Friends of North Spokane County Parks v. Spokane County ( 2014 )

FILED
OCTOBER 21,2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
FRIENDS OF NORTH SPOKANE )
COUNTY PARKS, ) No. 32056-1-111
)
Appellant, )
)
v. )
)
SPOKANE COUNTY; FRED MEYER )
STORES, INC.; and, STAR SAYLOR ) PUBLISHED OPINION
LLC, )
)
Respondents. )
SIDDOWAY, C.J. After the Board of County Commissioners of Spokane County
(Board) amended its acceptance of dedicated parkland to pennit construction of a road
serving an adjoining residential development, Friends of North Spokane County Parks, an
association of county taxpayers and itself a county taxpayer, challenged the legality of the
Board's action. The superior court dismissed Friends' action on standing and substantive
grounds, for failure to state a claim on which relief could be granted. Friends appeals the
dismissal and the superior court's denial of its motion to disqualify the Spokane County
prosecutor from representing an affiliate of the grantor of the parkland.
In concluding that Friends did not have standing, the trial court relied on a
decision involving distinguishable facts, whose overly-narrow characterization of
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taxpayer standing we reject. Friends adequately alleged taxpayer standing under
controlling Washington case law. While the trial court properly denied Friends'
disqualification motion and correctly dismissed claims alleging breach of trust and an
unconstitutional gift of public property, Friends' complaint adequately stated a claim for
breach by the county of terms of a 200 I dedication of the parkland. We affirm in part,
reverse in part, and remand.
FACTS AND PROCEDURAL BACKGROUND
In 200 I, in connection with the development by Roundup Company of real
property near the corner of U.S. Highway 395 and Hastings Road for construction of a
Fred Meyer store, Roundup offered 3.99 acres of undeveloped land directly south of the
store site to Spokane County for use as a park. The county was receptive, So in August
2001 the Wilmington Trust Company, which held title to the 3.99 acres as security,
conveyed the land to the county. The deed required that the land be held "only as a
natural, community, or regional park" and prohibited "vehicular ingress or egress from
the property" except from Standard Drive. Clerk's Papers (CP) at 62. The county
accepted the donation by resolution, subject to these conditions. After accepting and
receiving the property, the county maintained what came to be known as "Freddy Park"
as a "natural, unimproved park." CP at 70.
In 2007, Star Saylor Investments LLC, a private real estate developer that owns
property located directly south of Freddy Park, applied to the county for a preliminary
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plat. A county hearing examiner approved the application subject to conditions, one of
which was that before the final platting of the 34th lot, "'the applicant shall secure and
construct a second ingress/egress roadway to serve the proposed development.'" CP at 5.
The condition stated that "'[t]he proposed second access must be dedicated through the
park land owned by Spokane County north of the site. '" Id. at 5-6.
The county's Board of County Commissioners favored allowing construction of
the second ingress/egress roadway through Freddy Park. Out of concern that its authority
to approve construction of a road might be questioned in light of the 2001 deed and
restrictions, the county asked that Roundup and its affiliates Fred Meyer Inc. and Fred
Meyer Stores Inc., whom the county referred to collectively as "the Fred Meyer Parties,"
execute an amendment to the 2001 deed allowing the establishment and construction of a
public road. The Fred Meyer Parties agreed, but only if the county would represent and
defend them in the event of litigation resulting from the amendment. The county agreed
that it would. The county and the Fred Meyer Parties then executed an amendment to the
restrictions imposed by the 2001 conveyance to permit construction ofa road '''as
depicted in the attached Exhibit "C"'" to their amendment. CP at 94. Exhibit C depicted
the road as follows:
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i
I
\..----'---­
~ r--­
CP at 110.
In 2013, Friends of North Spokane County Parks, a nonprofit corporation, sued
Spokane County, Fred Meyer Stores Inc. (Fred Meyer), and Star Saylor. It sought a
declaratory judgment that the county could not approve construction of a road through
Freddy Park, and to enjoin construction. It asserted standing based on the fact that it and
its members were Spokane County taxpayers; that its members lived near, and were
interested in protecting and preserving the park; and that its request that the state's
attorney general take action to prevent the construction had been declined.
Friends' complaint contended that the county commissioners' actions amending
the resolution and approving the road were illegal in light of the original deed
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restrictions, which it alleged the county had no authority to change; that the county had
no authority to renege on alleged trust duties; that the amendment could not be effective
because, according to records of the county, the original grantor, Wilmington Trust, no
longer existed as an entity; and that for the county to provide Star Saylor with a road
through Freddy Park would constitute a gift of public property or funds in violation of
article VIII, section 7 ofthe Washington Constitution.
Star Saylor soon moved the trial court to dismiss the complaint pursuant to
CR 12(b)(6) for failure to state a claim on which relief could be granted. After the county
and Fred Meyer both appeared through the Spokane County Prosecuting Attorney to join
in the motion, Friends moved to disqualify the prosecutor from representing Fred Meyer,
alleging a conflict of interest.
The trial court denied Friends' motion to disqualify the county prosecutor and
granted Star Saylor's motion to dismiss Friends' complaint. In dismissing the complaint,
the court ruled:
1. Friends has not alleged and can not allege that it is: (a) a grantee
or grantor; or (b) a successor to a grantee or grantor with respect to the
2001 deed between Wilmington Trust Company and Spokane County.
2. Friends has not alleged and can not allege facts sufficient to
confer taxpayer standing because it has not alleged and can not allege a
taxpayer cause of action, nor that Friends pays the type of taxes "funding"
the project that is the subject matter of this action.
3. Accordingly, Friends does not have standing to pursue Counts I­
S, as alleged in the Amended Complaint.
4. Further, Friends has not alleged and can not allege facts sufficient
to pursue a claim under Article VIII, section 7 of the Washington State
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Constitution (Count 6 of the Amended Complaint), because there has been
no transfer or public property and there is no donative intent.
CP at 213-14. Friends timely appealed.
ANALYSIS
Friends assigns error on appeal to the trial court's orders dismissing its complaint
under CR 12(b)(6) and denying its motion to disqualifY the county prosecutor from
representing Fred Meyer. It argues (1) that it has taxpayer standing; (2) that "[u]sing
Freddy Park for a roadway would violate the terms of the deed under which the County
accepted Freddy Park, which specifically limits the uses of the park"; (3) to use Freddy
Park "for a roadway for a private developer ... [or] for any other purpose ... would be a
violation of Art. VIII, Section 7"; and (4) the amendment document was "void because
the Grantor did not have any interest in the property at the time." Br. of Appellant at 8.
