No. 21590-3-IIIThe Court of Appeals of Washington, Division Three. Panel Eight.
December 9, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 02-2-03780-6. Judgment or order under review. Date filed: 10/25/2002.
Counsel for Appellant(s), Stephen Kerr Eugster, Eugster Law Offices PSC, 423 W 1st Ave Ste 100, Spokane, WA 99201-3700.
Counsel for Respondent(s), Joseph Todd Reuter, Preston Gates
Ellis LLP, 601 W Riverside Ave Ste 1400, Spokane, WA 99201-0628.
KURTZ, J.
The Friends of Swinyard Park (Friends) object to a skateboard area constructed by the City of Deer Park (City) in a public park. The Friends filed an application for a writ of prohibition or mandamus requiring the cessation of use and dismantling of the skateboard area. Additionally, the Friends sought a declaratory judgment that the skateboard area constitutes a prohibited use because the skateboard area violated environmental and zoning laws, and setback regulations. Finally, the Friends claim that the skateboard area constitutes a public and private nuisance which they asked the trial court to abate. After a hearing, the trial court dismissed the Friends’ application and all of their claims.
We hold the trial court properly dismissed the Friends’ application for a writ of prohibition or mandamus. Because the Friends presented no evidence that the City attempted to act in excess of its authority, the court could not issue a writ of prohibition. Because the Friends have no clear legal right to have the skateboard area closed and the City has no clear duty to close the park, the court could not issue a writ of mandamus.
We further hold the court did not abuse its discretion by dismissing the declaratory judgment action because the Friends have an adequate remedy under the Land-Use Petition Act (LUPA). But we reverse the court’s decision that there was a final land use decision and that the 21-day time limit for filing a LUPA petition had lapsed. Likewise, we reverse the court’s land use decisions regarding environmental and zoning laws, and setback regulations because those issues are properly reviewable under LUPA.
Finally, we affirm the trial court’s dismissal of the Friends’ claim that the skateboard area is a public nuisance per se because that claim implicates land use decisions for which LUPA is the exclusive avenue of appeal. We reverse, however, the court’s dismissal of the Friends’ private nuisance claim because there are genuine issues of material fact regarding whether the skateboard area unreasonably interferes with the Friends’ use and enjoyment of their property.
FACTS
The City of Deer Park installed a skateboard area within the boundaries of Swinyard Park, a public park located in Deer Park. The skateboard area consists of 12 ramps on an asphalt pad.
Roger Krieger is the City’s community service director and also acts as the director of planning. As part of his duties as the director of planning, Mr. Krieger was the individual responsible for planning the location of the skateboard area. In his declaration, Mr. Krieger states that he made calculations and measurements to ensure that the skateboard area would not encroach on the right-of-way of the adjacent street. He further states that he also determined that (1) a building permit was unnecessary because the building code did not apply to the ramps placed in the skateboard area, and (2) the skateboard area was categorically exempt from State Environmental Policy Act (SEPA) requirements pursuant to WAC 197-11-800(1)(c).
Between April and May 2002, counsel for the Friends sent four separate letters to the City concerning the skateboard area. Two of these letters were sent directly to Mr. Krieger; the other two letters were sent to Mayor Michael D. Wolfe.
The first letter was sent on April 4, 2002, to Mr. Krieger and Leslie Busch, the Deer Park City Clerk. This letter asked that certain documents be disclosed by the City. On April 9, the Friends sent a second letter requesting (1) confirmation of the park’s zone classification, and (2) that the Friends be provided with a copy of the conditional use permit (CUP) issued for the skateboard area. On April 19, Ms. Busch responded to the first letter by providing several of the documents requested.
On May 10, the Friends sent a letter to Mayor Wolfe indicating that they had yet to receive a copy of the CUP for the skateboard area that they had requested in their April 9 letter to Mr. Krieger. The Friends also demanded that the skateboard area be closed and dismantled because of the City’s failure to obtain a CUP. This letter also stated: `If you disagree with my position that the Skate Board Park requires a proper Conditional Use Permit please advise and in so doing so give me an idea of why you think the City of Deer Park Land Use Code does not require a Conditional Use Permit.’ Clerk’s Papers (CP) at 59.
