6 NICS App. 101, GOBIN v. TULALIP TRIBES’ B.O.D. (December 2002)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

TULALIP, WASHINGTON

Kim Gobin, Appellant,

v.

The Tulalip Tribes’ Board of Directors, Appellee/Cross Appellant.

No. Consolidated TUL-Ci-6/00-200 and 219 (December 6, 2002)

SYLLABUS^*

Trial court upheld tribal Board of Directors’ decision to modify a land use rezone permit and took jurisdiction over developer’s challenge to land use moratorium. Board of Director’s and developer both appeal. Court of Appeals vacates trial court rulings and dismisses developers claims, holding that (1) trial court lacked personal jurisdiction over Board of Directors because Board had never been properly served, (2) developer’s challenge to permit modifications was moot because developer had subsequently developed the affected property in accord with the permit modifications, (3) trial court lacked subject matter jurisdiction over the developer’s challenge to the moratorium, and (4) developer lacked standing to challenge the moratorium because developer had nothing more than an expectancy interest in affected properties.

Before:     Michelle Demmert, Chief Justice; Randal B. Brown, Justice; Gregory M. Silverman, Justice.

Appearances:    Claudia Newman, Bricklin & Gendler, LLP, counsel for Kim Gobin; A. Reid Allison III, Office of the Reservation Attorney, counsel for Tulalip Tribes’ Board of Directors.

OPINION

Silverman, J.:

The case at bar is a consolidated appeal of two cases before the Tulalip Tribal Court, Gobin v. Tulalip Tribes Bd. of Dirs., file number TUL-Ci-6/00-200, with respect to the Board’s modifications to a land use rezone permit and the emergency moratorium instituted by the Board that barred future land use permits for residential rezone/subdivisions and Gobin v. Tulalip

6 NICS App. 101, GOBIN v. TULALIP TRIBES’ B.O.D. (December 2002) p. 102

Tribes Bd. of Dirs., file number TUL-Ci-6/00-219, with respect to an Ordinance 110 moratorium barring future land use permits for residential rezone/subdivisions.

For the reasons set forth hereinbelow, we vacate the decisions of the lower court and dismiss both actions.

I. The Facts

Appellant, Kim Gobin (Gobin), a member of the Tulalip Tribes and principal of K & G construction, is a land developer. She purchases land within the Tulalip reservation boundaries from non-Indians and converts the land into subdivisions. In order to give the Tulalip Tribes control over a portion of the land while also providing housing for members of the Tulalip Tribes, Gobin applies for permits to zone portions of the land for tribal housing, while simultaneously leaving portions of the subdivisions as undeveloped, open space under Tribal control.

Pursuant to Tulalip Tribal Zoning Ordinance § 80.4.1(a)¹, on November 3, 1999, Gobin submitted an application to build a planned residential development on 10.87 acres of land within the Tulalip reservation. The dispute revolves around this 10.87 acres, which is owned by Gobin and located along Quil Ceda Road, 27th Avenue Northeast. Gobin’s proposal suggested that the Tulalip Utilities Authority would supply water to each residential unit and each residential unit would rely on individual septic systems. Gobin hired experts to perform scientific studies and draft engineering plans to ensure that the soil was sufficient to hold the proposed septic systems.² Gobin’s initial proposal requested a permit for 20 homes on 21 lots, with an average lot size of 12,500 square feet, which left 41 percent of the site as undeveloped open space. Shortly thereafter, Gobin agreed to divide the property into 20 lots and build only 19 homes, which still left 41 percent of the site as undeveloped open space. Accordingly, the lot sizes would be approximately one-quarter acre each and approximately five acres would remain as undeveloped open space under the control of the Tulalip Tribes.

The process for obtaining a permit for a Planned Residential Development (PRD) typically involves three governmental entities of the Tulalip Tribes. The Tulalip Tribes Department of Community Development (DCD) is, inter alia, responsible for receiving and maintaining files on permit applications for PRDs and their disposition.³ After receipt of an

6 NICS App. 101, GOBIN v. TULALIP TRIBES’ B.O.D. (December 2002) p. 103

application, the DCD may request additional studies or information, such as traffic studies, environmental impact studies, etc., if the DCD believes such are necessary. Once the DCD completes its review of an application, it forwards the application together with its recommendation to the Planning Commission. The Planning Commission (PC) is responsible for reviewing and gathering facts regarding applications for a PRD permit, holding a public hearing regarding the permit, and making recommendations to the Board.⁴ The Board’s disposition of the permit is placed on file with the DCD.

