Chaney v. Fetterly
| Decision Date | 31 March 2000 |
| Docket Number | No. 23728-8-II.,23728-8-II. |
| Citation | 100 Wash.App. 140,995 P.2d 1284 |
| Court | Washington Court of Appeals |
| Parties | Rick CHANEY and Julie Chaney, Appellants, v. Daniel FETTERLY and Lori Fetterly, husband and wife, Respondents. |
Thomas J. Parkes, Tacoma, for Respondents.
John Patrick O'Connor, Shillito & Giske, Robert Eugene Mack, Smith, Alling, et al., Tacoma, for Appellants.
The main question in this appeal is whether the doctrine of exhaustion of administrative remedies applies when a superior court and a quasi-judicial administrative agency have concurrent original jurisdiction. The answer is no.
The Chaneys and the Fetterlys own adjacent waterfront lots in Pierce County. The Fetterlys' lot lies north of the Chaneys' lot. Each lot is long and narrow, irregularly shaped, and subject to the Pierce County Code's administrative land use scheme.
The Pierce County Code (PCC) generally requires that a house be set back from the property line of the lot. It also contains procedures for obtaining variances and building permits, and procedures for appealing the decisions of County building officials. PCC § 15.01.060 states that "[a]ny person(s) or party directly aggrieved by the approval or denial of a building permit or application or by any administrative decision or order of the Building Official or his designee, pursuant to Chapter 1 of the Uniform Building Code [UBC] ... may appeal to the Pierce County Hearing Examiner by filing a notice of appeal within 20 calendar days of the building permit or written decision or order of the Building Official."1 PCC § 15.01.060 also states that "[t]he Decision of the Pierce County Hearings Examiner is final" unless an appropriate person "brings an action appealing... to Superior Court." UBC § 108.5.2 provides that a foundation inspection shall "be made after excavations for footings are complete." UBC § 108.1 states that when construction work is inspected by a building official, "[a] survey of the lot may be required by the building official to verify that the structure is located in accordance with approved plans."2
In 1994, the Fetterlys wanted to build a house on their lot. They wanted to locate it where their north and south boundaries were about 68 feet apart. The Pierce County Code required a north-side setback of 25 feet and a south-side setback of 30 feet. The result was a lawful buildable area of only 13 feet.
The Fetterlys applied for a variance, and a hearing was held. Ms. Chaney attended but did not speak. A hearing examiner granted the variance, which reduced the north-side setback to eight feet and the south-side setback to eight feet. No one appealed, and the propriety of the variance is not now disputed.
In April 1997, the Fetterlys obtained a building permit based in part on the eight-foot south-side setback. No one appealed, and the propriety of the building permit is not genuinely disputed.3
In late May or early June 1997, workers poured foundation footings for the new house. On June 4, 1997, a Pierce County building official approved the location of the foundation. On July 4 and July 5, 1997, the Chaneys notified the Fetterlys that the new house was encroaching into the eight-foot south-side setback area. The Fetterlys continued with construction. At present, however, the Fetterlys acknowledge that the house does indeed encroach into the eight-foot south-side setback area; according to a survey, it is within 2.6 feet of the Fetterly-Chaney boundary at one point, and no more than 7.88 feet from the Fetterly-Chaney boundary at any point.4
Later in July, while construction was still going on, the Chaneys complained to Pierce County that the house was encroaching into the south-side setback. By letter dated July 30, 1997, the County declined to act. It said that the matter was "a property line dispute;" that "[r]esolution may be pursued as a[c]ivil [a]ction;" and that "Pierce County is not a party to property line disputes between neighbors."5
Notwithstanding its letter of July 30, 1997, the County issued a stop work order on August 18, 1997. Two days later, on August 20, it lifted the order and stated again that the "[s]etback dispute is a civil matter[.]"6
On September 16, 1997, the Chaneys filed this original action in superior court. They prayed for an injunction and damages.
On January 22, 1998, the Fetterlys moved for summary judgment. They claimed that the Chaneys could not sue in superior court because the Chaneys had failed to exhaust their administrative remedies. The Fetterlys also claimed laches and equitable estoppel. The trial court granted the motion on the ground that the Chaneys had failed to exhaust their administrative remedies. After it dismissed the complaint with prejudice,7 the Chaneys brought this appeal.