On May 10, the Friends also sent a second letter to the mayor. This letter demanded that the skateboard area be shut down because, `[n]owhere in the regulations can there be found a provision which allows for the use of the property in the zone for a Skate Board Park — it is not a permitted use, it is not an accessory use and it cannot be allowed as a conditional use.’ CP at 61. In closing, the letter requested, `[i]f you disagree with my position please advise.’ CP at 61.
In a letter dated May 13, the mayor responded to the Friends’ requests. In his response, the mayor stated that the City was not required to obtain a CUP for the skateboard area and that the skateboard area was a permitted use under Deer Park Municipal Code (DPMC) 18.66.020(f). The mayor’s letter also stated: `I have no desire or intention to close and dismantle the skate facility as you have requested. It appears to me that locating the Skate Facility at Swinyard Park was appropriate when it happened and is as appropriate today.’ CP at 64. Later, in a declaration filed July 29, 2002, Mayor Wolfe explained that he had drafted the letter of May 13 after `conferring with the Deer Park Director of Planning, Roger Krieger, on DPMC sec. 18.66.020(f) among other things.’ CP at 55.
Procedural History. Thereafter, the Friends filed an application for a writ of prohibition or mandamus seeking an order mandating that the City dismantle the skateboard area. As part of their application, the Friends sought a declaratory judgment that the skateboard area constitutes a prohibited and illegal use because the skateboard area (1) is not a permitted use in the zone applicable to the property, (2) violates the setback regulation, (3) did not comply with SEPA, and (4) constitutes a public and private nuisance. Additionally, the Friends asked the court to abate the skateboard area based upon their allegation that it constitutes either a public or private nuisance. In response, the City filed an answer that, among other things, requested the court to deny the Friends’ application for the writs and to dismiss the Friends’ other claims with prejudice.
Then, the Friends obtained an order requiring the City to show cause why the Friends’ application for a writ of prohibition or mandamus should not be granted. The City filed a response, asking the court to deny the Friends’ application. After a show cause hearing, the trial court entered findings of fact and conclusions of law. Although the record before this court indicates that the scope of the hearing should have been limited to the Friends’ application for a writ of either prohibition or mandamus, the trial court addressed all of the issues raised by the Friends’ application including their request for a declaratory judgment and abatement of a nuisance. While the court dismissed these claims because there was an adequate alternative remedy under LUPA, the court nevertheless decided the land use decisions raised by the claims. Significantly, the Friends do not assign error to the procedure by which these issues came on before the court, although the Friends do assign error to the substance of the court’s rulings.
After a hearing, the court concluded that the Friends did not have standing to challenge the City’s SEPA determinations and that, in any event, the actions of the City were exempt from SEPA requirements. The court decided the inclusion of a skateboard area within Swinyard Park was a proper use under DPMC 18.66.020 and that there was no violation of the setback requirement. Additionally, the court concluded that the skateboard area did not constitute a public or private nuisance. The court also concluded that the statutory requirements granting declaratory relief had not been met. The court issued an order dismissing the application and entered judgment for the City. The Friends appeal.
Application for Writs of Prohibition or Mandamus.
Standard of Review. A request for an extraordinary writ is a special proceeding under chapter 7.16 RCW. Significantly, RCW 7.16.020 provides that a `judgment in a special proceeding is the final determination of the rights of the parties therein.’ Where issues of fact are raised, these issues may be resolved by the court or a jury, and an appropriate judgment entered pursuant to the verdict or findings. See Peterson v. Dep’t of Ecology, 92 Wn.2d 306, 311, 596 P.2d 285 (1979).
RCW 7.16.350, which governs appellate review of rulings on extraordinary writs, states: `From a final judgment in the superior court, in any such proceeding, appellate review by the supreme court or the court of appeals may be sought as in other actions.’ Consequently, a trial court’s disposition of an application for an extraordinary writ is an appealable final judgment, and we resolve this appeal on the merits. See Brower v. Charles, 82 Wn. App. 53, 57, 914 P.2d 1202 (1996).
