefore did not become the law of the case.

Additionally, the majority opinion holds that even if the Lincoln County Superior Court

decision created the law of the case, this court is not bound by a lower court’s decision.

I disagree. The law of the case doctrine generally precludes an appellate court at

any level from reconsidering issues that have been decided in a prior appeal. Contrary to

the majority opinion, the focus is on the issues not on whether the decision as a whole is

final. But even if we consider the status of the case rather than rulings on particular

issues, the Lincoln County Superior Court’s decision was a final appellate decision. The

Lincoln County Superior Court made its decision on the merits on several issues

including whether a shooting range could be legally compatible with the zoning. When

the Cemetery failed to appeal these final rulings, the decision became the law of the case.

Absent a recognized exception, this doctrine should preclude further review by another

appellate court on a subsequent appeal, whether at the superior court level or at the court

of appeals.

In this case, application of the law of the case promotes the policies of LUPA. We

should not invite protracted litigation in contravention of the policies of LUPA and the

law of the case by permitting multiple opportunities to raise an issue that has been

decided. “To require courts to consider and reconsider cases at the will of litigants would

deprive the courts of that stability that is necessary in the administration of justice.”

Hong v. Dep’t of Soc. & Health Servs., 146 Wn. App. 698, 710, 192 P.3d 21 (2008).

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Medical Lake Cemetery Ass’n v. Spokane County

C. Principles, Policies and Application of the Law of the Case in a LUPA petition

The majority opinion holds that the Lincoln County Superior Court’s decision was

not the law of the case because it was not a final decision and reasons that it was not a

final decision because the Lincoln County Superior Court remanded the case for further

proceedings on one issue, citing RAP 2.2. This logic misconstrues the doctrine.

The law of the case doctrine applies to issues determined on appeal, not the status

of the case. “In its most common form, the law of the case doctrine stands for the

proposition that once there is an appellate holding enunciating a principle of law, that

holding will be followed in subsequent stages of the same litigation.” Roberson v. Perez,

156 Wn.2d 33, 41, 123 P.3d 844 (2005).

This common law doctrine is codified in RAP 2.5(c), which provides:

Law of the Case Doctrine Restricted. The following provisions apply if

the same case is again before the appellate court following a remand:

(1) Prior Trial Court Action. If a trial court decision is otherwise

properly before the appellate court, the appellate court may at the instance

of a party review and determine the propriety of a decision of the trial court

even though a similar decision was not disputed in an earlier review of the

same case.

(2) Prior Appellate Court Decision. The appellate court may at the

instance of a party review the propriety of an earlier decision of the

appellate court in the same case and, where justice would best be served,

decide the case on the basis of the appellate court’s opinion of the law at

the time of the later review.

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Medical Lake Cemetery Ass’n v. Spokane County

In describing this rule, the Supreme Court has noted that “‘questions determined

on appeal, or which might have been determined had they been presented, will not again

be considered on a subsequent appeal if there is no substantial change in the evidence at a

second determination of the cause.’” Greene v. Rothschild, 68 Wn.2d 1, 7, 414 P.2d

1013 (1966) (footnote omitted) (quoting Adamson v. Traylor, 66 Wn.2d 338, 339, 402

P.2d 499 (1965)).

While the doctrine is discretionary, courts should refrain from reconsidering the

identical issue in a subsequent appeal unless the prior decision was “clearly erroneous

and the application of the doctrine would result in manifest injustice.” Folsom v. County

of Spokane, 111 Wn.2d 256, 264, 759 P.2d 1196 (1988).

In this case, both the Lincoln County Superior Court and the Pend Oreille County

Superior Court reviewed the LUPA petitions as appellate courts. Cave Props. v. City of

Bainbridge Island, 199 Wn. App. 651, 660, 401 P.3d 327 (2017). The Lincoln County

Superior Court enunciated principles of law and decided the issues presented. The

Lincoln County Superior Court’s appellate decision on the merits created the law of the

case.