Pursuant to TTT 80.37.2⁵, the PC held a public hearing on Gobin’s PRD permit application on March 15, 2000. During this hearing, Chris Holland, a DCD staff representative, explained that the DCD originally recommended that the PC recommend that the permit be granted with the condition that the lots be one-half acre in size rather than the proposed one-quarter acre.

On April 19, 2000, the PC issued Resolution No. 2000-005, which recommended that the Board grant Gobin the permit if it was conditioned upon one-half acre lots.6 The PC’s recommendation was based on testimony by concerned citizens, not on any hydrological studies, environmental engineering opinions, or other field consultants. Under the recommended permit, there would be no land outside of the one-half acre building lots to dedicate as undeveloped open space.

On May 19, 2000, the Board held a public meeting⁶ and accepted the PC’s recommendation.⁷ Later in the agenda, at the same meeting, Resolution No. 00-226, an emergency moratorium, was enacted for the purpose of collecting data on reservation septic system problems.⁸ Ordinance 80 gives the Board the power to issue the emergency moratorium,⁹ but also requires a public hearing to be held prior to the enactment of any zoning amendment.¹⁰

6 NICS App. 101, GOBIN v. TULALIP TRIBES’ B.O.D. (December 2002) p. 104

On June 3, 2000, exercising its legislative powers, the Board enacted Ordinance 110, which prohibited processing future rezoning and subdivision permits not permitted by TTT 110.1(b)-(d). TTT 110.1(b)-(d) states in relevant part:

Gobin alleges that she is adversely affected by the emergency moratorium and the Ordinance 110 moratorium because she has an interest in an additional 70 acres on the reservation. Gobin does not own the 70 acres, nor does she have an option to purchase the 70 acres. Nor does she have any outstanding permits regarding the 70 acres. However, Gobin did have a desire to purchase these 70 acres and apply for rezone/subdivision permits and these moratoria barred the Board from granting such permits.

Gobin also alleges that the Board improperly accepted the PC’s recommendation to modify the requested PRD permit by requiring one-half acre lots in the proposed PRD. As of April 23, 2002, however, Gobin had developed the entire property using one-half acre lots and now retains but a single one-half acre of the site. Letter from Attorney Claudia Newman to Tulalip Tribal Court of Appeals, dated 04/23/02).

The court below held that: 1) the Board’s decision to modify Gobin's permit was not arbitrary and capricious; 2) Gobin had standing to bring the moratorium claims because she was able to articulate a possible injury, namely the cessation of her business development activities; and 3) the court had subject matter jurisdiction to hear the moratorium claims. The court speculated, however, that it lacked authority to order the Tribe to take any affirmative action.

6 NICS App. 101, GOBIN v. TULALIP TRIBES’ B.O.D. (December 2002) p. 105

Gobin appeals the Tribal Court order on the grounds that the Tribal Court erred by holding that (1) the only issue before it was whether the decision by the Board was arbitrary and capricious and (2) the Board’s decision was not arbitrary and capricious. Gobin argues that this court has jurisdiction to decide whether the moratoria were unlawful or in excess of jurisdiction.

The Board has filed a cross-appeal from the same order. The Board does not challenge the merits of the decisions reached by the Tribal Court. Rather, the Board argues that the Tribal Court erred by not dismissing the actions on procedural grounds. First, the Board argues that Gobin’s claims should be dismissed for lack of personal jurisdiction and on the grounds that Gobin’s appeal has become moot. Second, the Board argues that the Tribal Court erred by not dismissing the emergency moratorium and Ordinance 110 moratorium claims for lack of personal jurisdiction, lack of subject matter jurisdiction, and lack of standing to bring the present actions.

As explained below, this court agrees with the Cross-Appellant and Appellee, Tulalip Tribes’ Board of Directors, that the two actions should have been dismissed for procedural infirmities, including lack of personal jurisdiction, lack of subject matter jurisdiction, lack of standing, and mootness.

