Cleve v. Town of Eatonville, No. 34258-8-II (Wash. App. 11/14/2006)
| Decision Date | 14 November 2006 |
| Docket Number | No. 34258-8-II.,34258-8-II. |
| Court | Washington Court of Appeals |
| Parties | STEVEN VAN CLEVE, Petitioner, v. TOWN OF EATONVILLE, Respondent. |
Appeal from Pierce County Superior Court. Docket No: 05-2-07634-3. Judgment or order under review. Date filed: 12/09/2005. Judge signing: Honorable Sergio Armijo.
Counsel for Appellant(s), William F Wright, Attorney at Law, Seattle, WA.
Counsel for Respondent(s), Robert Eugene Mack, Smith Alling Lane, Tacoma, WA.
Edward Greely Hudson, Smith Alling Lane, Tacoma, WA.
Steven Van Cleve sued the Town of Eatonville, requesting that the trial court void a Town resolution that authorized the sale of 3.08 acres known as Van Eaton Park. The Town sold the property and moved for summary judgment, claiming that the sale mooted Van Cleve's suit and that Van Cleve failed to establish that the property was dedicated to public use.1 For the first time on appeal, the Town also argues that the trial court lacked jurisdiction to grant Van Cleve relief because he failed to join all necessary parties. The trial court granted the Town summary judgment and Van Cleve appeals.
We hold that this case is not moot and that a genuine issue of material fact exists precluding summary judgment — whether an implied common law dedication was created. But we also hold that Van Cleve failed to join all necessary parties. Because the Town raised this issue for the first time on appeal, however, we decline to dismiss the action and instead remand to the trial court with instructions that it dismiss the action unless all necessary parties are joined within 90 days from mandate of this opinion.
The Eatonville Town Council passed Resolution 2005-O, which declared that 3.08 acres of land located on Orchard Avenue2 was surplus and authorized advertising to sell the land. The Town planned to sell the 3.08 acres to fund its purchase and development of an urban park. The Town's 1993 Comprehensive Plan (the Plan), in effect when Resolution 2005-O was adopted, referred to the 3.08 acres as undeveloped parkland and included this property in the Town's inventory of parks and recreation.
Van Cleve, a Town resident, filed a complaint for declaratory judgment against the Town, requesting that the trial court declare Resolution 2005-O void and without legal basis or effect. He asserted that the Town, through implied common law dedication, had dedicated the 3.08 acres to public use as a park and was prohibited from selling it.
Two months later, the Town revised the Plan and re-designated the 3.08 acres as single family residential. The Town then sold the 3.08 acres to an unknown purchaser or purchasers.3
Van Cleve obtained a trial date and requested a six-person jury. The Town moved for summary judgment, arguing that the case was moot because the land had been sold and that Van Cleve failed to establish that the 3.08 acres was dedicated to public use. The trial court granted summary judgment, stating that for "reason of mootness and on the merits . . . summary judgment is granted as requested." Clerk's Papers (CP) at 299-301. Van Cleve appeals.4
The Town asserts that Van Cleve's appeal is moot because the 3.08 acres have been sold.5 An appeal is moot where it presents purely academic issues and where it is not possible for the court to provide effective relief. City of Sequim v. Malkasian, 157 Wn.2d 251, 258-59, 138 P.3d 943 (2006). When an appeal is moot, it should be dismissed. Klickitat County Citizens Against Imported Waste v. Klickitat County, 122 Wn.2d 619, 631, 860 P.2d 390, 866 P.2d 1256 (1993). But this case is not moot. Van Cleve's motion for declaratory judgment seeks to clarify whether the Town had authority to declare the property surplus and authorize its sale. If the Town did not have the authority to sell the 3.08 acres, then the sale would be invalid and void. See Donald v. City of Vancouver, 43 Wn. App. 880, 886, 719 P.2d 966 (1986). Thus, the underlying issue of whether the Town had authority to sell the 3.08 acres is not moot.
Van Cleve maintains that summary judgment was improper because he presented sufficient evidence to show that genuine issues of material fact exist as to whether the Town intended to dedicate the 3.08 acres and whether the public accepted the dedication — the essential elements of a dedication claim.
We perform the same inquiry as the trial court when reviewing an order for summary judgment. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). Summary judgment is appropriate only if the moving party demonstrates that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c); Atherton Condo. Apartment-Owners Ass'n Bd. of Dir. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990). We consider all facts in the light most favorable to the nonmoving party; the nonmoving party here is Van Cleve. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005).