Even if we were to consider the status of the case rather than the rulings on

questions presented, the Lincoln County Superior Court’s decision was a final appellate

decision. Contrary to the majority’s conclusion, an appellate decision by a superior court

that decides some issues and remands on other issues can be a final decision on those

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No. 38850-6-III

Medical Lake Cemetery Ass’n v. Spokane County

issues decided. I acknowledge, however, that the court of appeals has been inconsistent

in characterizing LUPA appeals when the superior court has remanded for further

proceedings. See Prosser Hill Coal. v. County of Spokane, 176 Wn. App. 280, 283, 309

P.3d 1202 (2013) (this court accepted direct review of a superior court LUPA decision

remanding for new hearing), but see Shaw v. Clallam County, 176 Wn. App. 925, 930-31,

309 P.3d 1216 (2013) (court rejecting direct appeal from a superior court LUPA decision

ordering remand because decision was not final and instead granted discretionary

review).

Here, the issues decided by the Lincoln County Superior Court were a final

decision that was not affected by the limited issue on remand. The Cemetery could have

appealed the Lincoln County Superior Court’s decision to this court. Absent any further

review, those rulings became the law of the case and should not be reconsidered on a

subsequent appeal, especially when the hearing examiner denied the Cemetery’s motion

to reopen the record and reconsider the issues decided by the Lincoln County Superior

Court.

The Cemetery argues that the Pend Oreille County Superior Court was not bound

by the Lincoln County Superior Court decision because the Lincoln County Superior

Court remanded the entire case back to the hearing examiner and thus lost jurisdiction.

The Cemetery contends that a second LUPA petition was necessary in order to review

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No. 38850-6-III

Medical Lake Cemetery Ass’n v. Spokane County

any subsequent land use decision made on remand. This argument mischaracterizes the

record and misconstrues the nature of appellate review.

The Lincoln County Superior Court did not remand the entire case to the hearing

examiner. It is clear from the record that the Lincoln County Superior Court reversed the

hearing examiner’s grant of a conditional use permit and ordered a limited remand for the

sole purpose of “address[ing] this court’s concerns and the efficacy of the possible

mitigating conditions listed above and whether such conditions or others should be

imposed.” CP at 280. This limited remand was not “a complete LUPA remand.”

Cemetery’s Br. of Resp’t at 13. Nor was the Cemetery’s second LUPA petition limited

to subsequent land use rulings made on remand. Instead the Cemetery’s 64 identified

issues included numerous challenges to the hearing examiner’s first decision.3

The Cemetery’s argument that the Lincoln County Superior Court lost jurisdiction

on remand fails because the Lincoln County Superior Court lost jurisdiction when it

issued a final decision terminating review. A final decision terminating review becomes

the law of the case when it is not appealed.

3

The Cemetery’s LUPA petition to Pend Oreille County Superior Court only

appealed the hearing examiner’s supplemental findings and conclusions. Perhaps this is

because jurisdiction under LUPA requires the petition to be filed within 21-days of the

final decision. Yet, the hearing examiner’s supplemental findings and conclusions did

not address many of the issues raised in the Cemetery’s Pend Oreille LUPA petition.

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No. 38850-6-III

Medical Lake Cemetery Ass’n v. Spokane County

There are only two types of appellate decisions: a final decision that terminates

review and an interlocutory decision. RAP 12.3. An interlocutory decision is any

opinion that is not a decision terminating review. RAP 12.3(b). “In other words, an

interlocutory decision is a decision during the course of appellate review that neither

decides the case on the merits nor dismisses the case.” 3 ELIZABETH A. TURNER,

WASHINGTON PRACTICE: RULES PRACTICE RAP 12.3, author’s cmts. at 168 (9th ed.

2022). On the other hand, a decision terminating review is a final decision on the merits.

Id.

When an appellate court issues an interlocutory decision, it retains jurisdiction.

Hong, 146 Wn. App. at 710. When an appellate court issues a decision that terminates

review, it loses jurisdiction. Id. at 709 (citing Pierce County Sheriff v. Civil Srv.

Comm’n, 98 Wn.2d 690, 695, 658 P.2d 648 (1983)). The same rule applies when a

superior court, sitting as an appellate court, issues a decision that terminates review.

“Just as an appellate court loses jurisdiction upon remand to the trial court (Reeploeg v.

Jensen, 81 Wn.2d 541, 546, 503 P.2d 99 (1972)), a superior court reviewing action of an

administrative agency loses jurisdiction upon remand to the agency.” Pierce County

Sheriff, 98 Wn.2d at 695 (citation omitted).