II. Personal Jurisdiction

The first issue is whether this court has personal jurisdiction over the defendant. The Indian Civil Rights Act provides that no Indian Tribe, in exercising powers of self-government, shall “deprive any person of liberty or property without due process of law.” 25 U.S.C. § 1302 (2000). In accordance with due process requirements, the defendant must receive notice of the action in order for the court to have personal jurisdiction. Kulko v. Super. Ct. of California, 436 U.S. 84, 91 (1978).¹¹ Notice must be “reasonably calculated, under all of the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). An appeal should be denied for failure to provide proof of service on an opposing party. Wisconsin v. White Thunder, 29 ILR 6004 (Ho-Chunk Nation Supreme Court 2001).

Gobin contends that the court clerk should have provided notice of the appeal. Gobin’s argument finds support in Appellate Rule 1.11.2(b)¹², which provides that the appealing party should notify the court clerk of the appeal within five days and that the clerk shall issue notice of appeal to the trial judge and to all parties to the action. However, the deficiency of process is at

6 NICS App. 101, GOBIN v. TULALIP TRIBES’ B.O.D. (December 2002) p. 106

the trial, not appellate level. The Civil Rules of Tribal Court, which governed the proceedings in the court below, provide that notice shall be given within 30 days from the date the complaint is filed.¹³ While it is true that the Civil Rules of Tribal Court do not expressly place the burden of service of process on either the plaintiff or the court clerk, it can be inferred that, in the absence of an explicit rule, the Tulalip Tribe intended to follow the customary practice in state and federal courts of placing the burden of service of process on the plaintiff.¹⁴ If the tribe intended to deviate from the customary practice, it would have expressly stated so, just as it did in Appellate Rule 1.11.2(b). Therefore, we hold that the plaintiff is responsible for service of process.¹⁵

It is undisputed that, to date, Gobin has not served the defendant notice in either action. Moreover, defendant has not consented to the personal jurisdiction of the court. Accordingly, Gobin’s failure to follow the notice requirement established in the Civil Rules of Tribal Court leaves this court without personal jurisdiction over the defendant.

III. Mootness—Modifications to the Rezone Permit

The next issue is whether Gobin has mooted her own appeal regarding the Board’s modifications to her rezone permit. A case is moot when “the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969). Moreover, a case is moot when the court can no longer grant the relief originally requested or can no longer provide effective relief. Church of Scientology of Cal. v. U.S., 506 U.S. 9, 12 (1992). When an appeal is moot, it should be dismissed. Id.

It seems clear under this well-established rule that Gobin foreclosed this appeal by completing the subdivision. This court cannot provide effective relief because even if we rendered a decision in favor of Gobin on the permit, it would be of no value to her; the houses in the subdivision have been completed according to the Planning Commission’s recommendation of one-half acre lots. Letter from Attorney Claudia Newman to Tulalip Tribal Court of Appeals, dated 04/23/02). Accordingly, we hold that the appeal challenging the Board’s modifications to Gobin’s requested permit is moot and, therefore, must be dismissed.

We note that if the Gobin had not mooted her own appeal, then the rezoning permit amendment would have been remanded to the Tribal Court. The amendment was made without any factual basis in the record. There was no evidence, through hydrological consultants, environmental engineers or other field experts, to provide a factual basis for the recommendation

6 NICS App. 101, GOBIN v. TULALIP TRIBES’ B.O.D. (December 2002) p. 107

to modify the permit made by the PC and approved by the Board. In fact, the factual basis that existed supported Gobin’s original subdivision permit request.

IV. Subject Matter Jurisdiction—the Moratoria Claims

The Tulalip Tribal Court is a court of limited jurisdiction; therefore, it must have express statutory authority to hear a case.¹⁶ In the case at bar, Tulalip Zoning Ordinance 80 further limits the jurisdiction of this court.¹⁷ Gobin contends that the emergency moratorium and the Ordinance 110 moratorium are amendments to Ordinance 80 and therefore must be preceded by a public hearing.¹⁸ Gobin further contends that TTT 80.37.3(d) requires notice of the public hearing.¹⁹ The Board argues in response that Ordinance 110 is a wholly separate ordinance and is not an amendment to Ordinance 80; therefore, it was within their legislative power to enact the moratorium without public notice. The Board further argues that even if the emergency moratorium and the Ordinance 110 moratorium are construed as amendments to Ordinance 80, still they are lawful amendments thereto because the April 19, 2000 meeting was public. Gobin argues in response that because the “public hearing” of April 19, 2000 was not preceded by proper notice, both the emergency moratorium and the Ordinance 110 moratorium are unlawful.

