Scott Lange & Elizabeth Lange, Et Ux v. Clallam County ( 2014 )

FILED
CQuf`i I OF APPEALS
DIVISION 11
21111.1
JUL 1 5 t iJO: i
IN THE COURT OF APPEALS OF THE STATE OF WASHING?
BY\
DIVISION II
SCOTT K. LANGE and ELIZABETH R. No. 44476 -3 - II
LANGE, husband and wife, and Trustees of
the Lange Family Trust,
Appellants,
v.
CLALLAM COUNTY, a municipal
corporation; SHEILA ROARK MILLER,
DIRECTOR OF COMMUNITY
DEVELOPMENT, UNPUBLISHED OPINION
Respondents.
WoxswICK, J. — Scott and Elizabeth Lange ( collectively, Lange) applied for a writ of
mandamus compelling Clallam County officials to investigate their neighbor' s property and
determine whether its structures violated code requirements. After issuing the writ, the superior
court granted the County' s motion to quash the writ and dismissed Lange' s action. Lange
appeals, arguing that the superior court erred by ( 1) quashing the writ and ( 2) failing to award
him attorney fees and costs. Because most of Lange' s allegations challenged land use decisions
reviewable under the Land Use Petition Act,' and the remaining allegation was an insufficient
ground to support the writ, we affirm the superior court' s decision to quash the writ.
1
Chapter 36. 70C RCW.
No. 44476 -3 -II
FACTS
Lange owned property adjacent to property owned by David and Krisanne Cebelak
collectively, Cebelak). Both properties abutted the shoreline of Clallam Bay. In 1997, 2007,
and 2012, Lange challenged building permits issued to Cebelak and also complained to Clallam
County that structures on Cebelak' s property violated code requirements.
In December 1996, the County issued a building permit to Cebelak for the construction of
a single family home with an attached storage building. In May 1997, Lange protested the
permit' s issuance to the Clallam County Department of Community Development (hereinafter
the Department," unless otherwise specified). Lange alleged, inter alia, that the Department had
issued the permits without inspecting the site and that the home was being constructed in
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violation of setback requirements, building codes, and the Shoreline Management Act.
The Department' s director replied, " The site in question has been inspected numerous
times by both the Clallam County Building and Planning Division staff," and that the inspectors
found that the project met all applicable code requirements. Clerk' s Papers ( CP) at 134. The
director further asked Lange to provide any specific information he had to the contrary. Lange
later averred3 that he did not pursue his protest further because, based on the director' s response,
he believed that he could not prevail in a legal challenge. Cebelak' s home and storage building
were constructed in 1997.
In 1998, the Department granted Cebelak a permit exemption allowing him to construct a
bulkhead. Because the bulkhead' s value was less than $2, 500, the Department concluded that
2 Chapter 90. 58 RCW.
3 Lange filed a declaration in opposition to the County' s motion to quash the writ.
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No. 44476 -3 -II
the proposal was exempt from the substantial development permit process under former WAC
173- 27- 040( 2)( a) ( 1997). In addition, the Washington Department of Fish and Wildlife issued a
hydraulic project approval for Cebelak' s proposed bulkhead. The bulkhead was constructed in
1998.
In December 2006, a major storm damaged the Clallam Bay shoreline and exposed
Cebelak' s bulkhead. Lange averred that he then became aware of the bulkhead for the first time.
After the storm, Cebelak sought, and the Department of Fish and Wildlife issued, an
emergency declaration and a hydraulic project approval authorizing repairs to the bulkhead.
Cebelak finished repairing the bulkhead in January 2007.
Also in 2007, Lange filed a six -
point complaint with the Department, requesting that it
investigate Cebelak' s property. Lange claimed that ( 1) Cebelak failed to obtain permits to
construct the storage building; ( 2) Cebelak misrepresented his intended use of the storage
building, which Lange alleged was actually a cabin; ( 3) Cebelak misrepresented the value of the
bulkhead in 1998 to obtain the permit exemption and further constructed the bulkhead in a
location that did not comply with setback requirements; ( 4) Cebelak moved the bulkhead when
repairing it in 2006 to a location where it further encroached on the required setback area; ( 5)
Cebelak intentionally misrepresented his lot' s size when applying for the 1996 permit to
construct his home, and the County improperly granted a variance from setback requirements;
and ( 6) Cebelak violated the terms of a permit exemption relating to construction of the home
because the exemption was available for owner- occupied buildings and Cebelak rented the home
after construction was complete.