When a superior court sitting as an appellate court issues a final decision that

remands on one or more issues, but does not retain jurisdiction, a second LUPA petition

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No. 38850-6-III

Medical Lake Cemetery Ass’n v. Spokane County

must be filed to review any rulings made on remand. See Id. (error for superior court

reviewing administrative decision in writ of review to allow second appeal by

amendment to original writ rather than filing second motion for writ because superior

court lost jurisdiction upon remand to civil service commission). On the other hand, if a

superior court sitting as an appellate court issues an interlocutory decision, then it does

not lose jurisdiction to review any rulings on remand. Hong, 146 Wn. App. at 711.

Either the Lincoln County Superior Court’s decision was final and it lost

jurisdiction or its decision was interlocutory and it retained jurisdiction. If the Lincoln

County Superior Court decision was final, then the law of the case applies. If it was

interlocutory, then the Cemetery was required to return the case to the Lincoln County

Superior Court for review following remand. By arguing that the Lincoln County

Superior Court lost jurisdiction, the Cemetery implicitly concedes that the Lincoln

County Superior Court’s decision was final and appealable.

We should also decide that the law of the case precludes our review of the Lincoln

County Superior Court’s decision that was not appealed to this court. “‘Under the

doctrine of “law of the case,” as applied in this jurisdiction, the parties, the trial court, and

this court are bound by the holdings of the court on a prior appeal until such time as they

are “authoritatively overruled.”’” Folsom, 111 Wn.2d at 264 (quoting Greene, 68 Wn.2d

at 10). This principle is recognized in RAP 12.2, which provides procedures following

issuance of an appellate court decision and provides in part:

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Medical Lake Cemetery Ass’n v. Spokane County

Upon issuance of the mandate of the appellate court . . . the action taken or

decision made by the appellate court is effective and binding on the parties

to the review and governs all subsequent proceedings in the action in any

court, . . . except as provided in rule 2.5(c)(2).

(emphasis added).

The majority contends that even if the Pend Oreille Superior Court should have

refrained from readdressing issues decided by the Lincoln County Superior Court, the

law of the case does not constrain this court because we have never addressed the Lincoln

County Superior Court’s decision. Majority at 30. This is not a correct application of the

doctrine. While the law of the case doctrine is discretionary, it applies at all levels of

appellate review, and presumes that rulings in a prior appeal are final unless the court in a

subsequent appeal determines that the prior decision is clearly erroneous and the interests

of justice compel our review. See First Small Business Inv. Co. of California v.

Intercapital Corp. of Oregon, 108 Wn.2d 324, 333, 738 P.2d 263 (1987).

In First Small Business, the court of appeals issued an opinion remanding the case

and the Supreme Court declined further review. In the second appeal of the same case,

the Supreme Court accepted review and the respondent argued that the Supreme Court

should not review the court of appeal’s decision from the first appeal. The Supreme

Court recognized that RAP 2.5(c)(2) was discretionary, acknowledged that the law of the

case applied to its review of an earlier decision by the court of appeals, but exercised its

discretion to consider the earlier decision. Id. at 332-33.

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Here, the Cemetery raised the issue of the RV park in its first LUPA appeal in

Lincoln County. The Lincoln County Superior Court, sitting as an appellate court,

addressed that issue. The Cemetery did not appeal that decision to this court. On

remand, the hearing officer, citing the law of the case, refused to reconsider the issue.

The Cemetery filed a second LUPA petition in a different county, claiming it was

challenging only the hearings examiner’s supplemental findings and conclusions, but

resurrected the RV park issue along with several other issues decided in the first appeal.

Under these circumstances, the law of the case should apply because the Cemetery fails

to show that the Lincoln County Superior Court’s decision was erroneous and justice

demands that we exercise our discretion to disregard the law of the case.

Applying law of the case to preclude our review of issues decided in the first

appeal promotes the purpose and goal of both LUPA and the doctrine. The law of the

case doctrine provides finality for litigated issues. Lodis v. Corbis Holdings, Inc., 192

Wn. App. 30, 55, 366 P.3d 1246 (2015). The policy considerations include:

“(1) to protect settled expectations of the parties; (2) to insure uniformity of

decisions; (3) to maintain consistency during the course of a single case; (4)

to effectuate the proper and streamlined administration of justice; and (5) to

bring litigation to an end.”