Here, the trial court prepared findings of fact and conclusions of law as required under CR 52 and CR 81(a). Hence, we apply the standard of review applicable to bench trials and determine if the trial court’s findings of fact are supported by substantial evidence and whether those findings of fact support the trial court’s conclusions of law. See Landmark Dev., Inc. v. City of Roy, 138 Wn.2d 561, 573, 980 P.2d 1234
(1999).
Writ of Prohibition. A writ of prohibition `arrests the proceedings of any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person.’ RCW 7.16.290. A writ of prohibition may be invoked to prohibit judicial, legislative, executive, or administrative acts if the official or body to whom it is directed is acting in excess of its power. Winsor v. Bridges, 24 Wn. 540, 543, 64 P. 780 (1901). Prohibition is not favored and a court has no authority to issue a writ of prohibition unless (1) a state actor is about to act in excess of its jurisdiction, and (2) the petitioner does not have a plain, speedy, and adequate legal remedy.
Brower, 82 Wn. App. at 57. A court cannot issue a writ of prohibition unless both of these factors are met. Id. at 57-58. A writ of prohibition is the counterpart to a writ of mandamus. RCW 7.16.290.
The trial court denied the writ of prohibition based on its determination that there was no evidence that a state actor attempted to act in excess of authority and that the actions of the City were properly reviewable under LUPA. We agree. The Friends failed to present any evidence that the City was about to act in excess of its jurisdiction. Instead, the Friends complain of actions taken by the City in the past and the City’s nonaction in its refusal to close the park. The relief sought by the Friends is not the type encompassed by a writ of prohibition. We hold the court did not err by denying the application for a writ of prohibition.
Writ of Mandamus. A court may issue a writ of mandamus `to compel the performance of an act which the law especially enjoins as a duty resulting from an office.’ RCW 7.16.160. The writ of mandamus must be issued `where there is not a plain, speedy and adequate remedy in the ordinary course of law.’ RCW 7.16.170. A writ of mandamus is an appropriate response to compel a state official to comply with the law when the claim is clear and there is a duty to act, but mandamus is not proper to compel a discretionary act. In re Pers. Restraint of Dyer, 143 Wn.2d 384, 398, 20 P.3d 907 (2001). The inquiry as to whether a statute describes a duty that a person must perform is a question of law. River Park Square, L.L.C. v. Miggins, 143 Wn.2d 68, 76, 17 P.3d 1178 (2001). The determination as to whether there is a plain, speedy, and adequate remedy in the ordinary course of law is an issue of discretion that will not be disturbed absent a showing that the court’s determination was manifestly unreasonable or based on untenable grounds or untenable reasons. Id.
The trial court denied the Friends’ application for a writ of mandamus based on its conclusion that (1) the Friends had no clear legal right to have the skateboard area closed, (2) no parties to this action were vested with the authority to enforce the city or state code violations alleged by the Friends, and (3) there was an adequate remedy available administratively or at law in that LUPA provided the exclusive means of review. Specifically, the court concluded that the decision to approve the use of Swinyard Park to include a skateboard area constituted a final land use decision reviewable only under LUPA. The court held the Friends had commenced this action after the 21-day time limit for a LUPA petition had lapsed.