In regards to the emergency moratorium enacted under Ordinance 80, we note that a public hearing without public notice presents a problem because the emergency moratorium was clearly enacted under the authority of Ordinance 80 and Ordinance 80 requires a hearing.²⁰ Likewise, it is unpersuasive that the May 19, 2000 meeting satisfies the public meeting requirement because legally sufficient notice was not given and the public needs notice in order to be heard on a matter. The record is unclear as to whether the emergency moratorium was repealed when Ordinance 110 was adopted; however, for the purpose of this appeal, the court will assume that both the Ordinance 110 moratorium and the emergency moratorium under Ordinance 80 are in effect.

With regard to Ordinance 110, we need not decide whether this was an amendment to Ordinance 80 to resolve the present appeal. Moreover, the court will not comment on whether Ordinance 110 is subject to the public hearing requirement.

6 NICS App. 101, GOBIN v. TULALIP TRIBES’ B.O.D. (December 2002) p. 108

If Ordinance 110 is not an amendment to Ordinance 80, then the court clearly lacks subject matter jurisdiction under TTT 80.39.3, which limits the court’s jurisdiction to zoning ordinance amendments.²¹

If Ordinance 110 is an amendment to Ordinance 80, then the court still lacks subject matter jurisdiction under TTT 80.39.3 because the appeal was not raised in an adjudicatory context. The conclusion that TTT 80.39.3 requires a legal challenge to an amendment of Ordinance 80 to be raised in an adjudicatory setting is unavoidable when the two sentences composing this provision are read together. The language of its second sentence clearly assumes an adjudicatory setting by stating that the court’s jurisdiction “shall be limited to determining whether the decision subject to review was arbitrary and capricious, unlawful, or in excess of jurisdiction.”²² In the present matter, Gobin does not appeal an order granting, modifying, or rejecting a permit as a result of Ordinance 110; therefore, the lower court did not have subject matter jurisdiction to consider this issue and, a fortiori, our court is also without subject matter jurisdiction to consider it. For analogous reasons, this court lacks subject matter jurisdiction over the challenge to the emergency moratorium enacted under Ordinance 80.

V. Standing—the Moratoria Claims

The plaintiff must have standing in order for the court to have jurisdiction. Allen v. Wright, 468 U.S. 737, 750-51 (1984). Standing exists to challenge a zoning ordinance if the plaintiff has a legal interest that is adversely and directly affected by the ordinance. N.E. Concerned Citizens, Inc. v. City of Hickory, 143 N.C. App. 272, 276, 545 S.E. 2d 768 (2001). A plaintiff has a legal interest sufficient to satisfy standing if he or she “demonstrates a real interest in the subject matter of the lawsuit, that is, a present, substantial interest, as distinguished from a mere expectancy, or future contingent interest, and the party must show that a benefit will accrue it by the relief granted.” Primark, Inc. v. Burier Gardens Assocs., 63 Wash. App. 900, 907, 823 P.2d 1116 (1992).

Gobin alleges and the Tribal Court found that she has standing based on the fact that she desired to purchase an additional 70 acres and apply for rezone/subdivision permits. It is well settled, however, that harm to a mere desire is not sufficient to give the plaintiff legal standing to bring a suit. Id. At this time, Gobin has not taken any action that creates a legal interest in the 70 acres. Gobin does not own the 70 acres, nor does she have any option to purchase the 70 acres. Moreover, Gobin is lacking any permit regarding the 70 acres. Accordingly, we hold that at this time, Gobin has nothing more than a mere expectancy, which leaves her without sufficient standing to challenge Ordinance 110. For this reason as well, therefore, the moratorium claims must be dismissed.

6 NICS App. 101, GOBIN v. TULALIP TRIBES’ B.O.D. (December 2002) p. 109

VI. Conclusion

It is the order of this court that the decisions of the court below be vacated and the cases dismissed. This court lacks personal jurisdiction over the Board due to Gobin’s failure to serve the Board with process. Further, Gobin has mooted her own rezone/subdivision permit modifications claim. Finally, Gobin lacks standing to bring any moratorium claims and this court lacks subject matter jurisdiction to hear claims that do not arise out of an adjudicatory context.

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The syllabus is not a part of the Court's Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this Reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.