Id. (quoting In re Estate of Jetter, 590 N.W.2d 254, 258 (S.D. 1999).

Similarly, the express purpose of the LUPA chapter is to “establish[ ] uniform,

expedited appeal procedures and uniform criteria for reviewing such decisions, in order

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to provide consistent, predictable, and timely judicial review.” RCW 36.70C.010

(emphasis added). Indeed, the “strong public policy supporting administrative finality in

land use decisions,” is one reason the courts strictly enforce the 21-day deadline for filing

LUPA appeals. Chelan County v. Nykreim, 146 Wn.2d 904, 931, 52 P.3d 1 (2002)

(quoting Skamania County v. Columbia River Gorge Comm’n, 144 Wn.2d 30, 49, 26

P.3d 241 (2001)). This case is a perfect example of how the failure to apply the doctrine

of the law of the case defeats these policies and purposes.

2. THE GUN CLUB’S PROPOSED DEVELOPMENT DOES NOT INCLUDE AN UNAUTHORIZED

RECREATIONAL VEHICLE PARK

In its second LUPA petition, the Cemetery raises an issue that was decided in its

first LUPA petition: whether the Spokane Gun Club’s proposal to include parking spaces

large enough to accommodate recreational vehicles creates an RV park that is otherwise

prohibited by the applicable “Rural Traditional” (RT) zone under Spokane County’s

Zoning Code. The Spokane Gun Club’s proposed development includes a parking lot

striped with parking stalls large enough to accommodate RVs. These parking stalls will

not have utility hook-ups; there will be no electrical, water, or sewer utilities provided to

the parking stalls.

The Spokane County Zoning Code (SCZC) defines a “Recreational Vehicle

Park/Campground” as “[a]n area where facilities are provided for camping units as

defined herein, utilized by the public for camping for recreation on a temporary basis and

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Medical Lake Cemetery Ass’n v. Spokane County

not designed for long term occupancy.” SCZC 14.300.100. Additional amenities may be

provided, but are not required. Id. These additional amenities include “recreational

services, facilities, and activities for utilization by the public that are typical and ordinary

to the recreational vehicle park/campground industry.” Id.

The hearing examiner determined that when used in reference to RVs and RV

parks, the term “facilities” typically references the ability to “hook up” the RV to utilities

at the site or in the RV park complex. CP at 135. In light of this contextualized meaning,

the hearing examiner held that providing parking stalls without such facilities does not

create a recreational vehicle park/campground. Id. The hearing examiner noted that the

availability of food from a clubhouse or onsite restrooms did not change the outcome

since such “services and facilities could be allowed in a Community Recreational

Facility, which is an allowed use in the Rural Traditional zone.” CP at 212. Nor was it

relevant that recreational vehicles were undisputedly “camping units” and allowing them

to dry camp for several days would constitute camping because “camping alone is not a

prohibited activity.” Id.

The Cemetery raises this issue in its brief to this court, but the entirety of its

argument boils down to one sentence: “[Spokane Gun Club’s] proposed RV

accommodations, with RV stalls and indoor clubhouse kitchen/dining, restrooms and pro-

shop, and with a sport-shooting complex facility for those staying in camping units, is a

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prohibited RV Park in the RT Zone under the SCZC.” Cemetery’s Br. of Resp’t at 29.

The majority opinion agrees with the Cemetery.

I disagree with the majority’s conclusion for several reasons. First, the Cemetery

makes no attempt to meet its burden of identifying which statutory standards were

violated by the hearing examiner’s decision. A party seeking relief in a LUPA petition

must establish that the hearing examiner erred under one of the six standards set forth in

RCW 36.70C.130(1). Lakeside Indus. v. Thurston County, 119 Wn. App. 886, 894, 83

P.3d 433 (2004). In general terms, the Cemetery “must establish either the hearing

examiner made a mistake of law, that there was insufficient evidence to support the

decision, or that the decision was clearly erroneous.” City of University Place v.

McGuire, 144 Wn.2d 640, 647, 30 P.3d 453 (2001). Unchallenged findings are verities,

challenged findings are reviewed for substantial evidence, and errors of law are reviewed

de novo. Seven Hills, LLC v. Chelan County, 198 Wn.2d 371, 384, 495 P.3d 778 (2021).