It argues that the county prosecutor should have been disqualified on account of a
nonconsentable conflict of interest.
We address the issues in tum.
1. Taxpayer Standing
"Standing is a 'party's right to make a legal claim or seek judicial enforcement of
a duty or right.'" State v. Link, 136 Wash. App. 685, 692, 150 P.3d 610 (2007) (quoting
BLACK'S LAW DICTIONARY 1442 (8th ed. 2004». "It is the responsibility of the
complainant clearly to allege facts demonstrating that he is a proper party to invoke
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judicial resolution of the dispute and the exercise of the court's remedial powers." Warth
v. Seldin, 422 U.S. 490, 518, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975).
Friends alleged in support of its standing that
7. The membership of Friends consists of state of Washington and
Spokane County taxpayers who live near, and are interested in,
protecting and preserving Freddy Park.
8. Friends, in its own right, is also a Washington taxpayer to the state
and to Spokane County as the result of payment of Washington and
Spokane County sales taxes.
9. Plaintiff has made a request of Attorney General of Washington to
take the action sought in this case. The essence of the letter is this:
By this letter Friends requests that you take action to
prevent Spokane County from violation of law
regarding use of Freddy Park for a secondary access
road for the benefit of a real estate developer.
10. By letter dated January 17,2013, the Washington Attorney General,
by Jeffrey T. Even, Deputy Solicitor General, declined to take action
on Plaintiffs request.
CP at 19-20.
The trial court's reasons for concluding that Friends lacked standing were, again,
that it was not a party or a successor in interest to the 2001 deed between Wilmington
Trust Company and the county, and it had not and could not allege facts establishing
taxpayer standing. Friends concedes it is not a party to the deed. At issue is only
whether its complaint supports its taxpayer standing. We review questions of standing de
novo. Link, 136 Wash. App. at 692.
Although the standing doctrine generally "prohibits a litigant who is not adversely
affected by a public act or statute from asserting the legal rights of another," Washington
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courts have long recognized the right of an individual or entity "to challenge
governmental acts based solely upon the litigant's status as a taxpayer." Greater Harbor
2000 v. City o/Seattle, 132 Wash. 2d 267, 281,937 P.2d 1082 (1997); accord State ex reI.
j
Boyles v. Whatcom County Superior Court, 103 Wash. 2d 610, 614, 694 P.2d 27 (1985);
I
Wash. Pub. Trust Advocates ex rei. City 0/ Spokane v. City 0/ Spokane, 117 Wash. App.
178, 182,69 P.3d 351 (2003); Robinson v. City a/Seattle, 102 Wn. App. 795,804-05, 10
P.3d 452 (2000). I
Washington courts have held that municipal taxpayers have standing to challenge
not only the disposition of municipal funds, but also municipal property. In Miller v. City
o/Pasco, 50 Wn.2d 229,310 P.2d 863 (1957), for example, the court held that a taxpayer
could sue, seeking a declaratory judgment as to the constitutionality of a statute
authorizing the city to lease its property for parking lot purposes and to enjoin the city
from leasing or disposing of the property. In Donald v. City a/Vancouver, 43 Wash. App.
880, 719 P .2d 966 (1986), the court held that the plaintiff lacked standing to challenge the
1 An exception is cases involving a reduction of taxes, in which courts have been
reluctant to grant taxpayer standing. Fed. Way Sch. Dist. No. 210 v. State, 167 Wash. 2d
514, 529,219 P.3d 941 (2009) ("While taxpayers may have standing to protest high taxes
or improper expenditures, this court has said it is doubtful there is taxpayer standing to
protest lower taxes or limits on taxation."); Walker v. Munro, 124 Wn.2d 402,419-20,
879 P.2d 920 (1994) ("Although a taxpayer need not allege a personal stake in the matter,
but may bring a claim on behalf of all taxpayers, it is more questionable whether taxpayer
standing is appropriate to protest legislation which, by the Petitioners' own claims, will
decrease state expenditures and make the raising of taxes more difficult." (Citation
omitted.)).
8
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1 city's failure to comply with a deed condition requiring use of donated property as a park,
I but only because the grantor imposed conditions subsequent that only the grantor, not the
public, could enforce: the grantor did not dedicate the property to public use. The court
recognized that had the grantor's conveyance been a dedication, then the plaintiff, as a
resident "and, presumably, a taxpayer, could dispute the City's action, because taxpayers
of a local government can hold the governmental entity to dedicated uses." Id. at 886.
Star Saylor nonetheless relies on Dick Enterprises, Inc. v. King County, 83 Wn.
App. 566, 572-73, 922 P .2d 184 (1996), for the proposition that "[i]n order to bring a
taxpayer suit ... [a]mong other things, the plaintiff must show that it pays the type of
taxes funding the project [that is the subject matter of the action]." It persuaded the trial
court that because the ingress/egress road would be constructed by Star Saylor, there was
no public funding to which Friends' taxes would be applied.
Dick Enterprises was a challenge to an award of a public works contract by a
disappointed bidder, Dick/Cree Joint Venture. Dick/Cree-the second lowest bidder for
a county contract---contended that the lowest bid was nonresponsive to terms of the
county's solicitation of bids. It did not commence suit until after the contract between the
county and the successful bidder had been signed. The trial court rejected Dick/Cree's
bidder standing to challenge performance of the contract based on the primary policy of
competitive bidding statutes to protect the public purse, with "[t]he bidder's interest in a
fair forum [being] secondary." Id. at 569. Reasoning that "courts may refuse to
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recognize a cause of action where the lawsuit would work against the purposes of the
I
I
underlying statute," it held that "[p]rivate suits are motivated by the bidder's desire to
rebid and improve its chances to obtain an award," and that "[t]he best way to ensure that
lawsuits are brought in the public interest is to restrict standing to those whose rights are
at stake-the taxpayers." ld at 570.
