Friends of N. Spokane Cnty. Parks v. Spokane Cnty., 32056–1–III.

CourtCourt of Appeals of Washington
Writing for the CourtSIDDOWAY
Citation336 P.3d 632,184 Wash.App. 105
PartiesFRIENDS OF NORTH SPOKANE COUNTY PARKS, Appellant, v. SPOKANE COUNTY; Fred Meyer Stores, Inc.; and, Star Saylor LLC, Respondents.
Docket NumberNo. 32056–1–III.,32056–1–III.
Decision Date21 October 2014

184 Wash.App. 105
336 P.3d 632

SPOKANE COUNTY; Fred Meyer Stores, Inc.; and, Star Saylor LLC, Respondents.

No. 32056–1–III.

Court of Appeals of Washington,
Division 3.

Oct. 21, 2014.

Affirmed in part, reversed in part, and remanded.

[336 P.3d 633]

Stephen Kerr Eugster, Eugster Law Office PSC, Spokane, WA, for Appellant.

Ronald Paul Arkills, Michael A. Maurer, Attorney at Law, Spokane, WA, Laura J. Black, Lukins & Annis, P.S., Spokane, WA, for Respondent.


¶ 1 After the Board of County Commissioners of Spokane County (Board) amended its acceptance of dedicated parkland to permit construction of a road serving an adjoining residential development, Friends of North Spokane County Parks, an association

[336 P.3d 634]

of county taxpayers and itself a county taxpayer, challenged the legality of the Board's action. The superior court dismissed Friends' action on standing and substantive grounds, for failure to state a claim on which relief could be granted. Friends appeals the dismissal and the superior court's denial of its motion to disqualify the Spokane County prosecutor from representing an affiliate of the grantor of the parkland.

¶ 2 In concluding that Friends did not have standing, the trial court relied on a decision involving distinguishable facts, whose overly-narrow characterization of taxpayer standing we reject. Friends adequately alleged taxpayer standing under controlling Washington case law. While the trial court properly denied Friends' disqualification motion and correctly dismissed claims alleging breach of trust and an unconstitutional gift of public property, Friends' complaint adequately stated a claim for breach by the county of terms of a 2001 dedication of the parkland. We affirm in part, reverse in part, and remand.


¶ 3 In 2001, in connection with the development by Roundup Company of real property near the corner of U.S. Highway 395 and Hastings Road for construction of a Fred Meyer store, Roundup offered 3.99 acres of undeveloped land directly south of the store site to Spokane County for use as a park. The county was receptive, so in August 2001 the Wilmington Trust Company, which held title to the 3.99 acres as security, conveyed the land to the county. The deed required that the land be held “only as a natural, community, or regional park” and prohibited “vehicular ingress or egress from the property” except from Standard Drive. Clerk's Papers (CP) at 62. The county accepted the donation by resolution, subject to these conditions. After accepting and receiving the property, the county maintained what came to be known as “Freddy Park” as a “natural, unimproved park.” CP at 70.

¶ 4 In 2007, Star Saylor Investments LLC, a private real estate developer that owns property located directly south of Freddy Park, applied to the county for a preliminary plat. A county hearing examiner approved the application subject to conditions, one of which was that before the final platting of the 34th lot, “ ‘the applicant shall secure and construct a second ingress/egress roadway to serve the proposed development.’ ” CP at 5. The condition stated that “ ‘[t]he proposed second access must be dedicated through the park land owned by Spokane County north of the site.’ ” Id. at 5–6.

¶ 5 The county's Board of County Commissioners favored allowing construction of the second ingress/egress roadway through Freddy Park. Out of concern that its authority to approve construction of a road might be questioned in light of the 2001 deed and restrictions, the county asked that Roundup and its affiliates Fred Meyer Inc. and Fred Meyer Stores Inc., whom the county referred to collectively as “the Fred Meyer Parties,” execute an amendment to the 2001 deed allowing the establishment and construction of a public road. The Fred Meyer Parties agreed, but only if the county would represent and defend them in the event of litigation resulting from the amendment. The county agreed that it would. The county and the Fred Meyer Parties then executed an amendment to the restrictions imposed by the 2001 conveyance to permit construction of a road “ ‘as depicted in the attached Exhibit “C” ’ ” to their amendment. CP at 94. Exhibit C depicted the road as follows:


[336 P.3d 635]

CP at 110.

¶ 6 In 2013, Friends of North Spokane County Parks, a nonprofit corporation, sued Spokane County, Fred Meyer Stores Inc. (Fred Meyer), and Star Saylor. It sought a declaratory judgment that the county could not approve construction of a road through Freddy Park, and to enjoin construction. It asserted standing based on the fact that it and its members were Spokane County taxpayers; that its members lived near, and were interested in protecting and preserving the park; and that its request that the state's attorney general take action to prevent the construction had been declined.

