City of Federal Way v. King County

• Decision Date: 26 August 1991
• Docket Number: No. 26829-5-I,26829-5-I
• Citation: 62 Wn.App. 530,815 P.2d 790
• Court: Washington Court of Appeals
• Parties: CITY OF FEDERAL WAY, Washington, a municipal corporation, Respondent, v. KING COUNTY, a municipal corporation, Michael E. Davis and Sonja A. Davis, husband and wife, Carroll Nelson and Elizabeth L. Nelson, husband and wife, Mark J. Schoner and Theresa J. Schoner, husband and wife, d/b/a Steel Lake Court III, a joint venture, Alan C. Fox and Jane Doe Fox, husband and wife, and ACF Property Management, Inc., a California corporation, Defendants, Steel Lake Court Associates Limited Partnership, a Washington limited partnership, Appellant.

Page 530

62 Wn.App. 530

815 P.2d 790

CITY OF FEDERAL WAY, Washington, a municipal corporation, Respondent, v. KING COUNTY, a municipal corporation, Michael E. Davis and Sonja A. Davis, husband and wife, Carroll Nelson and Elizabeth L. Nelson, husband and wife, Mark J. Schoner and Theresa J. Schoner, husband and wife, d/b/a Steel Lake Court III, a joint venture, Alan C. Fox and Jane Doe Fox, husband and wife, and ACF Property Management, Inc., a California corporation, Defendants Steel Lake Court Associates Limited Partnership, a Washington limited partnership, Appellant.

No. 26829-5-I.

Court of Appeals of Washington Division 1.

Aug. 26, 1991.

David H. Karlen, Oles, Morrison & Rinker, Seattle, for appellant.

Sandra Driscoll, City Atty., Carolyn A. Lake, Asst. City Atty., City of Federal Way, Federal Way, for respondent.

AGID, Judge.

Steel Lake Court Associates Limited Partnership (SLC) appeals an order of summary judgment invalidating a King County street vacation ordinance and declaring the subject street to be a public right-of-way of the City of Federal Way. SLC contends that the trial court erred in rejecting its assertions that Federal Way's challenge to the validity of the ordinance was untimely and that it failed to join an indispensable party to the lawsuit. We agree with those contentions and order that the action be dismissed.

In the fall of 1989, SLC's predecessor in interest, Steel Lake Court III, filed a petition to vacate an unopened segment of G.W. Foster Road situated in the Federal Way area of what was then unincorporated King County. SLC owned improved property abutting the segment, and some of its improvements were located within or directly next to the road. King County also owned property abutting the unopened road. It appears from the record that the King County Building and Land Development Division issued permits to SLC's predecessor to build in and on the right of way because the road did not appear on any county map. The King County Council found that the proposed vacation did not conflict with the county's comprehensive plan, the road segment had never been opened as a road, and the public would benefit by returning the road to public tax rolls. Accordingly, on February 26, 1990, the council passed an ordinance incorporating these findings and vacating the segment.

Ordinarily, the ordinance would have become effective 10 days after its enactment. King County Charter (KCCh) § 230.70. However, the council caused the vacation ordinance to be effective immediately by appending an emergency provision that stated:

The county council finds as a fact and declares that an emergency exists and that this ordinance is necessary for the immediate preservation of public peace, health or safety or for the support of county government and its existing public institutions.

Two days later, on February 28, 1990, the City of Federal Way was officially incorporated. Had King County not vacated the G.W. Foster Road segment, ownership of the segment would have transferred automatically to Federal Way on its date of incorporation, and the fate of SLC's existing improvements would have become uncertain. RCW 35.02.180. More importantly, had King County not enacted the vacation ordinance as an emergency provision, the ordinance would never have taken effect at all because Federal Way would have acquired title to the segment before the ordinary 10-day-after-enactment effective date of county ordinances.

Federal Way had opposed the street vacation and decided to contest the vacation ordinance. To that end, on April 5, 1990, the city filed a complaint for declaratory judgment seeking a declaration that the ordinance was void, that the road segment was therefore not vacated, and that title to the segment was vested in Federal Way. Federal Way then moved for summary judgment. It contended that the vacation ordinance never went into effect because its emergency clause was invalid. According to Federal Way, the clause was invalid because the ordinance did not recite any of the basic facts which gave rise to the emergency. SLC opposed Federal Way's motion. It argued that the city did not have standing to bring the action, its action was untimely, and in any event, the ordinance was valid. SLC also asked that Federal Way's action be dismissed.

The trial court granted Federal Way's motion and entered an order declaring that the ordinance had never been effective and that the road segment was a Federal Way public right-of-way. SLC appealed. Although we agree with the trial court's conclusion on the effectiveness of the ordinance, this question was not properly before the trial court or this court. Federal Way failed to timely file its challenge to the ordinance and failed to timely join an indispensable party. ¹ Consequently, it is barred from asking the court to review its claim. Stenberg v. Pacific Power & Light Co., 104 Wash.2d 710, 714, 709 P.2d 793 (1985); see also State v. Eppens, 30 Wash.App. 119, 124, 633 P.2d 92 (1981) (in civil context, statute of limitation provides repose and a limitation on remedies).

