Andrus v. Snohomish County
| Citation | 507 P.2d 898,8 Wn.App. 502 |
| Decision Date | 12 March 1973 |
| Docket Number | No. 1088--I,1088--I |
| Parties | Dwight ANDRUS, Appellant, v. COUNTY OF SNOHOMISH and its Board of Adjustment, Respondents. |
| Court | Court of Appeals of Washington |
Bell, Ingram, Johnson & Level, Lewis A. Bell, Everett, for appellant.
Robert E. Schillberg, Snohomish County Pros. Atty., Eugene Butler, Deputy Pros. Atty., Everett, for respondents.
Dwight Andrus appeals from the Superior Court's refusal to grant a writ of certiorari by which he sought review of the Snohomish County Board of Adjustment's decision to grant one Robert Crow a conditional use permit to establish a motorcycle race track. The issues raised concern the timeliness of the application for issuance of the writ, the service of process and the question of indispensable parties.
The board of adjustment granted the permit on April 29, 1970, and Andrus made application to the Superior Court for a writ of certiorari on May 4, 1970. An alias writ was granted directing the secretary of the board of adjustment to certify a return on or before August 1, 1970. The alias writ, styled as 'DWIGHT ANDRUS vs. COUNTY OF SNOHOMISH AND ITS BOARD OF ADJUSTMENT' was served on the Snohomish County auditor on May 7, 1970. These pleadings were not served on the board of adjustment or upon its secretary who was designated in the body of the writ. No return was filed as required, and the board of adjustment appeared specially moving to dismiss the writ on the grounds that there was insufficient service of process, that Robert Crow was an indispensable party and had not been served and that a claim had not been stated upon which relief could be granted because Andrus had failed to show standing. The court quashed this initial writ on September 14, 1970, for insufficiency of service of process.
The next day, Andrus secured an order to show cause why the writ should not be granted, filed and directed to 'COUNTY OF SNOHOMISH and ITS BOARD OF ADJUSTMENT; and the CLERK THEREOF, ONE ROBERT KNIGHT, and ROBERT SHRIBER, the Chairman thereof.' This order was filed under the same cause number as the original writ and was served upon the secretary and chairman of the board of adjustment and the county auditor on September 15, 1970. Robert Crow was never named as a party to these proceedings nor served with process of any kind. A hearing was held on September 22, 1970, as to whether the writ should issue; and on September 22, 1970, the action was dismissed for failure of proper service of process on the board of adjustment. The assignment of error raised by the appellant is to the entry of this order of dismissal.
The application for the writ of certiorari initially was timely filed within 10 days of the grant of the permit. The Snohomish County Code § 18.88.150 reads:
The order of the Board of Adjustment on an application for a variance, conditional use permit . . . shall be final and conclusive unless within ten days from the date of the action, the original applicant or an adverse party files an appeal to the Superior Court for a writ of certiorari, a writ of Prohibition or a writ of mandamus . . .
This section is consistent with RCW 36.70.890, which states in part:
The action by the board of adjustment on an application for a conditional use permit . . . shall be final and conclusive unless within ten days from the date of said action . . . an adverse party makes application to a court of competent jurisdiction for a writ of certiorari, . . .
A writ of certiorari may be granted, without notice, under RCW 7.16.050 which states:
The application must be made on affidavit by the party beneficially interested, and the court may require a notice of the application to be given to the adverse party, or may grant an order to show cause why it should not be allowed, or may grant the writ without notice.
In any event, the writ that was issued on the original application was served only upon the county auditor. Service must be pursuant to RCW 7.16.100:
The writ may be served as follows, except where different directions respecting the mode of service thereof are given by the court granting it:
(1) Where it is directed to a person or persons by name or by his or her official title or titles, or to a municipal corporation, it must be served upon each officer or other person to whom it is directed, or upon the corporation, in the same manner as a summons.
It must be directed under the provisions of RCW 7.16.160:
The writ may be directed to the inferior tribunal, board or officer, or to any other person having the custody of the record or proceedings to be certified. When directed to a tribunal the clerk, if there be one, must return the writ with the transcript required.
Here the alias writ as first issued was directed to the 'COUNTY OF SNOHOMISH AND ITS BOARD OF ADJUSTMENT' in its title and to the 'COUNTY OF SNOHOMISH and its BOARD OF ADJUSTMENT and the Secretary thereof' in the body of the writ, commanding the certification and return of the full transcript of the proceedings and hearings leading up to the issuance of the conditional use permit. The writ was required by RCW 7.16.060 to be directed to the board or person having the custody of the records or proceedings to be transcribed and certified. It was properly directed but was served, not as required by RCW 7.16.100 upon those to whom it was directed, but instead upon only the county auditor. The auditor did not have custody of the records and could not be required or expected to prepare a transcript thereof or file a return pursuant to the writ. Therefore, the service of this writ failed, and the trial court properly quashed the initial writ on September 14, 1970.
Undaunted, the appellant proceeded the following day pursuant to the alternative route permitted under RCW 7.16.050 by way of an order to show cause. The order was executed and served, as previously indicated, nearly 5 months after the granting of the conditional use permit. The questions presented on appeal arise from the dismissal of the action because of failure of proper service of this order to show cause. An order was secured by the appellant staying the issuance of the conditional use permit upon the filing of a supersedeas bond.
The appellant timely applied for the writ of certiorari initially on May 4, 1970, as required by § 18.88.150 of the Snohomish County Code and RCW 36.70.890. In Pierce v. King County, 62 Wash.2d 324, 333, 382 P.2d 628, 634 (1963), we find:
(W)here certiorari is taken from an inferior court to a superior court, the time within which certiorari must be brought shall be determined by the time allowable for an appeal as prescribed by statute or rule of court . . . this rule is limited to cases arising in the courts, or in other judicial proceedings, where the direct notice of the pendency thereof to the parties involved is jurisdictional. Service of process and notice of the pendency of the action are indeed the Sine qua non of due process and, hence, are jurisdictional in judicial proceedings. This rule of timeliness should not apply to a review of a zoning regulation.
Indeed, even in a case arising from the courts, the rule that limits certiorari to the time within which an appeal could have been taken did not govern. In State ex rel. Lowary v. Superior Court, 41 Wash. 450, 83 P. 726, review of an order appointing a guardian for an incompetent person was sought by certiorari more than a year after the order had issued. . . . We held that certiorari was not only a proper remedy, but it was not subject to the defense of laches.
In considering laches, estoppel, waiver and other equitable defenses, the rules governing the timeliness for commencement of certiorari to review a judicial proceeding do not apply to a review of the acts of public authorities having the power to adopt and promulgate zoning regulations.
See also Reagles v. Simpson, 72 Wash.2d 577, 586, 434 P.2d 559 (1967); State ex rel. L. L. Buchanan & Co. v. Washington Public Serv. Comm'n, 39 Wash.2d 706, 237 P.2d 1024 (1951); Spooner v. Seattle, 6 Wash. 370, 33 P. 963 (1893).
RCW 7.16.330 gives the court issuing a writ of certiorari the power to make it returnable and hold a...
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