Cathcart-Maltby-Clearview Community Council v. Snohomish County
| Decision Date | 08 October 1981 |
| Docket Number | No. 47493-1,CATHCART-MALTBY-CLEARVIEW,47493-1 |
| Citation | 96 Wn.2d 201,634 P.2d 853 |
| Parties | , 12 Envtl. L. Rep. 20,167 COMMUNITY COUNCIL; North Creek Homeowners' Association, Appellants, v. SNOHOMISH COUNTY; Hillis Homes, Inc.; Snohomish Cascade View Properties; Albert Moss; LCF Associates; Leavitt Nu Pacific; Nu Pacific Company; and all other persons known and unknown having any interest in the property described, Respondents. |
| Court | Washington Supreme Court |
Smith, Brucker, Winn & Ehlert, Thomas H. Brucker, Lynn Weir, Seattle, for appellants.
Edward E. Level, Deputy Prosecutor, Heavey & Woody Edward Heavey, Breskin, Robbins, Bastian & Cohen, Robert Terwilliger, Everett, Graham & Dunn, Clemens H. Barnes, Alhadeff, Leavitt, Wesley & Bopp, Stephen R. Powell, Seattle, for respondents.
This case involves cross-appeals from a superior court judgment affirming a zoning change for two parcels of land in Snohomish County. One parcel, Silver Firs, consists of approximately 500 acres. The other, a 1,300 acre parcel, is known as Snohomish-Cascade. The developers of these properties intend to construct 6,000 residential units which may ultimately accommodate 19,000 people. The trial court approved the rezone and we believe properly so.
Prior to the proposed development, these tracts were subject to the Hillman Area Comprehensive Plan. It permitted the construction of 6 dwelling units per acre and zoned the area for rural and residential uses. That plan, however, was partially replaced in 1977 with another regulatory program, the North Creek Comprehensive Plan. The replacement primarily affected the Silver Firs tract. Most of the Snohomish-Cascade site remained under the Hillman plan.
The North Creek plan was implemented with the expectation that the Silver Firs property would be rezoned pursuant to a master plan submitted by the developers. Pending the approval of a master plan, the Silver Firs site and a portion of the Snohomish-Cascade property were zoned as "suburban agriculture" a designation which requires 1-acre lots.
In March 1978, the developers of these properties applied for a rezoning of the area, pursuant to their master plan. An Environmental Impact Statement (EIS), identifying the effects of the plan, was submitted. The Snohomish County Planning Commission recommended to the Board of Snohomish County Commissioners (Board) that the rezone amendments be denied. They believed the master plan, as submitted by the developers, was inconsistent with the North Creek plan and that any development should await the complete revision of the Hillman plan.
These recommendations were rejected by the Board and it approved, on February 28, 1979, both the master plan and the rezone proposals. In exchange for the rezoning, the developers executed a zoning agreement requiring them to comply with various ordinances, to submit supplemental EIS's with later sector plan applications, and to share in the cost of providing many of the public services which will be required by the new development. The agreement, which was limited to rezoning the area, did not confer any specific plat or subdivision approval. Such approvals were to be sought, and acted upon, in the future. This agreement and the rezoning resolutions were publicized on the 14th and 21st of April, 1979.
As a result of the agreement, the Silver Firs site was zoned for an average density of 4 dwelling units per acre and the density of the Snohomish-Cascade property was left to be determined by a new plan (Maltby Bay Comprehensive Plan) to be later developed by the county.
Dissatisfied with the Board's actions, residents in nearby communities (hereinafter petitioners) applied for a writ to review the rezone approval. The application was made on March 27, 1979, less than 30 days after the Board's initial decision. The writ alleged that the county had failed to consider the welfare of the area affected by the rezone, had rezoned the tracts in a manner inconsistent with the comprehensive land use plans then in effect, and had based its decision upon an inadequate EIS.
As the trial began, respondents Hillis Homes and Snohomish-Cascade joined in motions to dismiss for failure to timely commence the action and for failure to join indispensible parties. Twenty-One Oaks Associates, one of the owners of record, as well as contract vendors, mortgagees and beneficiaries under deeds of trust to the parcels were neither named in nor served with the writ.
The Superior Court held that a 30-day limitation period applied, rendering the action timely, and further concluded that all necessary parties had been joined. As to the merits of the writ, the court ruled that the Board had acted properly and that the rezoning approvals were lawful.
At the time of the county's rezone decision, there was no ordinance limiting the time in which such decisions could be reviewed. 1 The trial court ruled, for reasons which are unclear, that a 30-day limitation period applied.
