Burg v. City of Seattle, 10226-5-I

• Citation: 647 P.2d 517,32 Wn.App. 286
• Decision Date: 21 June 1982
• Docket Number: No. 10226-5-I,10226-5-I
• Parties: William J. BURG and Kay Burg, husband and wife; Dr. Leo H. Silverman and Elizabeth C. Silverman, husband and wife; Robert J. Adolph; L. N. Hartnagel; Robert S. Lint, Respondents, v. The CITY OF SEATTLE, a municipal corporation, Appellant.
• Court: Court of Appeals of Washington

Page 286

32 Wn.App. 286

647 P.2d 517

William J. BURG and Kay Burg, husband and wife; Dr. Leo H.

Silverman and Elizabeth C. Silverman, husband and

wife; Robert J. Adolph; L. N. Hartnagel;

Robert S. Lint, Respondents, v. The CITY OF SEATTLE, a municipal corporation, Appellant.

No. 10226-5-I.

Court of Appeals of Washington, Division 1.

June 21, 1982.

Rehearing Denied Sept. 3, 1982.

Douglas Jewett, City Atty., J. Roger Nowell, Seattle, for appellant.

Weinrich, Gilmore & Adolph, P. S., Robert J. Adolph, Seattle, for respondent.

SWANSON, Judge.

Quaere: Does a writ of mandamus lie to compel a municipality to repair a street partially closed by a landslide and to restore four-wheeled vehicular access of certain homeowners to their property abutting on such a street? We answer in the negative and reverse.

After waiting more than 9 months for the City of Seattle to repair the damage caused by a landslide which resulted in the partial closure of the street which provides the only access to their homes, residents of Perkins Lane West (the Burgs, the Silvermans, Adolph, Hartnagel and Lint) sued for monetary damages and for a writ of mandamus to force the City to repair the street immediately. The trial court granted a partial summary judgment directing the issuance of a writ of mandamus ordering the City to "take immediate steps to repair and restore Perkins Lane West at the location of the landslide so as to provide regular four-wheeled vehicular traffic." ¹ The trial court also determined that the repair of the slide damaged portion of Perkins Lane West is a ministerial duty of the City, that the slide and the City's failure to repair and reopen the roadway to travel create an emergency situation which threatens the life, health and safety of the affected residents, and that the City may neither abandon nor vacate the road nor require the property owners to share the cost of repair or a portion of the cost by a special assessment or otherwise. ²

The City contends that a writ of mandamus is an inappropriate remedy in this situation and cannot be issued to compel a city to repair a damaged public street in the absence of a strict statutory duty ministerial in character. The City argues that there is no duty clearly imposed upon it to repair or restore its streets and that the exercise of any such responsibility is discretionary in character.

The material facts are not in dispute and are as follows: Perkins Lane West is a narrow road winding midway along the precipitous western face of Magnolia Bluff which rises above Puget Sound in Seattle. The portion of the road involved in this case lies within Carleton Beach Tracts, a land addition to the City of Seattle which was platted, dedicated, and accepted in 1928. A few years later under local improvement district procedures, the road was improved by grading and curbing. Perkins Lane West, which comes to a dead end to the south, is the sole access road for the respondent landowners whose homes abut the road along its southerly termination point.

From 1933 until 1980 the road has been plagued by landslides requiring periodic repairs. After each landslide the City routinely filled the slide area and repaired the road. On January 12, 1980, a more severe landslide damaged the road, rendering a section of the roadway in the 1900 block dangerous for automobile traffic. This slide occurred through natural forces and was not the result of any act of the City.

Because of the potential danger, the City closed the road to automobiles from the slide area south. This closure allows respondents access to their homes only by foot or by bicycle. The road closure also hinders police and fire protection, utility service and emergency vehicles. The City hired an engineering firm to survey the damage and to recommend methods of repairs. On September 2, 1980, the engineering firm issued a report which concludes that repair of the roadway is feasible and practicable because the January 12 landslide was caused by surface sloughing of "accumulated slope wash materials and underlying native soils." Repairs are estimated at a cost of $137,000 to $231,500 depending upon the method utilized. The firm's report recommends that remedial work be done in July or August.

The City gave the repair work on Perkins Lane West a low priority, considering the work a capital improvement for which the City did not have available funds. Consequently, the landowners brought suit. A partial summary judgment was granted, and this appeal followed.