According to the Fetterlys, the Chaneys may not sue for an injunction and damages because the Chaneys did not exhaust their administrative remedies through the County. The Fetterlys claim that the "Chaneys could have but failed to administratively appeal," to a hearing examiner and then to superior court: (a) the County's June 4 approval of the foundation; (b) the County's July 30 refusal to act; and (c) the County's August 20 withdrawal of the stop work order.8
Describing the effect of the doctrine of exhaustion of administrative remedies, the Fetterlys say that the doctrine "prohibits a party from contesting an agency action in court unless the party has first exhausted available administrative remedies."9 Before the effect of a doctrine can be material, however, the doctrine must apply. Here then, we examine whether the doctrine applies.
Whether the doctrine of exhaustion applies depends on the nature of the relationship between the administrative agency and the superior court. In situations where each has jurisdiction of some kind, the agency may have original jurisdiction, while the superior court has appellate jurisdiction; or, (2) the agency and the superior court may have concurrent original jurisdiction. The Supreme Court has recognized the first relationship by stating:
An appeal from an administrative tribunal invokes the appellate, rather than the general, jurisdiction of the superior court. [Union Bay Preservation Coalition v. Cosmos Dev. & Admin. Corp., 127 Wash.2d 614, 617, 902 P.2d 1247 (1995).] Acting in its appellate capacity, the superior court is of limited statutory jurisdiction, and all statutory procedural requirements must be met before jurisdiction is properly invoked. Fay v. Northwest Airlines, Inc., 115 Wash.2d 194, 197, 796 P.2d 412 (1990); Clymer v. Employment Sec. Dep't, 82 Wash.App. 25, 27, 917 P.2d 1091 (1996)."[10]
The Supreme Court has recognized the second relationship by stating that "[w]hen both a court and an agency have jurisdiction over a matter, the doctrine of primary jurisdiction determines whether the court or the agency should make the initial decision."11
The doctrine of exhaustion regulates the first relationship. It prevents a party from omitting to use, or starting to use but then abandoning before final conclusion, the only forum that has original jurisdiction.12 It functions much like RAP 2.213 and CR 54,14 which similarly provide that a party may not appeal from a court with original jurisdiction (the superior court) to a court with appellate jurisdiction (the Court of Appeals or Supreme Court) unless the party "exhausts" his or her remedies in the sense of obtaining a final and appealable superior court order.15 As the Washington Supreme Court has observed:
The doctrine of exhaustion of administrative remedies is well established in Washington. The rule provides that "[i]n general an agency action cannot be challenged on review until all rights of administrative appeal have been exhausted." Spokane Cy. Fire Protec. Dist. 9 v. Spokane Cy. Boundary Review Bd., 97 Wash.2d 922, 928, 652 P.2d 1356 (1982).[16]
And as the Court of Appeals has similarly observed:
Under the exhaustion of remedies doctrine, an agency's action cannot be appealed in the courts until all rights of administrative appeal have been exhausted. South Hollywood Hills Citizens Ass'n v. King County, 101 Wash.2d 68, 73, 677 P.2d 114 (1984). The doctrine applies in cases where a claim is originally cognizable by an agency which has established mechanisms for resolving complaints by aggrieved parties and the administrative remedies can provide the relief sought.[17] In contrast, the doctrine of primary jurisdiction regulates the second relationship. It applies when a court and an administrative tribunal have concurrent original jurisdiction, and the court is deciding whether it should defer to the tribunal.18 Thus, it "enable[s] referral of a claim" from the court to the administrative agency, but "[i]t does not deprive the court of jurisdiction."19 It functions much like the doctrine of forum non conveniens, which similarly applies when two courts have original jurisdiction and one is deciding whether to defer to the other.20 As the Supreme Court observed in one case:
When both a court and an agency have jurisdiction over a matter, the doctrine of primary jurisdiction determines whether the court or the agency should make the initial decision. The court will usually defer to agency jurisdiction if enforcement of a private claim involves a factual question requiring expertise that the courts do not have or involves an area where a uniform determination is desirable. No fixed formula exists for determining when the doctrine of primary jurisdiction should be applied.[21]
And as the Supreme Court observed in another case:
`Primary jurisdiction' ... applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended...
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...under LUPA, a party seeks judicial review by asking the superior court to exercise appellate jurisdiction. Chaney v. Fetterly, 100 Wash. App. 140, 142 n. 2, 995 P.2d 1284, review denied, 11 P.3d 824 (2000). This appellate jurisdiction is not properly invoked unless all statutory procedural ......
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...under LUPA, a party seeks judicial review by asking the superior court to exercise appellate jurisdiction. Chaney v. Fetterly, 100 Wash.App. 140, 142 n. 2, 995 P.2d 1284, review denied, 11 P.3d 824 (2000). The court may affirm or reverse the land use decision under review or remand the deci......
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Table of Cases
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