First, the trial court properly denied the writ because the Friends have no clear legal right to have the skateboard area closed and the City has no clear duty to close the park. The Friends contend that the use of the skateboard facility is not a use permitted in the land use zone applicable to the property on which the facility is constructed. They request a writ of mandamus requiring `the cessation of use and dismantling’ of the skateboard area. CP at 192. But the City has the discretion to authorize variances of the zoning regulations at issue. See DPMC 18.86.030. Consequently, even if we assume the skateboard area was in violation of the zoning or setback regulations, the Friends have no clear right to demand that the City close the park and the City has no clear legal duty to respond to the alleged zoning violations by closing the park. Second, the trial court properly denied the writ because the Friends failed to name the appropriate parties when filing their application for a writ of mandamus. A writ must be issued against a defendant who has a clear legal duty to perform a nondiscretionary act. River Park Square, 143 Wn.2d at 76-77. The Friends named the City of Deer Park in this action but did not name any City officials. Nowhere in the Friends’ briefs do they make any argument in response to the trial court’s finding that `Roger Krieger is the City official vested with the power to enforce the Deer Park Zoning Code.’ CP at 205, n. 10. And, nowhere do the Friends respond to the trial court’s legal conclusion that: `No parties to this action are vested with the authority under state or local law to enforce either the Deer Park code violation or the state violations alleged by Plaintiff.’ CP at 206, n. 10. We hold the court did not err by denying the application for a writ of mandamus.
Motion to Dismiss Declaratory Judgment Claim.
Standard of Review. In effect, the trial court treated the City’s answer to the Friends’ application for writs of prohibition or mandamus as a motion to dismiss the Friends’ declaratory judgment action and nuisance claims, and the trial court dismissed these claims.
We review for abuse of discretion a refusal to consider a declaratory judgment action. Wash. Fed. of State Employees v. State, 107 Wn. App. 241, 244, 26 P.3d 1003 (2001) (quoting Nollette v. Christianson, 115 Wn.2d 594, 599, 800 P.2d 359 (1990)). A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Declaratory Judgment. Under the Declaratory Judgments Act, chapter 7.24 RCW, courts of record are authorized to `declare rights, status and other legal relations,’ and such declaration may be `either affirmative or negative in form and effect.’
RCW 7.24.010. The Declaratory Judgments Act is liberally interpreted `in order to facilitate its socially desirable objective of providing remedies not previously countenanced by our law.’ Grandmaster Sheng-Yen Lu v. King County, 110 Wn. App. 92, 98, 38 P.3d 1040 (2002). But `a plaintiff is not entitled to relief by way of a declaratory judgment if, otherwise, he has a completely adequate remedy available to him.’ Reeder v. King County, 57 Wn.2d 563, 564, 358 P.2d 810 (1961).
Here, the Friends sought a declaratory judgment that the skateboard area requires a CUP. Additionally, the Friends asked the court to rule that the skateboard area violated the City’s zoning, permitting, and environmental laws. The trial court concluded that the Friends were not entitled to declaratory judgment relief because the actions of the City were reviewable, if at all, under LUPA. Additionally, the trial court ruled that the City’s response to the letters to the mayor constituted a land use decision, which the Friends had failed to appeal within the 21-day time limit for filing a LUPA petition. Accordingly, the trial court held that the Friends could not seek review of that decision under LUPA. With certain specific exceptions, LUPA is `the exclusive means of judicial review of land use decisions.’ RCW 36.70C.030(1). LUPA defines a `land use decision’ as follows:
(1) `Land use decision’ means a final determination by a local jurisdiction’s body or officer with the highest level of authority to make the determination, including those with authority to hear appeals, on:
(a) An application for a project permit or other governmental approval required by law before real property may be improved, developed, modified, sold, transferred, or used, but excluding applications for permits or approvals to use, vacate, or transfer streets, parks, and similar types of public property; excluding applications for legislative approvals such as area-wide rezones and annexations; and excluding applications for business licenses;
(b) An interpretative or declaratory decision regarding the application to a specific property of zoning or other ordinances or rules regulating the improvement, development, modification, maintenance, or use of real property; and
(c) The enforcement by a local jurisdiction of ordinances regulating the improvement, development, modification, maintenance, or use of real property. However, when a local jurisdiction is required by law to enforce the ordinances in a court of limited jurisdiction, a petition may not be brought under this chapter.
RCW 36.70C.020 (emphasis added). LUPA applies to all final land use decisions regardless of whether the decision is quasi-judicial or ministerial. Grandmaster Sheng-Yen Lu, 110 Wn. App. at 101. A local jurisdiction’s interpretation of its ordinances is precisely the kind of action encompassed by LUPA review. Chelan County v. Nykreim, 146 Wn.2d 904, 929, 52 P.3d 1 (2002).
