Deschenes v. King County

• Decision Date: 09 May 1974
• Docket Number: No. 43005,43005
• Citation: 83 Wn.2d 714,521 P.2d 1181
• Parties: Veral E. DESCHENES et al., Appellants, v. KING COUNTY and Bertil J. Carlson, Respondents.
• Court: Washington Supreme Court

Page 714

83 Wn.2d 714

521 P.2d 1181

Veral E. DESCHENES et al., Appellants, v. KING COUNTY and Bertil J. Carlson, Respondents.

No. 43005.

Supreme Court of Washington, En Banc.

May 9, 1974.

Montgomery, Purdue, Blankinship & Austin, John D. Blankinship, Seattle, for appellants.

Christopher T. Bayley, Pros. Atty., John E. Keegan, Deputy Pros. Atty., Julin, Fosso & Sage, James D. McBride, Seattle, for respondents.

WRIGHT, Associate Justice.

Respondent Bertil J. Carlson sought and obtained from King County a conditional use permit to construct a dog kennel near the Snoqualmie River in the vicinity of Fall City. After the zoning adjuster approved the permit subject to 7 conditions, appellant Veral E. Deschenes and John D. Blankinship (who is not here an appellant) appealed to the King County Board of Appeals. The board sustained the decision of the adjuster on February 21, 1973.

Nineteen days later, March 12, 1973, the present appellants, all owners of nearby property, attempted to institute an action in the King County Superior Court for a writ of certiorari and also seeking a declaratory judgment and an injunction. On April 24, 1973, the superior court granted a motion for summary judgment of dismissal, upon the sole ground the matter was not commenced in superior court within the time provided by law.

The order of dismissal was based on section 21.58.130 of the King County code which provides:

Effective date of decision--Time for appeal. The decision of the board of appeals shall be final and conclusive unless within ten days from the date of said action the original applicant or an adverse party files an appeal to the superior court for a writ of certiorari, a writ of prohibition or a writ of mandamus. The filing of such appeal within such time limit shall stay the effective date of the order of the board of appeals until such time as the appeal shall have been adjudicated or withdrawn.

Appellants contend that the above quoted section was repealed by the adoption of the King County home rule charter and never effectively reenacted. Although that is the principal thrust of appellants' arguments, they also contend they are seeking declaratory judgment and injunction which are not controlled by the provision of the code above quoted. Appellants further contend that a county ordinance can not restrict the scope of judicial review, and that some of appellants did not have notice of the action of the board of appeals.

Appellants further contend the provisions of the State Environmental Policy Act (RCW 43.21C) and the Shoreline Management Act of 1971 (RCW 90.58) were not considered. The last mentioned contentions are not properly before the court. The only question at this stage of the proceeding is whether the superior court acquired jurisdiction.

The rule is well known and universally respected that a court lacking jurisdiction of any matter may do nothing other than enter an order of dismissal. 21 C.J.S. Courts § 118 (1940).

Although the superior court is a court of general jurisdiction, this is a special proceeding in which the court is acting in an appellate capacity. Under such circumstances, the court has only such jurisdiction as is conferred by law. One of the necessary elements to confer appellate jurisdiction upon a court is the giving of a timely notice of appeal. Stark v. Jenkins, 1 Wash.Terr. 421 (1874); Cogswell v. Hogan, 1 Wash. 4, 23 P. 835 (1890); Isom v. Olympia Oil & Wood Products Co., 200 Wash. 642, 94 P.2d 482 (1939). Although the proceeding herein is denominated a writ of certiorari, it is also referred to in the same section of the code as an 'appeal' and a definite time limit is provided. Compliance with such time limit is essential for the court to acquire jurisdiction.

The constitutional provision giving to the superior courts jurisdiction to issue writs, Const. art. 4, § 6, does not prohibit the limitation of the time for seeking such a writ. The rule is recognized in R. Anderson, American Law of Zoning, § 21.15 (1968), as follows:

The Standard State Zoning Enabling Act contains a provision that a petition to review a decision of a board of adjustment 'shall be presented to the court within 30 days after the filing of the decision in the office of the board.' Specific provisions limiting the time within which an aggrieved litigant must perfect an appeal are included in the enabling acts of about two-thirds of the states.

In general, these provisions are included on the assumption that the public interest will be best served by finalizing the decisions of the board and firming-up the rights to develop land at the earliest moment which is consistent with fair process. . . . The time restrictions range from 10 to 60 days, . . .

The time limitations imposed by statute upon the commencement of proceedings to review a decision of a board of adjustment are regarded as mandatory. Failure to initiate proceedings within the time limited by statute results in loss of the right of review.

(Footnotes omitted.)

The contention that some of appellants did not have notice of the action of the board of appeals is without merit. The purpose of time limitations in such matters is to give finality to the actions on zoning matters. If there were not finality, no owner of land would ever be safe in proceeding with development of his property. The provision of King County Code § 21.58.130 does not make any exception to the 10 day limit. To make an exception for anyone who does not receive a formal notice of the board...