1 The court's problematic statement about taxpayer standing was made later in its
decision, where it summarily rejected Dick/Cree's alternative argument that even if
public policy prevented it from suing as an unsuccessful bidder, it had adequately pleaded
a taxpayer's suit. The court pointed out that Dick/Cree had not shown that it requested
action by the state's attorney general before bringing suit and that "[a]mong other things,
the plaintiff must show that it pays the type of taxes funding the project." ld. at 573. For
the quoted proposition, it cited as authority only 18 Eugene McQuillin, The Law of
Municipal Corporations § 52.12 (3d ed. rev. vol. 1993). Consistent with Dick
Enterprises, the cited section of the 1993 McQuillin treatise states that taxpayer standing
requires that a taxpayer "be a contributor to the particular fund from which public monies
are or will be expended"-but the only authority it cites for the proposition is a 1989
decision of the Supreme Court of Hawaii. 18 MCQUILLIN, supra, § 52.12, at 20,23 n.14
(citing Haw. 's Thousand Friends v. Anderson, 70 Haw. 276, 768 P.2d 1293 (1989».
No other Washington decision requires,as a condition of taxpayer standing that the
plaintiff trace the source of funding for a challenged expenditure to the type of taxes he or
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she pays. And states vary in the nexus they require between a plaintiffs status as a
taxpayer and the subject matter of his or her suit. A recent law review article surveying
the permissive taxpayer standing doctrines in place in most states (as contrasted with
restrictive standing rules applied in federal court) discusses different nexus requirements.
It identifies only Arkansas, Iowa, Maine, and Minnesota as examples of those states that
limit standing to challenge a state expenditure involving a specific fund to a taxpayer who
has paid into that fund. Joshua O. Urquhart, Disfavored Constitution, Passive Virtues?
Linking State Constitutional Fiscal Limitations and Permissive Taxpayer Standing
Doctrines, 81 FORDHAML. REv. 1263, 1279 nn.108 & 119 (2012). It characterizes other
states as requiring that the plaintiff be challenging government action that "theoretically
affects his or her tax burden" or "that has the potential to affect his or her tax burden,
even if only in a minute way." Id at 1278-79,1281. It characterizes "a handful of
states" as "allow[ing] taxpayers to challenge virtually any government conduct,
regardless of how it affects state taxpayer dollars," observing that "[t]axpayer actions in
these jurisdictions are little more than citizen lawsuits with the extra requirement that the
plaintiff has paid taxes." Id at 1281-82.
Review of Washington cases convinces us that Dick Enterprises' reliance on
McQuillin to require that a taxpayer plaintiff paid the tax that funds a challenged
government action was inconsistent with controlling Washington case law. This becomes
clear from review of a long line of decisions distinguishing attempted taxpayer challenges
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to allegedly illegal government actions from challenges based on other objections not
involving illegality.
A litigant seeking to challenge a discretionary governmental act~ as opposed to an
allegedly unlawful act~ must show a special injury. In those cases, the plaintiff taxpayer
"must show that he or she has a unique right or interest that is being violated, in a manner
special and different from the rights of other taxpayers." Am. Legion Post No. 32 v. City
of Walla Walla, 116 Wn.2d 1,7,802 P.2d 784 (1991); Kightlinger v. Pub. Vtil. Dist. No.
1 ofClark County, 119 Wash. App. 501, 81 P.3d 876 (2003), review granted and case
dismissed, 152 Wash. 2d 1001 (2004), rev'd on other grounds by Okeson v. City ofSeattle,
159 Wash. 2d 436, 452 n.5, 150 P.3d 556 (2007); see, e.g., In re Petition ofCity of
Bellingham, 52 Wn.2d 497,499,326 P.2d 741 (1958) ("The mere fact that a resident
taxpayer and citizen disagrees with a discretionary decision of the city council provides
no basis for a suit challenging the validity of the council's action.").
When it comes to taxpayer plaintiffs challenging the legality of a governmental
act~ however, Washington courts have repeatedly held that no special injury need be
shown. And the reasoning of those decisions reveals an appreciation of the role that
taxpayer suits play in correcting government transgressions and that no nexus is required
between the type oftaxes paid by the taxpayer plaintiff and the challenged act.
In Barnett v. Lincoln, 162 Wash. 613, 299 P. 392 (1931), the port of Seattle,
accused of violating state law by failing to require its lessee to post a performance bond,
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argued that it could not be restrained at the instance of a taxpayer because there was no
showing that its omission would result in special damage to the taxpayer or general
damage to the taxpaying public. Rejecting the port's argument, the court observed that
"[ c]ourts generally hold that, if the illegal acts of a municipal corporation are such as to
increase taxes or violate public rights, any taxpayer may bring suit for injunction, and it
is not necessary for him to show special pecuniary damage to himself, general damage to
the taxpaying public being held sufficient." Id. at 622 (citing 4 JOHN F. DILLON,
COMMENTARIES ON THE LAW OF MUNICIPAL CORPORATIONS §§ 1579-1587 (5th ed.
1911».
In 1954, State ex rei. Lemon v. Langlie, 45 Wash. 2d 82, 88,273 P.2d 464 (1954)
rejected the argument that a private citizen or taxpayer could not maintain an action
against state officers on a matter of public concern '''except upon a showing of some
special interest or damage different than that suffered by the public at large.'"
Significantly, it did so after surveying 10 prior decisions that the respondents argued
required a taxpayer plaintiff to show a direct pecuniary injury and observing that the
same requirement of personal pecuniary effect had been rejected 7 years earlier in Reiter
v. Wallgren, 28 Wash. 2d 872, 184 P.2d 571 (1947). It quoted Reiter as stating, '''We never
have held that, in a proper case where the attorney general refused to act to protect the
public interest, a taxpayer could not do so.'" Langlie, 45 Wash. 2d at 88 (quoting Reiter, 28
Wash. 2d at 876).
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A decade later, the court in Fransen v. State Board ofNatural Resources, 66
Wn.2d 672,676,404 P.2d 432 (1965) recognized the right of taxpayers to sue to enjoin
the Board of Natural Resources from selling forest lands to a city, even though the
taxpayer plaintiffs were "not persons whose property rights or interests will be affected
by the sale of the lands," but merely "taxpayers, whose interest in the subject matter of
the action is no different from that of other taxpayers."
Relying on Fransen, the court in Calvary Bible Presbyterian Church ofSeattle v.
Board ofRegents of University of Washington, 72 Wn.2d 912,917,436 P.2d 189 (1967)
granted standing to church ministers, but denied standing to the churches themselves,
based on the requirement that "plaintiff must at least be a taxpayer." And a taxpayer had
standing in Boyles, 103 Wash. 2d at 611 to enjoin county officials from assigning prisoners
to a work release program that mandated religious activities. Since the plaintiff "sought
and [had] been denied enforcement of her complaint by the Attorney General" the court
found standing based solely "on the basis of taxpayer status." Id. at 615. The court
emphasized that "taxpayer standing has been given freely in the interest of providing a
judicial forum when this state's citizens contest the legality of official acts of their
government." Id. at 614.