I. TIMELINESS

On appeal and below, SLC has made two arguments in support of its contention that Federal Way's suit was untimely: (1) the action was in fact a writ of certiorari and should be governed by the same time limits as are applicable to writs; and (2) even if the action was properly filed as a declaratory judgment action, it was still untimely. Only the latter of these contentions is persuasive.

A. Nature of proceeding. In most cases, a writ proceeding is the proper form of action to challenge a land use decision. In certain circumstances, for example when an agency has refused to act on a plat or permit application, a mandamus action under RCW 7.16.160 is appropriate. Norco Constr., Inc. v. King Cy., 97 Wash.2d 680, 649 P.2d 103 (1982); see also Teed v. King Cy., 36 Wash.App. 635, 643, 677 P.2d 179 (1984) and cases there cited. In others, a writ of certiorari obtained under RCW 7.16.040 is properly employed to determine whether the land use decision was made arbitrarily, capriciously, is contrary to law, or is unsupported by the evidence. RCW 7.16.120; see, e.g., Akada v. Park 12-01 Corp., 103 Wash.2d 717, 718, 695 P.2d 994 (1985) ("[c]ertiorari is the appropriate method to review the city council action [issuing a use permit]"); DeWeese v. Port Townsend, 39 Wash.App. 369, 372, 693 P.2d 726 (1984) (certiorari is proper method to initiate review of a road vacation ordinance claimed to be contrary to existing law). ²

Here, Federal Way did not seek a writ, but instead sought relief under the declaratory judgment statute, RCW 7.24. A declaratory judgment is used to determine questions of construction or validity of a statute or ordinance. RCW 7.24.020. It is the proper form of action to determine the facial validity of an enactment, as distinguished from its application or administration. Seattle-King Cy. Coun. of Camp Fire v. Department of Rev., 105 Wash.2d 55, 57-58, 711 P.2d 300 (1985). Ordinarily, if a plaintiff has another completely adequate remedy, he or she "is not entitled to relief by way of a declaratory judgment". Reeder v. King Cy., 57 Wash.2d 563, 564, 358 P.2d 810 (1961); accord Council of Camp Fire, 105 Wash.2d at 58, 711 P.2d 300. Thus, in a typical land use case, e.g., one which challenges the validity of a decision to issue or deny a rezone, plat or development permit, resort to a declaratory judgment procedure is not permitted because the writ of certiorari provides an adequate remedy. ³

Contrary to SLC's assertions, however, this is not a typical land use case. While it does directly affect SLC's use of its land and thus requires prompt adjudication, Deschenes v. King Cy., 83 Wash.2d 714, 717, 521 P.2d 1181 (1974), Federal Way does not challenge the King County Council's interpretation of a statute or ordinance or application of either to a request for a rezone, plat or other permit. It challenges only the facial validity of the emergency provision of the ordinance purporting to vacate a portion of G.W. Foster Road. This is precisely the type of action for which the declaratory judgment form of action was intended. See Council of Camp Fire, 105 Wash.2d at 58, 711 P.2d 300. Thus, we conclude that this case was properly brought as a declaratory judgment action.

Our conclusion is buttressed by the very limited review courts may make of legislative declarations of emergency. The declaration is conclusive and must be given effect unless it is on its face "obviously false and a palpable attempt at dissimulation." In re McNeill, 113 Wash.2d 302, 307, 778 P.2d 524 (1989). To determine the truth or falsity of the declaration, the court will not inquire as to the facts, but must consider the question only from what appears upon the face of the act and its judicial knowledge. State ex rel. Humiston v. Meyers, 61 Wash.2d 772, 778, 380 P.2d 735 (1963); State ex rel. Hoppe v. Meyers, 58 Wash.2d 320, 326, 363 P.2d 121, 100 A.L.R.2d 304 (1961). Thus, courts are prohibited from considering the record below and are restricted to examining the face of the ordinance and considering facts which may be judicially noticed. The writ of certiorari device is, therefore, wholly unsuited to review of an emergency declaration as the writ by definition requires the court to fully examine the record that was before the decision-making body. ⁴ RCW 7.16.120; Chaussee v. Snohomish Cy. Coun., 38 Wash.App. 630, 636, 689 P.2d 1084 (1984).

B. Applicable timeliness provisions. Although we agree with Federal Way that this action was properly brought as a declaratory judgment, this decision has little effect on our timeliness analysis. Neither the statutes governing certiorari nor those governing declaratory judgment proceedings contain timeliness provisions. See RCW 7.16 and 7.24. Washington courts have therefore required that the writ of certiorari be applied for within a "reasonable time"....