TTT 80.4.1(a). “The following uses and activities are prohibited unless a use and occupancy permit is first obtained: (a) The new construction of single family residential, commercial, multifamily residential, industrial, business park or professional buildings on the Tulalip Reservation, including additions, alterations, and accessory buildings associated with these structures.”

Soil analyses showed that the soils on the site would support septic systems on the proposed 12,500 square foot lots.

TTT 80.36.1(a). “The Tulalip Tribes Department of Community Development (DCD) shall administer this Ordinance. The DCD shall maintain files of all applications and permits and decisions rendered by the Tulalip Tribes. In addition to the other authority conferred by this Ordinance, the responsibilities and authority of DCD shall include, but not be limited to the following: (a) Receipt of applications for permits and approvals required by this Ordinance.”

TTT 80.37.1(g). “In addition to exercising the authority conferred by the provisions of Ordinance No. 56, and by other provisions of this Ordinance, the Planning Commission may…approve, disapprove, and condition any application for a conditional use permit.”

TTT 80.37.5. “A public hearing shall be conducted by the Planning Commission, or a hearing examiner appointed by the Planning Commission, on all conditional use permit applications.”

This meeting was not preceded by notice to the public.

TTT 80.38.1. “The Board of Directors shall make the final decision on all recommendations of the Planning Commission concerning comprehensive plan and zoning ordinance amendments, rezones and subdivisions.”

Resolution No. 00-226(2). “The subdivision and rezone moratorium shall apply for one year until May 19, 2001. During the course of the next, Tulalip staff shall investigate the extent and severity of septic system problems on the reservation and devise a detailed construction and funding plan to provide public sewer on the reservation.”

TTT 80.38.2. “When it deems it to be in the public interest, the Board of Directors may initiate consideration of an ordinance establishing official controls, or amendments to the zoning ordinance, zoning map, or the comprehensive plan.”

See TTT 80.37.3(c). “Hearing. Before recommending approval or disapproval of a comprehensive plan amendment, zoning ordinance amendment, rezone, or subdivision application to the Board of Directors, the Planning Commission, or a hearing examiner appointed by the Planning Commission, shall hold at least one public hearing, and may hold additional public hearings. The rules of conduct for such public hearing(s) shall be established by the Planning Commission, or the appointed hearing examiner.”

While a court of the Tulalip Tribes is not bound by foreign case law authority, it may use such law as persuasive authority.

Appellate Rule 1.1.2(b). “A party may notify the clerk that he/she appeals and the grounds for the appeal either orally or in writing, within the next five (5) days, the clerk shall prepare a written notice of appeal and send or give a copy of it to the trial judge and to all parties, the case docket number, the date and nature of the judgment appealed from, and the reasons why the party appealing thinks the court made a mistake.”

TTT 49.4.4.2.1. “The first notice shall notify the defendant to appeal in person, in writing, or by an attorney on or before the time and at the place stated in the notice, which shall not be less than fifteen (15) days nor in more than thirty (30) days from the date the complaint was filed.

Fed. R. Civ. P. 4(c)(1). “A summons shall be served together with a copy of the complaint. The plaintiff is responsible for service of a summons and a complaint within the time allowed under subdivision (m) and shall furnish the person effecting service with the necessary copies of the summons and complaint.”

Compare Fed. R. Civ. P. 4(c)(1).

See Tulalip Tribal Title 49.1.2.1 – “The jurisdiction of the Tulalip Tribal Courts shall extend, except as limited by federal or Tulalip tribal law…”

TTT 80.39.3. “Decisions of the Board of Directors on comprehensive plan amendments, zoning ordinance amendments, rezones, subdivision applications, and conditional use permits shall be final unless appealed to the Tulalip Tribal Court by written notice of appeal filed with the Clerk of the Court within fifteen (15) days of issuance of the Board’s decision. The jurisdiction of the Tribal Court on appeals shall be limited to determining whether the decision subject to review was arbitrary and capricious, unlawful, or in excess of jurisdiction, in which case the Court shall vacate the decision and remand the matter to the Board of Directors for further proceedings consistent with the Tribal Court’s decision.”

See TTT 80.37.3(c).

TTT 80.37.3(d). “DCD shall give published notice of the time, place and purpose of each hearing as provided in 36.1(f).

See TTT 80.37.3(c).

See TTT 80.39.3.

TTT 80.39.3.