The rationale for requiring only taxpayer status and an unsuccessful demand that
the attorney general commence action, gleaned from almost a century's worth of
Washington case law, is that all taxpayers are presumed harmed where a government
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entity acts unlawfully. In Barnett, 162 Wash. 2d at 623, the court reasoned that where a city
"enter [s] into an illegal or ultra vires contract, and ignores the statutory safeguards ... , it
is a fair presumption that every taxpayer will be injured in some degree by such illegal
act." This court observed in Eugster v. City ofSpokane, 139 Wash. App. 21, 28, 156 P.3d
912 (2007) that while an individual taxpayer must generally show special injury to sue a
municipality, "every taxpayer is presumed injured if the city acts illegally." In Mincks v.
City ofEverett, 4 Wash. App. 68, 73,480 P.2d 230 (1971) the court held that the taxpayer
plaintiff had standing to challenge the legality of a contract given that "every taxpayer
will be fairly presumed to be injured when a municipal corporation undertakes to enter an
illegal contract."
The Washington Supreme Court's most recent pronouncement on the issue of
taxpayer standing is its split decision in Greater Harbor. The justices' reasoning, while
divided as to other matters, reveals broad support for recognizing taxpayer standing to
challenge illegal government acts. At issue was whether Greater Harbor, a private
interest group consisting of a Washington nonprofit corporation and individual taxpayers,
had standing to challenge the city's decision to grant preliminary approval of a petition
by the port of Seattle to vacate several acres of public streets. Greater Harbor, 132
Wn.2d at 269,271.
The lead opinion, signed by two justices, ruled that the plaintiffs lacked standing
because even though they were taxpayers, they were not abutting property owners. Id. at
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284. It cited Boyles for the principle that "taxpayer standing has been given freely in the
interest of providing a judicial forum for citizens to contest the legality of official acts of
their government," but characterized Greater Harbor as having "[a]t most ... merely
disagree[d]" with the decision to vacate based on its interpretation of the city's code. Id.
at 281-82. Three justices concurred in the result, but on ripeness grounds, implicitly
rejecting the conclusion of the two-member lead opinion that the plaintiffs lacked
standing. Id. at 285 (Johnson, J., concurring). Another two justices agreed dismissal was
appropriate because there had been no violation of the city's code, but explicitly
disagreed that the plaintiffs lacked standing, emphasizing that "[t]axpayers clearly should
have standing to complain about the legality of the City's governmental act." Id. at 287
(Madsen, J., concurrence/dissent). Finally, two justices dissented on the basis that
taxpayer standing was improperly denied, and that the city had violated its ordinance. Id.
at 290 (Sanders, 1., dissenting).
Aside from Dick Enterprises, the only other authority Star Saylor cites in support
of its contention that Friends must allege that its taxes will fund some aspect of the
challenged roadway are one concurrence and one dissent by members of the Washington
Supreme Court, both of which quote Dick Enterprises. See City ofSeattle v. McKenna,
172 Wash. 2d 551, 565, 259 P.3d 1087 (2011) (Alexander, 1., concurring); Greater Harbor,
132 Wash. 2d at 299 (Sanders, 1., dissenting). But the statement quoted by both justices is,
for present purposes, a neutral one: that a taxpayer's complaint must allege both a
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taxpayer's cause of action and facts supporting taxpayer status. Star Saylor urges us to
view the statement as weighing in its favor, arguing that "[a] taxpayer cause of action is a
cause of action in which there is an alleged burden on taxpayers associated with the
government action." Br. ofResp't Star Saylor at 9. But Dick Enterprises does not define
"taxpayer's cause of action" that way, and neither Justice Alexander nor Justice Sanders
appear to share Star Saylor's understanding of "taxpayer's cause of action."
Substantively, neither Justice Alexander's concurrence in McKenna nor Justice Sanders'
dissent in Greater Harbor support Star Saylor's position on standing.
Viewed as a whole, Washington cases recognize a plaintiffs standing to challenge
the legality of governmental action based solely upon the plaintiffs status as a taxpayer
and his or her prior demand on the attorney general. Friends' complaint alleged the
required prior demand and challenges the legality of the county's reliance on the 2012
amendment to violate restrictive covenants contained in what it contends was a 2001
dedication of a public park use. The trial court erred in dismissing Friends' complaint for
lack of standing to the extent that it alleged illegal action. 2
2 Star Saylor devoted a portion of its brief to argument that we should affirm the
trial court because Friends failed to assign error to any of the court's findings of fact,
which it contends is required by RAP 10.3(g). A motion to dismiss a complaint pursuant
to CR 12(b)(6) does not call upon the trial court to determine issues of fact and we review
its decision de novo. Findings of fact and conclusions of law are therefore superfluous.
Implicitly, the requirement of RAP 10.3(g) applies only when a trial court's findings are
appropriately entered and necessary to our review.
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II. Deed Restrictions
Turning to the substantive sufficiency of Friends' complaint, we first state the
standard of review. "A CR 12(b)(6) motion questions only the legal sufficiency of the
allegations in a pleading." Brown v. MacPherson's, Inc., 86 Wn.2d 293,298 n.2, 545
P.2d 13 (1975). It cannot be granted unless "it appears beyond a reasonable doubt that no
facts exist that would justifY recovery." Cutler v. Phillips Petroleum Co., 124 Wash. 2d
749, 755, 881 P.2d 216 (1994). The court "accept[s] as true the allegations in a plaintiffs
complaint and any reasonable inferences therein." Reid v. Pierce County, 136 Wn.2d
195,201,961 P.2d 333 (1998).
Documents whose contents are alleged in a complaint but not attached may be
submitted for consideration in ruling on a CR 12(b)(6) motion without converting the
motion into one for summary judgment, especially ifthe parties do not dispute the
authenticity ofthe documents and they do not constitute testimony. FutureSelect
Portfolio Mgmt., Inc. v. Tremont Grp. Holdings, Inc., 175 Wash. App. 840, 865-66 & n.63,
309 P.3d 555 (2013) (citing Rodriguez v. Loudeye Corp., 144 Wash. App. 709, 726 & n.45,
189 P.3d 168 (2008) (relying on federal authority)), aff'd, 180 Wn.2d 954,331 P.3d 29
(2014). We review de novo a trial court's order granting a CR 12(b)(6) motion to
dismiss. Reid, 136 Wash. 2d at 200-01.