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No. 44476 -3 -II
Lange and the Department met to discuss his complaint, and Lange provided supporting
documents. The Department' s staff reviewed the documents and, accompanied by staff from the
Department of Fish and Wildlife, visited Cebelak' s property. The Department began to draft a
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written response to Lange' s complaint, but it did not issue a final determination on its merits.
In 2012, Lange submitted another land use complaint to the Department' s director.
Lange' s complaint alleged that Cebelak' s storage building and bulkhead each violated the
Clallam County Code ( CCC) and other laws. Specifically, Lange alleged that Cebelak' s storage
building ( 1) had been constructed without the issuance of required permits, ( 2) had been
constructed in a location that violated shoreline setback requirements, and ( 3) violated the terms
of Cebelak' s permit because Cebelak rented it to others rather than living in it himself. With
respect to the bulkhead, Lange further alleged that (4) Cebelak constructed the bulkhead in a
location that the County' s 1998 permit exemption had not approved, ( 5) Cebelak improperly
obtained permits to repair the damaged bulkhead in 2007, and ( 6) Cebelak failed to obtain other
permits that should have been required before repairing the bulkhead. The director declined to
investigate or comment on Lange' s complaint because it was the subject of pending litigation
between Lange and Cebelak and because the County inspected Cebelak' s property before issuing
permits.
In November 2012, Lange commenced this action against the County in superior court by
applying for a writ of mandamus. Lange' s application sought a writ compelling the County and
4
Relying on a legal opinion issued by the County' s deputy prosecuting attorney, the Department
concluded that it would not be a shoreline management violation to rent a home constructed
pursuant to permit exemptions. After the Department informed Lange of this determination,
Lange threatened to sue the County, and the parties ceased cooperating.
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No. 44476 -3 -II
the Department' s director " to enforce the [ CCC] by investigating the code complaint [ filed by
Lange in 2012] and provid[ ing] a final written decision within 40 days." CP at 7. Lange also
requested reasonable and statutory costs including attorney' s fees.
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The superior court issued the writ, commanding the County to ( 1) investigate and
enforce as Lange requested or (2) show cause why it should not do so. The County moved to
quash the writ, arguing that mandamus was inappropriate because, inter alia, Lange could have
challenged the permitting decisions in a petition brought under the Land Use Petition Act
LUPA), chapter 36. 70C RCW.
The superior court joined its show cause order and the County' s motion to quash, and
both parties submitted supporting declarations with attached exhibits. After the hearing, the
superior court quashed the writ and dismissed the case " in light of LUPA." CP at 277.
Lange appeals.
ANALYSIS
Lange argues that the superior court erred by dismissing this action. We disagree.
A. Standard ofReview
A trial court' s decision on a motion to quash a writ of mandamus is reviewed as a
decision on a CR 12( c) motion for judgment on the pleadings. Bock v. Bd. ofPilotage Comm 'rs,
91 Wn.2d 94, 97, 586 P. 2d 1173 ( 1978). However, a motion for judgment on the pleadings must
be treated as a motion for summary judgment when " matters outside the pleadings are presented
to and not excluded by the trial court." CR 12( c); P.E. Sys., LLC v. CPI Corp., 176 Wn.2d 198,
206, 289 P. 3d 638 ( 2012). Here both parties presented, and the superior court considered,
5 The superior court issued an alternative writ of mandamus under RCW 7. 16. 180.
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No. 44476 -3 -II
declarations and attached exhibits outside the pleadings. Therefore we review the superior
court' s decision as an order granting summary judgment.
Summary judgment is appropriate when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. We review an order granting summary
judgment de novo, engaging in the same inquiry as the trial court. TracFone Wireless, Inc. v.
Dep 't of Revenue, 170 Wn.2d 273, 280 -81, 242 P. 3d 810 ( 2010). Thus, we consider the record
and draw all reasonable inferences in the light most favorable to the nonmoving party. Schaaf v.
Highfield, 127 Wn.2d 17, 21, 896 P. 2d 665 ( 1995).
B. Writ ofMandamus
Lange primarily argues that the superior court erred by quashing the writ of mandamus.
We affirm the superior court, although in part we do so on alternative grounds.