Did the Friends request a land use decision? In the two letters to the mayor on May 10, 2002, the Friends took the position that the skateboard area should be closed because the City did not obtain a CUP. For example, the first letter stated:
If [the] City has obtained a Conditional Use Permit for the Skate Board Park then I would expect to receive a copy of it by next Wednesday.
If you disagree with my position that the Skate Board Park requires a proper Conditional Use Permit please advise and in so doing give me an idea of why you think the City of Deer Park Land Use Code does not require a Conditional Use Permit.
CP at 58-59.
The second letter stated:
Nowhere in the regulations can there be found a provision which allows for the use of the property in the zone for a Skate Board Park — it is not a permitted use, it is not an accessory use and it cannot be allowed as a conditional use.
. . . .
In light of the foregoing and presuming that I am correct in understanding that zone is the Q/QP, please cause the Skate Board Park to be closed immediately and removed or dismantled May 31, 2002.
If you disagree with my position please advise.
CP at 61.
The Friends argue that these letters do not constitute a request for a land use decision, that no land use decision was made and, consequently, LUPA does not apply. Contrary to the Friends’ assertions, these letters constitute a request for an interpretation of the City’s ordinances as contemplated under RCW 36.70C.020(1)(b).
Next, we must examine the process set forth in the City’s ordinances to determine whether this request was properly made and whether the City’s response to this request culminated in a `final determination’ by the City official `with the highest level of authority to make the determination.’ See RCW 36.70C.020(1).
Under DPMC 18.04.030D, the City provides a procedure by which an `interested citizen’ may inquire as to the `general applications’ of local ordinances. Specifically, DPMC 18.04.030D provides that:
Requests for rulings and interpretations as to the meaning, intent, or proper general applications of the ordinance to development and use of land or structures shall be made in written form by any interested citizen or public official. The director of planning shall submit a ruling or interpretation in writing and in a timely fashion to the person submitting the request.
In their letters of April 4, and April 9, 2002, the Friends expressed their belief that a CUP was required for the skateboard area and requested documents, including the CUP, issued for the skateboard area. However, the letters of May 10 constitute requests for a land use decision under DPMC 18.04.030D in that these requests were in written form and were sent to the mayor. The Friends maintain that their letters do not constitute requests under DPMC 18.04.030D because the letters were not sent to the director of planning. This argument is without merit. DPMC 18.04.030D requires that the request be in writing, but there is no requirement that requests for rulings or interpretations must be sent to any particular city official. Did the City issue a ruling or interpretation? Having determined that the Friends requested an interpretation of the application of an ordinance to the use of Swinyard Park, we must next decide whether a ruling or interpretation was made.
DPMC 18.04.030D states that: `The director of planning shall submit a ruling or interpretation in writing and in a timely fashion to the person submitting the request.’ Here, the response was made in writing and sent to the person submitting the request, but the response was made by the mayor, not the director of planning. The City argues that the mayor’s letter of May 13 constitutes a `final decision’ by a local jurisdiction because the letter was written by the City’s top executive after conferring with Mr. Krieger, the director of planning. But this argument is unpersuasive for several reasons.
First, DPMC 18.04.030D requires that the ruling must be submitted, in writing, by the director of planning. Second, LUPA is the exclusive review of final land use decisions made by the local official `with the highest level of authority to make the determination.’ RCW 36.70C.020(1). The mayor may be the City’s top executive, but he has no authority to make a ruling or interpretation under DPMC 18.04.030D. Moreover, it is of no significance that the mayor later submitted a declaration explaining that he had conferred with Mr. Krieger when preparing the letter sent to the Friends on May 13. From the text of the letter, the Friends had no way of knowing that the director of planning had been involved in the letter’s preparation and there is no indication that Mr. Krieger ever submitted a ruling in writing. In other words, the City failed to follow its own procedures for issuing rulings or interpretations under DPMC 18.04.030D. In the context of this case, the City’s failure to follow its own procedures for issuing rulings has implications under LUPA. When presented with a request for a ruling or interpretation, the City effectively declined to follow the municipal code and issue a final `land use decision.’ Presumably then, this matter is reviewable only under LUPA — but only after the Friends obtain a final `land use decision,’ in writing, from the director of planning. The Friends could then appeal the final land use decision within the applicable time limit.