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Friends' complaint includes the following allegations (among others) in support of
its contention that the restrictions originally imposed on the use of Freddy Park by the
2001 deed and restrictions may not be amended by the county and Fred Meyer:
12. Prior to July 24,2001, Roundup Company ... approached Spokane
County with its desire of donating a 3.99 acre parcel of property to
the County to be used only as a "County~owned and operated natural
or community Park."
13. Spokane County, by Resolution Number 1-0660, accepted the
donation on July 24, 2001.
14. Spokane County specifically agreed to accept the property for park
purposes ... that is for "a natural, community or regional park"
without roads passing through Freddy Park.
26. On November 7,2012, Spokane County adopted Resolution 12-0910
which authorized the County to sign a document entitled
"Amendment to Restrictions on Use and Development of Property"
pursuant to which Fred Meyer Parties and Spokane County will
amend Exhibit B to the documents entitled "Deed with Covenant
and Joinder with Warranties and Title to Real Property" ....
30. Spokane County and Fred Meyer Stores, Inc. have signed a
document entitled "Amendment to Restrictions on Use and
Development of Property" dated November 19,2012.
57. . .. [T]he County cannot make the park property available for a road
because to do so would violate the "Restrictions on Use and
Development of Property" as contained in Exhibit B to the Deed
filed with the Spokane County Auditor on August 22, 2001 ....
58. The changes to the deed restriction set forth in the document filed
April 4, 2013 are not effective and are void or in excess of the
authority of the County Commissioners.
60. . .. The road through the park for use by the Developer is not a park
use. Indeed, a road through the park for any reason, except for the
purposes of the park would not be a park use.
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CP at 20-28.
Also before the trial court was the deed itself, which read in material part:
The Grantor, WILMINGTON TRUST COMPANY, ... not in its
individual capacity, but solely as Owner Trustee under the FMS Trust
1997-1 ... bargains, sells and conveys to SPOKANE COUNTY, ...
Grantee, the real property described on the attached Exhibit A,
TOGETHER WITH all the tenements, hereditaments and appurtenances
belonging thereto, and the reversion and reversions, remainder and
remainders, rents, issues and profits thereof, and all the estate, right and
title to the property whether in law or in equity, and subject to the
Restrictions on Use and Development of Property as stated in Exhibit B,
and the encumbrances shown on Exhibit C.
TO HAVE AND TO HOLD all and singular the above mentioned
and described real property, together with appurtenances thereof, unto the
Grantee, and its heirs, successors and assigns forever.
CP at 53 (boldface and underline omitted).
The incorporated "Restrictions on Use and Development of Property" set forth in
the attached Exhibit B read in their entirety;
The herein described real property shall be held, conveyed, sold, and
improved only as a natural, community, or regional park. This condition
and restriction of use shall constitute a covenant and encumbrance which
shall run with the land and shall be perpetually binding upon Grantee, its
successors-in-interest and assigns, and all parties having or acquiring any
right, title, or interest in, or to, any part of the subject property.
There shall be no vehicular ingress or egress from the property to the
adjacent property owned by Grantor, Parcels A and G ofBSP-58-97.
Vehicular access to the property shall be only from Standard Drive.
A pedestrian walkway to Parcel G may be allowed subject to
Grantor's review and approval of the location, design, and construction of
the walkway.
Grantee shall install and maintain a fence within the boundaries of
the property along the adjacent boundaries of Parcels A and G. The design,
materials and height of the fence shall be subject to approval by Grantor.
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CP at 62.
The Board's Resolution No. 1-0660, adopted in July 2001, recited the
circumstances and terms of the proposed deed and provided:
NOW, THEREFORE, BE IT HEREBY RESOLVED ... that the
Board does hereby accept the donation of the 3.99-acre parcel of land from
Roundup Company subject to the terms and conditions set forth within the
recital herein above and in conjunction herewith does authorize either the
Chairman of the Board of County Commissioners of Spokane County or a
majority of the Board to execute at another than an open meeting any and
all necessary documents in connection with the donation.
CP at 65 (boldface omitted).
Finally, the Board's Resolution No. 12-0910, adopted in November 2012,
described the county hearing examiner's condition requiring that Star Saylor secure a
second ingress/egress through Freddy Park, stated that the county, in consultation with its
own traffic engineers, the Washington State Department of Transportation, and the local
fire district had determined that the road connection would be beneficial to area traffic
circulation, and went on to provide:
WHEREAS, a question has arisen whether the existing restrictive
covenant language in the above recital would permit the establishment and
construction of a public road across the Subject Real Property. To avoid
any issues regarding interpretation of the restrictive covenant, the FRED
MEYER PARTIES and Spokane County wish to amend the restrictive
covenant to allow for the establishment and construction of a public road
across the Subject Real Property.
NOW, THEREFORE, BE IT RESOLVED ... that the chairman of
the Board ... on behalf of the Board and Spokane County, be and is hereby
authorized to execute that document entitled "AMENDMENT TO
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RESTRICTIONS ON USE AND DEVELOPMENT OF PROPERTY"
pursuant to which FRED MEYER PARTIES and Spokane County will
amend "EXHIBIT 'B'" to documents entitled "DEED WITH
COVENANT" and "JOINDER WITH WARRANTIES TO TITLE TO
REAL PROPERTY" ... to provide as follows:
The herein described real property described shall be held,
conveyed, sold, and improved as a natural, community, or
regional park andfor the establishment ofa pu~lic road as
depicted in the attached Exhibit "e." This condition and
restriction of uses shall constitute a covenant and
encumbrance which shall run with the land and shall be
perpetually binding upon the Grantee, its successors-in­
interest and assigns and all parties having or acquiring any
right[,] title, or interest in, or to, any part of the subject
property.
CP at 70-71 (emphasis added) (boldface omitted). Aside from the italicized language, the
provisions of the 200 I restrictions remained unchanged. The amendment was signed by
the county and Fred Meyer Stores Inc.