Mandamus is an extraordinary writ that may be issued " to compel the performance of an
act which the law especially enjoins as a duty resulting from an office." RCW 7. 16. 160. Walker
v. Munro, 124 Wn.2d 402, 407, 879 P. 2d 920 ( 1994). "[ T] he remedy of mandamus contemplates
the necessity of indicating the precise thing to be done." Walker, 124 Wn.2d at 407.
Here, Lange' s application requested a writ compelling the County and the Department' s
director " to enforce the [ CCC] by investigating [ Lange' s] code complaint ... and provid[ ing] a
written final decision within 40 days. CP at 7. In turn, Lange' s code complaint alleged that ( 1)
Cebelak failed to obtain all required permits before constructing the storage building, ( 2) the
County authorized Cebelak to construct the storage building in a location violating shoreline
setback requirements, ( 3) Cebelak violated the terms of his building permits by renting the
storage building to other people, ( 4) Cebelak constructed the bulkhead in a location that the
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No. 44476 -3 - II
County' s 1998 permit exemption had not approved, ( 5) the County improperly issued permits to
Cebelak authorizing repairs to the damaged bulkhead in 2007, and ( 6) Cebelak failed to obtain
other necessary permits before repairing the damaged bulkhead.
1. Mandamus Is Not Available To Review Land Use Decisions
As a threshold issue, the parties dispute whether LUPA' s exclusive remedy provision,
RCW 36. 70C. 030, barred Lange' s application for the writ of mandamus. RCW 36. 70C. 030( 1)
provides that LUPA " shall be the exclusive means of judicial review of land use decisions,
except that [LUPA] does not app ly to ... ( b) [ j]udicial review ofapplications for a writ of
mandamus or prohibition." ( Emphasis added.) Thus LUPA' s exclusive remedy provision did
not bar Lange' s application for the writ of mandamus. Stafne v. Snohomish County, 156 Wn.
App. 667, 687, 234 P. 3d 225 ( 2010), review granted on other issues and aff'd, 174 Wn.2d 242012).
However, the method for obtaining the writs of certiorari, mandamus, and prohibition
does not apply to state agency action reviewable under chapter 34. 05 RCW or to land use
decisions of local jurisdictions reviewable under [ LUPA]." RCW 7. 16. 360 ( emphasis added);
see Evergreen Wash. Healthcare Frontier LLC v. Dep' t of Soc. & Health Servs., 171 Wn. App.
431, 452, 287 P. 3d 40 ( 2012) ( considering state agency action), review denied, 176 Wn.2d 10282013). Therefore Lange' s application for the writ of mandamus had to be denied to the extent it
challenged land use decisions reviewable under LUPA. See Evergreen, 171 Wn. App. at 452.
As mentioned above, Lange' s code complaint made six allegations. Five of these
allegations challenged the County' s land use decisions related to either construction of the
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No. 44476 -3 - II
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storage building in 1997 or repairs to the bulkhead in 2007. First, Lange' s code complaint
alleged that, in issuing the building permit for Cebelak' s storage building, the County ( 1)
incorrectly exempted the storage building from certain requirements and ( 2) incorrectly
determined that the storage building' s location complied with shoreline setback requirements.
Second, Lange' s code complaint further alleged that the County erroneously permitted repairs to
Cebelak' s bulkhead because ( 3) Cebelak failed to originally construct the bulkhead in the
location that the County had approved in 1998, ( 4) the County improperly issued permits
authorizing Cebelak to repair the damaged bulkhead in 2007, and ( 5) Cebelak failed to obtain
other necessary permits before repairing the damaged bulkhead. Because Lange' s mandamus
application challenged these five land use decisions, we hold that mandamus was unavailable
under RCW 7. 16. 360.
But Lange' s code complaint also alleged that Cebelak improperly used his storage
building as a rental property after obtaining building permits premised on his representation that
he would personally use it. This allegation does not challenge a land use decision. See RCW
6 RCW 36.70C. 020( 2) provides in part:
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 ... ;
b) An interpretative or declaratory decision regarding the application to a
specific property of zoning or other or rules regulating the
ordinances
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.
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No. 44476 -3 - II
36. 70C. 020( 2); see also Samuel' s Furniture, Inc. v. Dep' t ofEcology, 147 Wn.2d 440, 456, 54
P. 3d 1194 ( 2002) ( LUPA does not bar an action alleging that a person violated the conditions of
a permit). Therefore we review Lange' s application for a writ of mandamus requiring the
County to investigate whether Cebelak' s use of the storage building violated the terms of his
building permit.