Our review is limited to the record available to the hearing examiner. Id.

The Cemetery makes no mention of the standards in RCW 36.70C.130(1) in either

its LUPA petition or its appellate brief. Nor does it make any attempt to demonstrate that

it has met its burden of proving one of the standards. The majority opinion makes up for

the Cemetery’s failure by doing the Cemetery’s work for it.

In the Cemetery’s LUPA petition, it asserts that the hearing examiner erred as a

matter of law and/or fact in defining a “Recreational Vehicle Park/Campground,” and the

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No. 38850-6-III

Medical Lake Cemetery Ass’n v. Spokane County

Spokane Gun Club’s proposal did not constitute an RV park. CP at 24. This generalized

statement is insufficient to challenge any particularized finding of fact and the Cemetery

makes no attempt to argue that the hearing examiner’s findings are not supported by

substantial evidence. Thus, the findings of the hearing examiner are verities on appeal

and any alleged errors in determining the meaning of statutory terms is a question of law

reviewed de novo. Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43

P.3d 4 (2002).

The majority opinion’s conclusion that the Spokane Gun Club’s proposal creates

an unauthorized RV park is based on a statutory interpretation that fails to give effect to

the zoning code’s plain meaning. Similar to statutory construction, our primary goal in

construing a zoning code is to determine the legislative intent. See Id. If the meaning of

a code is plain on its face, then we consider the plain meaning “as an expression of

legislative intent.” Id. at 9-10. Plain meaning is derived from considering the ordinance

in context, not only by looking at the ordinance itself but also related ordinances. Id. at

10.

As noted above, the SCZC defines a “Recreational Vehicle Park/Campground” as

“[a]n area where facilities are provided for camping units as defined herein, utilized by

the public for camping for recreation on a temporary basis and not designed for long term

occupancy.” SCZC 14.300.100 (emphasis added). In other words, it is not just that

facilities are provided, instead the facilities are provided specifically for camping units.

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No. 38850-6-III

Medical Lake Cemetery Ass’n v. Spokane County

As the hearing examiner reasonably noted, the plain meaning of this phrase means the

availability of utilities for camping units either at the site or in the park. This is simply a

common-sense application of the plain meaning of the zoning code.

Nevertheless, the majority opinion reasons that a contextualized definition of

“facilities” provided for camping units is not appropriate and instead defines “facilities”

in isolation as something that “facilitates or makes an occurrence happen.” Majority at

39. The majority opinion then goes on to make a new finding of fact based on evidence

in the record that was not argued by the Cemetery or found by the hearing examiner:

“The parking area planned for the recreational vehicles by the Spokane Gun Club

together with the security apparatus and amenities available at the clubhouse facilitates

the use of recreational vehicles.” Majority at 39 (emphasis added). Security lights and

fencing are not raised in the Cemetery’s briefs, and were never considered by the hearing

examiner as evidence of an RV park. Nor did the hearing examiner find that such

features facilitated the use of RVs. Indeed, the hearing examiner found just the opposite.

Finally, the majority opinion improperly shifts the burden to the Spokane Gun Club and

notes that the Spokane Gun Club had not proved that the restrooms are not available for

overnight campers. Majority at 40.

The majority’s conclusion, that marking parking stalls large enough to

accommodate an RV and providing onsite restrooms is sufficient to create an RV park,

has the unintended consequence of turning every rest stop into an RV park. In addition,

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the conclusion that large parking spots plus on-site restrooms creates an RV park, is

easily circumvented. What if the Spokane Gun Club does not stripe parking spots large

enough for RVs, but people park their RVs using more than one regular spot? As the

hearing examiner noted, providing a clubhouse and restrooms is allowed in the RT zone.

CP at 135. And allowing overnight parking does not create an RV park because camping

is not a prohibited activity. Id.

The plain meaning of the zoning code defines an RV park as an area where

facilities are provided specifically for camping units. This is what turns a parking lot into

an RV park. The hearing examiner did not error in applying this definition and

concluding that the Spokane Gun Club’s proposed development did not include an

unauthorized RV park.

_________________________________

Staab, J.

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