In summary, the trial court did not err by concluding that LUPA prevented the review of the questions concerning the need for a CUP, but the court did err by concluding that there was a final land use decision and that the 21-day time limit for filing a LUPA petition had lapsed. We hold the court did not abuse its discretion by dismissing the declaratory judgment action because the Friends have an adequate remedy under LUPA. Because LUPA is the exclusive remedy for reviewing land use decisions, we hold the court erred by deciding the land use decisions raised by the declaratory action.
Motion to Dismiss Nuisance Claims.
Standard of Review. The Friends contend that the skateboard area is a public and private nuisance. The trial court treated the City’s answer to the Friends’ application for writs as a motion to dismiss and dismissed both nuisance claims.
A trial court’s ruling on a motion to dismiss for failure to state a claim upon which relief can be granted under CR 12(b)(6) is a question of law that we review de novo. Cutler v. Phillips Petroleum Co., 124 Wn.2d 749, 755, 881 P.2d 216 (1994). Courts should dismiss under this rule only when it appears beyond a reasonable doubt that no facts exist that would justify recovery. Id. Courts presume the allegations of the complaint to be true for the purpose of such a motion. Id. If materials outside the pleading are considered, the CR 12(b)(6) motion is treated as a summary judgment motion under CR 56. CR 12(b).
The court in this case did consider materials outside the pleadings. Thus, we review the decision on the basis of CR 56. We may affirm an order granting summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). All facts and reasonable inferences must be considered in the light most favorable to the nonmoving party. Mountain Park Homeowners Ass’n v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994).
Nuisance. A public nuisance is defined as `one which affects equally the rights of an entire community or neighborhood, although the extent of the damage may be unequal.’ RCW 7.48.130. A private nuisance is any nuisance not included in the definition contained in RCW 7.48.130. RCW 7.48.150. An actionable nuisance is defined to include `whatever is injurious to health or indecent or offensive to the senses, or an obstruction to the free use of property, so as to essentially interfere with the comfortable enjoyment of the life and property, is a nuisance and the subject of an action for damages and other and further relief.’ RCW 7.48.010. `Nothing which is done or maintained under the express authority of a statute, can be deemed a nuisance.’
RCW 7.48.160.
The Friends first contend that the skateboard area is a public nuisance per se because the City operates the skateboard area in violation of regulations and prohibiting law. These claims, however, are land use decisions under RCW 36.70C.020 and LUPA is the exclusive avenue for appealing a land use decision. Chelan County v. Nykreim, 146 Wn.2d 904, 917, 52 P.3d 1 (2002). The trial court properly ruled that the Friends cannot bring their public nuisance claim as an original action under chapter 7.48 RCW.
The Friends next argue that the skateboard area is a private nuisance. A person may lawfully conduct a business in the best manner practicable, but the activity may still be actionable as a nuisance if the activity unreasonably interferes with the use and enjoyment of property by others. Tiegs v. Watts, 135 Wn.2d 1, 13, 954 P.2d 877 (1998). In dismissing this claim, the trial court found that: `The public’s use of the skateboard area does not unreasonably annoy, harm, damage, or inconvenience residents in the Swinyard Park neighborhood, and does not constitute an essential interference with the use and enjoyment of life and property.’ CP at 205, n. 11. After reviewing the record, we conclude that there are genuine issues of material fact that the skateboard area unreasonably interferes with the Friends’ use and enjoyment of their property. See Tiegs, 135 Wn.2d at 13. Accordingly, we reverse the trial court’s dismissal of the Friends’ private nuisance claim on summary judgment.
The 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.
BROWN, C.J. and SWEENEY, J., concur.