2. Mandamus Is Not Appropriate Because the County Lacked a Clear Duty To Act
To support an application for a writ of mandamus, the applicant must show ( 1) the
official subject to the writ has a clear duty to act; ( 2) the applicant has no other plain, speedy, and
adequate remedy in the ordinary course of law; and ( 3) the applicant is beneficially interested in
performance of the official duty. Eugster v. City ofSpokane, 118 Wn. App. 383, 402, 76 P. 3d
741 ( 2003); see RCW 7. 16. 160, . 170. Because we decide as a matter of law that the County had
no clear duty to act, we do not reach the other elements.
Lange asserts that the County, through the Department' s director, had a clear duty to act
by investigating his allegation that Cebelak violated the terms of his permit and by making a
final enforcement decision.' We disagree.
An applicant for a writ of mandamus must show that the party subject to the writ has a
clear duty to act, and this duty must be ministerial rather than discretionary. Seattle Times Co. v.
Serko, 170 Wn.2d 581, 588 -89, 243 P. 3d 919 ( 2010). The writ of mandamus will not issue to
compel the performance of a discretionary act in the absence of arbitrary and capricious
7 Lange claims that the County did not argue below that there was no clear duty to act on the
code complaint. But Lange is mistaken. The County' s motion to quash argued that any duty to
investigate .
was merely discretionary. We note that the County' s response brief does not make
this argument. Regardless, we may affirm the judgment below on any ground supported by the
record. RAP 2. 5( a).
No. 44476 -3 - II
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conduct. Walker, 124 Wn.2d at 410; State ex rel. Pac. Bridge Co. v. Wash. Toll Bridge Auth., 8
Wn.2d 337, 342 -43, 112 P. 2d 135 ( 1941). Prosecuting violations of the law is generally
recognized as a " highly discretionary" act. Walker, 124 Wn.2d at 411.
Lange claims that the County had a mandatory duty to investigate the allegation in his
land use complaint under provisions of the Clallam County Home Rule Charter and under
chapter' 20. 08 CCC. We disagree.
Whether an ordinance creates a clear duty to act is a question of law reviewed de novo.
See River Park Square, LLC v. Miggins, 143 Wn.2d 68, 76, 17 P. 3d 1178 ( 2001). The rules of
statutory interpretation apply equally to ordinances. World Wide Video, Inc. v. City of Tukwila,
117 Wn.2d 382, 392, 816 P. 2d 18 ( 1991). Thus when construing an ordinance, our fundamental
objective is to carry out the legislative body' s intent. Dep' t of Ecology v. Campbell & Gwinn,
LLC, 146 Wn.2d 1, 9, 43 P. 3d 4 ( 2002). When an ordinance has a plain meaning, we give the
plain meaning effect. Campbell & Gwinn, 146 Wn.2d at 9. To determine the plain meaning of
an ordinance, we look to all that is written in the ordinance and in related ordinances that
discloses the legislative intent of the provision in question. Campbell & Gwinn, 146 Wn.2d at
11. Presumptively, use of the word " shall" denotes an imperative and creates a mandatory duty.
Clark County Sheriff v. Dep' t of Soc. & Health Servs., 95 Wn.2d 445, 448, 626 P. 2d 6 ( 1981).
8 Lange appears to claim that the director' s refusal to investigate his 2012 complaint was
arbitrary and capricious. We disagree. Arbitrary and capricious action means action that is
willful and unreasoning, taken in disregard of the facts and circumstances. Freeman v. State,
178 Wn.2d 387, 402, 309 P. 3d 437 ( 2013). Here, the director declined to investigate Lange' s
2012 complaint because ( 1) the issues it presented were already being litigated in Lange' s
lawsuit against Cebelak and ( 2) the County inspected Cebelak' s property when considering his
applications for permits. Because the director' s refusal considered the facts and circumstances, it
was not arbitrary and capricious.
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a. The County' s Home Rule Charter
Lange first asserts that section 4.25 of the Clallam County Home Rule Charter imposes a
clear duty to enforce code violations by investigating all complaints. Lange is mistaken.
Section 4. 25 provides in part:
The Director of the Department of Community Development shall administer,
enforce and advise the County Commissioners on all laws, except health, with
respect to the environment, natural resources, and land and shoreline
development, including, but not limited to, zoning, land divisions, environmental
policy, building and fire codes, forest management, mining, agriculture,
watershed planning, and floodplains.