The grounds for the issuance of a writ of mandamus are stated in RCW 7.16.160 which provides,

It may be issued by any court ... to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station, or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person.

We note preliminarily that a writ of mandamus is an extraordinary remedy and should be used sparingly and will not be granted where there is a plain, speedy, and adequate remedy in the ordinary course of law. See RCW 7.16.170. It is uniformly held that mandamus may not be used to compel public officers or administrative bodies to perform acts or duties which require the exercise of discretion. Lillions v. Gibbs, 47 Wash.2d 629, 633, 289 P.2d 203 (1955); State ex rel. Ryder v. Pasco, 3 Wash.App. 928, 478 P.2d 262 (1970). Mandamus will only be used to compel the performance of a duty enjoined by law, Adams v. Seattle, 31 Wash.2d 147, 151, 195 P.2d 634 (1948), or where there is a clear duty to act. State ex rel. Burlington N., Inc. v. State Utils. & Transp. Comm'n, 93 Wash.2d 398, 609 P.2d 1375 (1980). The general rule governing the use of mandamus to compel a municipality to repair its streets is stated in 17 E. McQuillin, Municipal Corporations § 51.42 at 561-62 (3d ed. 1968):

Mandamus will lie, it has been held, to compel a municipality or its officers to repair a public way when the duty to do so is ministerial and clearly imposed by law, provided, it may be added, they have funds on hand or under their control for such purpose.

(Footnotes omitted.)

Our first inquiry therefore is directed to the nature of the action ordered-is it discretionary or ministerial in character? A particularly lucid definition of a ministerial duty as distinguished from a discretionary function is found in State ex rel. Clark v. Seattle, 137 Wash. 455, 461, 242 P. 966 (1926):

"It is a frequently asserted and universally recognized rule that mandamus only lies to enforce a ministerial act or duty; in this sense a ministerial duty may be briefly defined to be some duty imposed expressly by law, not by contract or arising necessarily as an incident to the office, involving no discretion in its exercise, but mandatory and imperative. The distinction between merely ministerial and judicial and other official acts is that where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is ministerial; but where the act to be done involves the exercise of discretion or judgment, it is not to be deemed merely ministerial."

(Citation omitted.) A discretionary function was defined in Moloney v. Tribune Publishing Co., 26 Wash.App. 357, 360, 613 P.2d 1179 (1980):

A discretionary function is one involving a basic governmental policy, program, or objective requiring the exercise of a basic policy evaluation, judgment, and expertise on the part of the officer or agency; it is essential to realization of the policy and within the proper authority and duty of the officer or agency.

(Citations omitted.)

Mandamus as authorized by RCW 7.16.160 will issue only in relation to the performance of a ministerial duty and not for a duty or power which requires the exercise of discretion. State ex rel. Clark v. Seattle, supra 137 Wash. at 457, 242 P. 966. Consequently, our Supreme Court determined that the question of whether a washed out county road was necessary for public convenience involved the exercise of discretion which required the county commissioners to take into consideration

the needs of other roads in the county, the cost of the improvement, the practicability of reconstructing the road, the extent of the use of it were it repaired, the amount of funds available, and so forth.

State ex rel. Good Hope Gold & Copper Mining & Dev. Co. v. Morgan, 117 Wash. 214, 216, 200 P. 1085 (1921). Therefore the Morgan court held that mandamus would not lie to compel repair of the county road. Similarly, our Supreme Court determined that a Grays Harbor County commissioner's decision to close a bridge serving a substantial number of Hoquiam residents was discretionary in character and not mandatory even though a statute authorized the expenditure of county funds for the construction and operation of a bridge within the city. Hoquiam v. Grays Harbor County, 24 Wash.2d 533, 166 P.2d 461 (1946). Our Supreme Court has also held that mandamus did not lie to compel the City of Seattle to reconstruct a fire damaged bridge, even though the destruction of the bridge inconvenienced the residents of a substantial section of the City. State ex rel. Clark v. Seattle, supra. As in the present case, the City did not affirmatively decline to rebuild the bridge but simply had not taken any active steps to do so. The City was considering the question of the kind of bridge to construct. Plaintiffs were not willing to wait because of the inconvenience caused by the loss of the bridge and so commenced an action to compel the City to repair or reconstruct the bridge. In affirming the trial court's decision denying mandamus, the Clark court said at page 463, 242 P. 966:

Whether the burned bridge should be rebuilt at...