A dedication is generally defined as the devotion of property to a public use by an
unequivocal act of the owner, manifesting an intention that it shall be accepted and used
now or in the future. 11 A EUGENE MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS
§ 33.02, at 308-09 (3d ed. rev. voL 2000). No particular acts, ceremonies, or special
language is required to effectuate a dedication. ld. at 311-12. "A deed given to a
municipality may operate as a dedication where it provides for a particular use of the
property conveyed." ld. at 319-20.
Dedications may be classified as common law or statutory. Sweeten v.
Kauzlarich, 38 Wash. App. 163, 165,684 P.2d 789 (1984) (citing 26 C.J.S. Dedication § 1,
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at 399 (1956)). Statutory dedications operate by way of grant, and in Washington are
provided for by RCW 58.08.015, which provides:
Every donation or grant to the public ... marked or noted as such on the
plat of the town, or wherein such donation or grant may have been made,
shall be considered, to all intents and purposes, as a quitclaim deed to the
said donee or donees, grantee or grantees, for his, her or their use, for the
purposes intended by the donor or donors, grantor or grantors, as aforesaid.
Common law dedications, by comparison, are controlled by common law
principles, and operate by way of equitable estoppel. Kiely v. Graves, 173 Wash. 2d 926,
932,271 P.3d 226 (2012). "A common law dedication is the designation ofland, or an
easement on such land, by the owner, for the use of the public, which has been accepted
for use by or on behalf of the public." Richardson v. Cox, 108 Wash. App. 881, 890,26
P.3d 970,34 P.3d 828 (2001).
To find a dedication, there must be '''(1) An intention on the part of the owner to
devote his land, or an easement in it, to a public use, followed by some act or acts clearly
and unmistakably evidencing such intention; and (2) an acceptance of the offer by the
public.'" Sweeten, 38 Wash. App. at 165 (quoting City o/Seattle v. Hill, 23 Wash. 92,97,
62 P. 446 (1900)). '''[W]hen the intention of the owner to dedicate is clear, manifest, and
unequivocal ... it becomes effective for that purpose.'" City 0/ Spokane v. Catholic
Bishop o/Spokane, 33 Wn.2d 496,503,206 P.2d 277 (1949) (quoting Corning v. Aldo,
185 Wash. 570,576,55 P.2d 1093 (1936)). The burden of proof to establish a dedication
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Friends ofN Spokane County Parks v. Spokane County
is on the party asserting it. Lopeman v. Hansen, 34 Wn.2d 291,294,208 P.2d 130
(1949).
"[I]f parkland is subject to a dedication, ... any diversion from the dedicated
purpose is illegal." Donald, 43 Wash. App. at 886.
"It is doubtless the law that, where a person dedicates or donates to a
city a tract of land, with a restriction upon its use-as for instance, where it
is so dedicated or donated solely for a park or a public street-the city can
not legally divert the use of such property to uses and purposes inconsistent
with the purpose of such grant ..."
Id. (alteration in original) (quoting Seattle Land & Improvement Co. v. City ofSeattle, 37
Wash. 274, 276, 79 P. 780 (1905)). "Property acquired by a municipality by dedication is
the same as any other municipal property, except that it cannot be diverted to any
inconsistent use." llA MCQUILLIN, supra, § 33.65, at 505 (citing, among other
authority, Albee v. Town ofYarrow Point, 74 Wash. 2d 453, 459-60, 445 P.2d 340 (1968)).
While no reported Washington decision has addressed the issue, cases from other
jurisdictions have held that a municipality may not use parkland for a public highway.
See Village ofRiverside v. Maclean, 210 Ill. 308, 323-24, 71 N.E. 408 (1904) (village's
contention that proposed roadway through park would be a "pleasure driveway" was
unsupported by evidence; injunction of construction affirmed on basis that the extension
of roadway through the park "will be a perversion of the use of which the premises ...
were originally dedicated"); City ofSt. Louis v. Bedal, 394 S.W.2d 391,397 (Mo. 1965)
(while proposed roadway would in some ways enhance use of park, it was still a
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No. 32056-1-111
Friends ofN Spokane County Parks v. Spokane County
diversion from park uses; "The park was not created for surface traffic."); and see City of
Hermosa Beach v. Superior Court, 231 Cal. App. 2d 295,41 Cal. Rptr. 796 (1964)
(recognizing taxpayer's standing to challenge construction of road across beach property
deeded to city "as a public pleasure ground").
The fact that the Fred Meyer Parties joined in the amendment does not detract
from Friends' ability to challenge it. "After the dedication is complete, the dedicator
cannot restrict or change the uses for which it was made, or otherwise impose
conditions." llA MCQUILLIN, supra, § 33.10, at 340 (footnote omitted).
Friends' first four claims for relief seek to enforce the restrictions imposed by
what it contends was an accepted dedication. Accepting as true the allegations of the four
claims, they state a claim on which relief could be granted.
III. Unconstitutional Gift of Public Funds
Friends also challenges dismissal of its claim that the county's amendment of the
deed restrictions in order to permit construction of ingress/egress for Star Saylor's
development constitutes a gift of county funds to the developer in violation of article
VIII, section 7 of the Washington Constitution, which provides:
No county, city, town or other municipal corporation shall hereafter give
any money, or property, or loan its money, or credit to or in aid of any
individual, association, company or corporation, except for the necessary
support of the poor and infirm, or become directly or indirectly the owner
of any stock in or bonds of any association, company or corporation.
25
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The manifest purpose of the provision '''is to prevent state funds from being used to
benefit private interests where the public interest is not primarily served.'" CLEAN v.
State, 130 Wash. 2d 782, 797, 928 P.2d 1054 (1996) (quoting Japan Line, Ltd. v.
McCafJree, 88 Wn.2d 93,98,558 P.2d 211 (1977)).
No unconstitutional gift of public property occurs when funds are expended in
carrying out a fundamental purpose of government. City ofTacoma v. Taxpayers ofCity
ofTacoma, 108 Wash. 2d 679, 702, 743 P.2d 793 (1987). "Outside of expenditures for
fundamental governmental purposes," article VIII, section 7 requires that we "focus on
two factors to determine if a gift occurs: consideration and donative intent." Id. (citing
Gen. Tel. Co. ofNw., Inc. v. City ofBothell, 105 Wn.2d 579,587-88, 716 P.2d 879
(1986)). A project or program "must be presumed constitutionally valid, and the burden
of overcoming that presumption lies with those challenging [the public entity's]
authority." Id.