Clallam County Home Rule Charter § 4. 25.
When read together with a related section, this provision clearly vests the Department' s
director with powers and does not create a clear duty to act. The related section provides in part:
The executive power of the county shall be vested in the Board of Commissioners except those
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powers assigned to other elected officials and other elected boards and commissions by law. "
Clallam County Home Rule Charter § 2. 30. 20. Thus section 4. 25 vests the Department' s
director with power that otherwise would remain vested in the County' s board of commissioners.
Contrary to Lange' s assertion, the plain meaning of section 4.25 does not require the director to
investigate every alleged violation of any law related to the environment, natural resources, and
development.
b. CCC 20. 08. 060
Lange additionally claims that CCC 20. 08. 060 imposes a clear duty to enforce code
violations by investigating his complaint. Again we disagree.
9
The director of the Department of Community Development is an elected official. Clallam
County Home Rule Charter § 4. 10.
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CCC 20. 08. 060 states:
The Director shall determine, based on information derived from such sources as
field observations, the statements of witnesses, relevant documents, and available
data systems, following elements have been established. All elements must
if the
be established to determine that a civil code violation has occurred or is occurring.
1) The Director shall identify the person responsible for code compliance
as defined in this title.
2)
The Director shall identify the specific provision of the relevant
ordinance, permit condition, notice and order, or stop work order that has been or
is being violated.
3) The Director shall determine whether there are reasonable grounds to
believe that the acts or omissions that constitute the violation did occur or are
occurring. Such grounds may be established either by personal observation or by
reliable evidence from witnesses.
Lange asserts that CCC 20. 08. 060 requires the director to investigate each complaint of
code violations because " the word ` shall' is repeated at least four times." Br. of Appellant at 19.
But we look to all that is written in the ordinance and in related ordinances that discloses
legislative intent. Campbell & Gwinn, 146 Wn.2d at 11. Read as a whole, CCC 20. 08. 060
requires the director to make certain determinations ifshe finds a civil code violation, but it does
not require the director to investigate a complaint in the first place.
Further, Lange ignores two other provisions of chapter 20. 08 CCC that disclose a
legislative intent not to require the director to investigate. First, in establishing guidelines and
enforcement priorities for the Department' s director, CCC 20. 08. 050 explicitly acknowledges the
existence of "times when not all potential code violations can be investigated due to lack of
resources or otherwise." Thus CCC 20. 08. 050 implies that the director does not have a
mandatory duty to investigate every complaint. Second, CCC 20. 08. 030( 6) states,
The provisions of this title detailing departmental administration of code
compliance procedures are intended only for the purpose of providing guidance to
Clallam County employees and are not to be construed as creating a basis for
appeal or a defense of any kind to an alleged violation.
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Thus chapter 20. 08 CCC provides guidance to the County without creating a clear duty to
investigate every complaint.
Moreover, nothing in chapter 20. 08 CCC imposes a clear duty to take both of the two
precise actions specified in Lange' s application for the writ: investigation of Lange' s code
complaint and issuance of a " written final decision within 40 days." CP at 7. In light of all the
legislative body has said in chapter 20. 08 CCC., we hold that the County' s ordinances do not
impose on the Department' s director a clear duty to act by investigating or rendering a final
decision on each code complaint received. Therefore the superior court did not err by quashing
its writ of mandamus and dismissing this case.
C. Attorney Fees
Lange further assigns error to the superior court' s dismissal of his " claim for attorney' s
fees. " 10 Br. of Appellant at 2. Because the superior court properly dismissed Lange' s
application for the writ of mandamus, the superior court did not err by refusing to award him
reasonable or statutory fees.
Lange further claims that he is entitled to an attorney fee award under RCW 90. 58. 230.
This claim lacks merit.
RCW 90. 58. 230 creates a civil cause of action for violations of the Shoreline
Management Act and authorizes a trial court, in its discretion, to award attorney fees and costs to
the prevailing party. But Lange did not bring a cause of action under RCW 90. 58. 230. His
10 Lange' s application for a writ of mandamus also requested an award of (1) reasonable costs
law in the alternative, ( 2)
including reasonable attorney fees " pursuant to and equity" or,
statutory costs and attorney fees. CP at 7.
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petition stated allegations supporting only his application for the writ of mandamus, and it did
not allege that the County violated the Shoreline Management Act. The superior court did not
err by refusing to award attorney fees to Lange.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
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