As to the EIS issues, the suit was timely, for RCW 43.21C.080 provides that SEPA challenges may be brought within 30 days. Regarding the other alleged errors, the respondents argue that RCW 36.32.330 bars their review. That statute provides that "(a)ny person may appeal ... any decision or order of the board of county commissioners ... within twenty days ..."
In State ex rel. Lyon v. Board of County Comm'rs, 31 Wash.2d 366, 196 P.2d 997 (1948), we rejected a similar argument, stating that RCW 36.32.330 does not apply to county land use decisions. See also Chrobuck v. Snohomish County, 78 Wash.2d 858, 480 P.2d 489 (1971). We reasoned that the law
relating to city, town, county, and regional planning, imposes duties upon the county commissioners distinct from their ordinary and usual duties and is a special statute for a special purpose; and the conclusion is inescapable that the general statute with reference to appeals from decisions of the board ... is inapplicable ...
Lyon, 31 Wash.2d at 370-71, 196 P.2d 997.
In Pierce v. King County, 62 Wash.2d 324, 332, 382 P.2d 628 (1963), we further stated that where there is no express law to the contrary, the "rule of timeliness" applicable to appeals does "not apply to review of a zoning regulation." Instead, absent a controlling statute or ordinance, the writ must only be filed within a reasonable period after the rezone decision. Since the writ was filed within 30 days of the county's decision, it was timely.
One of the owners of record, Twenty-One Oaks Associates, was neither named in nor served with the writ. Also not named or served were contract vendors, mortgagees and beneficiaries to deeds of trust. It is argued that they were indispensable parties pursuant to CR 19 and consequently the writ should have been dismissed.
It appears no case has specifically confronted this issue. One of this state's appellate courts, however, has stated in dictum that a beneficiary under a deed of trust should be made a party. Veradale Valley Citizens' Planning Comm. v. Board of County Comm'rs, 22 Wash.App. 229, 588 P.2d 750 (1978).
The petitioners argue that since the owners and developers were parties to the writ, the financiers were not prejudiced by nonjoinder. They argue that such parties are not indispensable, see CR 19, on the basis that the owners will invariably protect the financiers' interest, since their interests are substantially the same.
The doctrine of indispensability is not jurisdictional but rather is founded on basic equitable considerations. 3A Moore's Federal Practice P 19.19, p. 19-345. A financial interest in the subject matter does not by itself make one an indispensable party. Id. at 19-129, 19-209. Thus, in this state, it has been held that mortgagees are not necessary parties to lien foreclosure proceedings. Washington Asphalt Co. v. Boyd, 63 Wash.2d 690, 388 P.2d 965 (1964); see also Jensen v. Arntzen, 67 Wash.2d 202, 406 P.2d 954 (1965). Given the similarity of interests between the owners, developers, and those holding security interests, we conclude that the latter were not indispensable parties to this action.
Owners of the rezoned property are, however, indispensable parties and ordinarily the failure to join them will warrant dismissal. Veradale, supra; Andrus v. County of Snohomish, 8 Wash.App. 502, 507 P.2d 898 (1973); Board of County Comm'rs v. Carter, 193 Colo. 225, 564 P.2d 421 (1977); Westlund v. Carter, 193 Colo. 129, 565 P.2d 920 (1977). In reaching that result, courts have considered several factors:
(1) The successful property owner-applicant is a necessary party because he is "most affected" by the granting of the writ of review, and he should be a party to any proceeding, the purpose of which is to invalidate or affect his interests. Andrus v. County of Snohomish, 8 Wash.App. 502, 507-08, 507 P.2d 898 (1973). (2) As a quasi-judicial body, a zoning board has no legal interest in the ultimate decision, but represents the public interest, and is primarily concerned with assisting the court to make a proper judgment. Sumner-Tacoma Stage Co. v. Department of Public Works, 142 Wash. 594, 597, 254 P. 245 (1927). By contrast, a property owner would have a very real interest in opposing the demands of others who seek to reverse the decision of the zoning board on appeal. (3) There is nothing in the statutes concerning the writ of certiorari to indicate that an adversary proceeding is not contemplated. (4) A judgment made by the court in a review by certiorari would not be binding upon the property owners who were not made parties, and it, therefore, could not take away the property interests they have established under our zoning laws. Sumner-Tacoma Stage Co., at 600, 254 P. 245.
(Footnote omitted.) Veradale, 22 Wash.App. at 232-33, 588 P.2d 750.
We find that analysis persuasive and conclude that Twenty-One Oaks Associates was an indispensable party which should have been joined.
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