Friends' complaint includes the following allegations (among others) in support of
its contention that amendment of the deed restrictions in order to permit construction of
ingress/egress for Star Saylor's development constitutes a gift of county funds to the
developer in violation of article VIII, section 7 of the Washington Constitution:
23. Star Saylor wants to have Spokane County provide ... it with an[ ]
easement th[r]ough the Freddy Park from Standard Drive to the
Developer's property adjacent to the Freddy Park southerly property
line which will connect with Regina which comes to the Star Saylor
property from the west.
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No. 32056-1-III
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75. The Spokane County Commissioners desire to assist a private
developer who intends to build a number of residences south of the
park and bordering the park property. The Commissioners want to
allow the Developers to construct a road through the park-the road
is to be 34 feet wide with the paved portion 24 feet wide.
76. The proposed roadway is contingent on the construction of the
development; that is, it is solely for the purposes of the
development-the proposed development must have the road in
order to pursue the land use of creation of multiple living units.
77. What the county intends to do is clearly a violation of Wash. Const.
Art. VIII, Section 7.
CP at 21-31.
Friends argues that its allegations that the county commissioners' "desire to assist
a private developer" and that the proposed roadway "is solely for the purposes of the
development" sufficiently allege donative intent and that the trial court was required to
treat its factual allegations as if they were true. Br. of Appellant at 18. Before King
County v. Taxpayers ofKing County, 133 Wash. 2d 584, 949 P.2d 1260 (1997), the
Washington Supreme Court had held that donative intent is a "factual issue to be resolved
by the trier of fact." In re Estate ofLittle, 106 Wn.2d 269,288, 721 P.2d 950 (1986).
Before King County, one might have argued-as the dissenting justices in that case did-
that a plaintiff could establish an unconstitutional gift of public funds by demonstrating
the government's donative intent or that it received a grossly inadequate return. See King
County, 133 Wash. 2d at 623 (Sanders, J., dissenting). Before King County, one might have
argued, based on earlier decisions, that it was only if the plaintiff could not show
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No. 32056-1-111
Friends ofN. Spokane County Parks v. Spokane County
donative intent or gross inadequacy that the trial court should inquire into the adequacy of
the consideration. See id. But King County established that such a view would be
mistaken.
The seven-member majority in King County held that in assessing whether a
taxpayer has shown that there has been a transfer of property without consideration and
with donative intent, "courts do not inquire into the adequacy of consideration, but
employ a legal sufficiency test," explaining,
We have been reluctant to engage in an in-depth analysis of the adequacy of
consideration because such an analysis interferes unduly with governmental
power to contract and would establish a "burdensome precedent" ofjudicial
interference with government decision making.
Id. at 597. And "[l]egal sufficiency 'is concerned not with comparative value but with
that which will support a promise"': a question of law. Id. (quoting Browning v.
Johnson, 70 Wash. 2d 145, 147,422 P.2d 314, 430 P.2d 591 (1967». When asked at oral
argument whether legal sufficiency was not the test, Friends' lawyer criticized the
majority's opinion in King County as mistakenly applying a contract rule-that "even a
peppercorn" is legally sufficient consideration to support a promise-as inadequately
protecting public assets, a position reminiscent of Justice Sanders' dissent in King
County. Unlike Justice Sanders, we are not free to disagree with the Supreme Court
majority's construction of the Washington Constitution.
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The trial court had before it Resolution No. 12-0910, adopted in November 2012,
which stated that Star Saylor would be required to "'secure and construct'" the roadway
and that the county, in consultation with its own traffic engineers, the Washington State
Department of Transportation, and local fire district 9 had "determined that a road
connection between Hastings Road and Regina Road along the Standard Drive alignment
would be beneficial to area traffic circulation and relieve pressure on the Regina Road/
State Highway intersection." CP at 70. As a matter of law, private construction of a road
that the county concluded would be beneficial to area traffic circulation and would
relieve pressure on a state highway intersection satisfies the low "peppercorn" standard of
legal sufficiency. Cf Northlake Marine Works, Inc. v. City ofSeattle, 70 Wash. App. 491,
507, 857 P .2d 283 (1993 ) (city did not violate the prohibition against gifts of public
property when it conveyed an abandoned railroad right-of-way to private developers in
exchange for development of public trail); CLEAN v. City ofSpokane, 133 Wash. 2d 455,
470, 947 P .2d 1169 (1997) ("Although Appellants may view the transaction as an unwise
use of public funds that unduly benefits the Developers, the wisdom of the plan is not for
this court to consider.").
The court was required to accept facts alleged in Friends' complaint as true but
was "not required to accept the complaint's legal conclusions." Loudeye Corp., 144 Wn.
App. at 717-18. Because Friends' complaint and the documents legitimately considered
by the court revealed legally sufficient consideration, we need not address whether
29
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I
j
making government property available for construction of a roadway serving a residential
I
I development is a fundamental purpose of government.
I
I
IV. Ineffective Execution
Friends' third assignment of error is that the court incorrectly viewed its claim that
1
J Fred Meyer had no authority to sign the 2012 amendment as failing to state a claim upon
I which relief could be granted.
The 2001 conveyance documents, whose contents the court was entitled to
consider, reveal that the Fred Meyer Parties probably always held the beneficial interest
in the property, which presumably reverted to them when Wilmington Trust was canceled
in July 2012 (as recited by Resolution No. 12-0910).3 But a more important and
3 Wilmington Trust Company executed the 2001 deed "not in its individual
capacity, but solely as Owner Trustee" under a business trust. CP at 53. The Fred Meyer
Parties rather than Wilmington Trust provided warranties of title. A joinder document
stated that Wilmington Trust held fee title "as security for the performance of obligations
owed under a synthetic lease financing vehicle" and disclosed that Roundup Company
was prime lessee under a prime lease with Fred Meyer Stores Inc., Fred Meyer Stores
Inc. had a prime lease with Fred Meyer Inc., and Fred Meyer Inc. had a prime lease with
Wilmington Trust. CP at 56.
A synthetic lease is one under which (as relevant here) a special purpose entity
(SPE) is formed to be (on paper) the owner and lessor of a facility-often a real estate
project to be occupied by only the corporate user. The SPE enters into a relatively short­
term lease (usually not exceeding 10 years) with the high credit rating corporate user and
the terms of the SPE's agreement with the corporate user provide the mortgage lender
assurance that its debt is secure while providing the corporate user with essentially all of
the material benefits and burdens of ownership of the real estate. Anthony J. Luppino,
Stopping the Enron End-Runs and Other Trick Plays: The Book-Tax Accounting
Conformity Defense, 2003 COLUM. Bus. L. REv. 35, at 54-55.