A dedication is the devotion of property to a public use. Donald, 43 Wn. App. at 885. Dedication may be accomplished under statute or at common law. Donald, 43 Wn. App. at 885. An imperfect statutory dedication may be validated by fulfilling the requirements for a common law dedication. Sweeten v. Kauzlarich, 38 Wn. App. 163, 167, 684 P.2d 789 (1984); 11A Eugene McQuillin, The Law of Municipal Corporations § 33.05, at 327 (3rd ed. 2000). This is because statutory dedication operates as a grant, while common law dedication operates through a theory of equitable estoppel. See Sweeten, 38 Wn. App. at 167-68.
A common law dedication may be either express or implied. Richardson v. Cox, 108 Wn. App. 881, 890-91, 26 P.3d 970 (2001), review denied, 146 Wn.2d 1020 (2002). An implied common law dedication requires no particular formalities, but is found only if the plaintiff proves by clear and convincing evidence that (1) the owner, through a clear and unmistakable act, manifested the intent to dedicate its land to public use; and (2) the public accepted the owner's offer. Donald, 43 Wn. App. at 885 (outlining elements); Knudsen v. Patton, 26 Wn. App. 134, 141, 611 P.2d 1354, review denied, 94 Wn.2d 1008 (1980) (); Karb v. Bellingham, 61 Wn.2d 214, 218-19, 377 P.2d 984 (1963) (); City of Seattle v. Hill, 23 Wash. 92, 97, 62 P. 446 (1900) ().
The owner's intent may be shown by any act that positively and unequivocally indicates its intention. Hill, 23 Wash. at 97. Evidence of this intent may include a showing that the public generally used the property, paid taxes, or improved the land, or that the governmental entity recognized or claimed the land as public land. Knudsen, 26 Wn. App. at 142; also see Spencer v. Town of Arlington, 49 Wash. 121, 123, 94 P. 904 (1908).
Public acceptance may be proved by an express act, implication from the acts of municipal officers, or implication when the public uses the property for the purposes for which it was dedicated. City of Spokane v. Catholic Bishop of Spokane, 33 Wn.2d 496, 503, 206 P.2d 277 (1949). The plaintiff need not show that a certain number of people used the property for a set period of time, but must merely show that those persons who might naturally be expected to enjoy the dedication have used it to their pleasure or advantage. Catholic Bishop of Spokane, 33 Wn.2d at 504.
A genuine issue of material fact exists regarding the Town's intent to dedicate the 3.08 acres as a public park. The Town's 1993 Plan includes the 3.08 acres in the Town's parks and recreation inventory. The Plan states, in relevant part, that the Town is served by "undeveloped parkland known as VanEaton Parkland" and hints that the area will be "developed . . . [to] offer[] a good view of the Town and surrounding area." CP at 76. The Plan also includes a map entitled "Eatonville Parks" that labels the 3.08 acres as a park. CP at 77.
Van Cleve also submitted 11 declarations to support this element of his claim. In these declarations: (1) nine former town council members6 stated that the Planning Commission discussed the status of the 3.08 acres and intended to protect the land from sale by dedicating it as public park land in the 1993 Plan; (2) Kirk Heinz, mayor in 1994, declared that the Plan included the 3.08 acres as dedicated park land and that the 1993 Plan reflected his, and the Town Council's, intent to dedicate the land as a public park; and (3) Harold Parnell, mayor from 2002-04, declared that it was his understanding that the Plan dedicated the property as a park.
Van Cleve also offered three declarations to show that the Town manifested its intent that the property be a public park by improving and maintaining the 3.08 acres. Van Cleve declared that the property was undeveloped and unusable for public recreation until 2000. Stephen Cossalman declared that in 2000, the mayor had the 3.08 acres cleared of scrub alder and brush to open up a view of Mount Rainier, taking "particular pains to leave a few majestic mature trees to enhance the beauty of the park vista." CP at 174. According to Cossalman, the Town had the grass mowed for the next four years. Cossalman also stated that in 2004, Mayor Rath hired a bulldozer to clean up the blackberry brush and scrub alders, further opening up the view. And Jacqualin Parnell declared that the Town mowed and maintained the 3.08 acres for access by citizens, but discontinued the practice when it put the property up for sale.
The Town asserts that this evidence is insufficient, pointing to its own evidence, which contradicts or may ultimately...
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