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No. 32056-1-III
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threshold issue for purposes of the motion to dismiss is that this claim by Friends
amounts to nothing more than a charge that the county made a contract with the wrong
party. Entering into an ineffective contract is not an illegal act.
To sue the county for this asserted contracting mistake, Friends has standing only
if it alleges a special injury arising from the fact that the county signed an amendment
with the wrong party. But the only injury pleaded by Friends arises from the county's
alleged violation of the 2001 deed, not from its execution of the amendment with the
wrong party. The trial court did not err in concluding that this claim, including standing
to assert it, was inadequately pleaded.
V. Disqualification Motion
Finally, Friends argues that the trial court erred in concluding that it failed to
demonstrate that the county prosecutor's concurrent representation of the county and
Fred Meyer presented a disqualifying conflict of interest. "Review of a court's decision
to grant or deny a motion to disqualify counsel is a legal question that is reviewed de
novo." Sanders v. Woods, 121 Wash. App. 593, 597, 89 P.3d 312 (2004).
In the trial court, Friends challenged the prosecuting attorney's dual representation
of the county and Fred Meyer on two grounds: that (1) the representation created a
conflict of interest in violation ofRPC 1.7(a); and (2) even if clients consented to the dual
representation, it was prohibited by law under RPC 1.7(b )(2) in that it would violate
article VIII, section 7 of the Washington Constitution. On appeal, Friends makes the
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additional argument that the county lacks statutory authority to provide legal services to a
private party under RCW 36.27.020. Friends' argument regarding the prosecutor's
authority under RCW 36.27.020 is raised for the first time on appeal. Consistent with our
general practice under RAP 2.5(a), we decline to consider it.
RPC 1.7(a) prohibits a lawyer from representing a client if the representation of
that client "will be directly adverse to another client," or ifthere is a significant risk that
the representation of more than one client "will be materially limited by the lawyer's
responsibilities to another client, a former client or a third person or by a personal interest
of the lawyer." "A lawyer represents conflicting interests when, on behalf of one client,
it is the lawyer's duty to contend that which the lawyer's duty to another client requires
him or her to oppose." In re Marriage o/Wixom, _ Wn. App. 332 P.3d 1063,
1072, motion/or discretionary review filed, No. 90895-8 (Wash. Oct. 15,2014).
Even where a concurrent conflict exists, an attorney may generally continue
representing both parties by obtaining informed consent in writing from each affected
client. RPC 1.7(b)(4). Nonetheless, "some conflicts are nonconsentable, meaning that
the lawyer involved cannot properly ask for such agreement or provide representation on
the basis ofthe client's consent." RPC 1.7 cmt. 14. One instance in which a conflict is
nonconsentable is if the representation is prohibited by law. RPC 1.7(b)(2).
32
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A. Conflicting interests
According to Friends, the prosecutor's dual representation creates an inherent
conflict "in the divided loyalties." Br. of Appellant at 23. Friends relies on Lettley v.
State, 358 Md. 26, 746 A.2d 392 (2000), in which the court held that a lawyer's
simultaneous representation of a criminal defendant and another client, who allegedly
confessed to the crime with which the defendant was charged, created a conflict of
interest depriving the defendant of effective assistance of counsel. The court referred to
"[the defendant's] right to undivided loyalty and assistance." Id. at 43.
The fundamental error in Friends' analysis of conflict of interest is that it proceeds
from the position Friends believes the county should be taking with respect to the 2001
deed and restrictions: namely, that the county holds the park property in trust, particularly
for nearby county residents, and that Fred Meyer has no continuing interest that enables it
to participate in an amendment. Friends then contrasts that position with the position that
Fred Meyer is taking: that it has a continuing property interest enabling it to amend the
park deed to permit construction of a road. To determine whether a conflict of interest
exists, however, the trial court properly considered the position that the county was in
fact taking, as determined by its duly-elected board of county commissioners.
Washington statutes "essentially require the prosecutor to maintain a certain degree of
allegiance to the county commissioners, insofar as the county commissioners are the
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No. 32056-1-111
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body that exercises county 'powers' ... and adopts the official county position on legal
issues." Osborn v. Grant County, l30 Wn.2d 615,627,926 P.2d 911 (1996).
As evidenced by the Board's 2012 resolution and both parties' execution of the
November 2012 amendment, the parties' objectives in this litigation have been aligned.
The prospect that the county might prove to be mistaken in some of the legal positions
taken is not a factor for the court to consider in weighing disqualification. The county is
entitled to be represented by a lawyer willing to advocate for the position adopted by the
county commissioners if there is a basis in law and fact for doing so that is not frivolous.
See RPC 3.1 (lawyer's duty to advance meritorious claims and contentions). The trial
court did not err in concluding that the county's and Fred Meyer's interests were not
conflicting.
B. Prohibited representation
Friends argues in the alternative that the prosecuting attorney should have been
disqualified from representing Fred .Meyer because for the county to provide legal
services to a private party violates article VIII, section 7 of the Washington Constitution.
We have already discussed the fact that after King County we examine only whether the
governmental body received consideration sufficient to support the existence of a
contract, an issue oflaw. The allegations of Friends' complaint and the content of
documents properly considered by the court demonstrate that the county's promise to
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No. 32056-1-111
Friends ofN. Spokane County Parks v. Spokane County
defend Fred Meyer in the event of litigation was given in return for legally sufficient
consideration: Fred Meyer's execution of the amendment.
We affinn the trial court's denial of Friends' motion to disqualify; its dismissal of
count five of Friends' amended complaint, which we construe to allege creation of an
actual trust;4 and its dismissal of count six of Friends' amended complaint, alleging a
violation of article VIII, section 7 of the Washington Constitution. We otherwise reverse
and remand for proceedings consistent with this opinion.
Siddoway, C.J.
WE CONCUR:
Fearing, J.
rv--'\ ("\
Lawrence-Berrey, J.
4 Local governments are sometimes referred to by statutes, courts, and text writers
as "trustees" of dedicated land. A helpful discussion of the prevalent theory that the
property rights created are of a nontrust character appears in Hermosa Beach, 231 Cal.
App. 2d at 297. Friends' claim based on the deed restrictions and asserted dedication is
adequately pleaded in the first four counts of its amended complaint.
35