¶ 7 Friends' complaint contended that the county commissioners' actions amending the resolution and approving the road were illegal in light of the original deed restrictions, which it alleged the county had no authority to change; that the county had no authority to renege on alleged trust duties; that the amendment could not be effective because, according to records of the county, the original grantor, Wilmington Trust, no longer existed as an entity; and that for the county to provide Star Saylor with a road through Freddy Park would constitute a gift of public property or funds in violation of article VIII, section 7 of the Washington Constitution.

¶ 8 Star Saylor soon moved the trial court to dismiss the complaint pursuant to CR 12(b)(6) for failure to state a claim on which relief could be granted. After the county and Fred Meyer both appeared through the Spokane County Prosecuting Attorney to join in the motion, Friends moved to disqualify the prosecutor from representing Fred Meyer, alleging a conflict of interest.

¶ 9 The trial court denied Friends' motion to disqualify the county prosecutor and granted Star Saylor's motion to dismiss Friends' complaint. In dismissing the complaint, the court ruled:

1. Friends has not alleged and can not allege that it is: (a) a grantee or grantor; or (b) a successor to a grantee or grantor with respect to the 2001 deed between Wilmington Trust Company and Spokane County.

2. Friends has not alleged and can not allege facts sufficient to confer taxpayer standing because it has not alleged and can not allege a taxpayer cause of action, nor that Friends pays the type of taxes “funding” the project that is the subject matter of this action.

3. Accordingly, Friends does not have standing to pursue Counts 1–5, as alleged in the Amended Complaint.

[336 P.3d 636]

4. Further, Friends has not alleged and can not allege facts sufficient to pursue a claim under Article VIII, section 7 of the Washington State Constitution (Count 6 of the Amended Complaint), because there has been no transfer or public property and there is no donative intent.

CP at 213–14. Friends timely appealed.


¶ 10 Friends assigns error on appeal to the trial court's orders dismissing its complaint under CR 12(b)(6) and denying its motion to disqualify the county prosecutor from representing Fred Meyer. It argues (1) that it has taxpayer standing; (2) that “[u]sing Freddy Park for a roadway would violate the terms of the deed under which the County accepted Freddy Park, which specifically limits the uses of the park”; (3) to use Freddy Park “for a roadway for a private developer ... [or] for any other purpose ... would be a violation of Art. VIII, Section 7”; and (4) the amendment document was “void because the Grantor did not have any interest in the property at the time.” Br. of Appellant at 8. It argues that the county prosecutor should have been disqualified on account of a nonconsentable conflict of interest.

¶ 11 We address the issues in turn.

I. Taxpayer Standing

¶ 12 “Standing is a ‘party's right to make a legal claim or seek judicial enforcement of a duty or right.’ ” State v. Link, 136 Wash.App. 685, 692, 150 P.3d 610 (2007) (quoting Black's Law Dictionary 1442 (8th ed.2004)). “It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers.” Warth v. Seldin, 422 U.S. 490, 518, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

¶ 13 Friends alleged in support of its standing that

7. The membership of Friends consists of state of Washington and Spokane County taxpayers who live near, and are interested in, protecting and preserving Freddy Park.

8. Friends, in its own right, is also a Washington taxpayer to the state and to Spokane County as the result of payment of Washington and Spokane County sales taxes.

9. Plaintiff has made a request of Attorney General of Washington to take the action sought in this case. The essence of the letter is this:

By this letter Friends requests that you take action to prevent Spokane County from violation of law regarding use of Freddy Park for a secondary access road for the benefit of a real estate developer.

10. By letter dated January 17, 2013, the Washington Attorney General, by Jeffrey T. Even, Deputy Solicitor General, declined to take action on Plaintiff's request.

CP at 19–20.

¶ 14 The trial court's reasons for concluding that Friends lacked standing were, again, that it was not a party or a successor in interest to the 2001 deed between Wilmington Trust Company and the county, and it had not and could not allege facts establishing taxpayer standing. Friends concedes it is not a party to the deed. At issue is only whether its complaint supports its taxpayer standing. We review questions of standing de novo. Link, 136 Wash.App. at 692, 150 P.3d 610.

¶ 15 Although the standing doctrine generally “prohibits a litigant who is not adversely affected by a public act or statute...

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  • Friends of N. Spokane Cnty. Parks v. Spokane Cnty., 32056–1–III.
    • United States
    • Court of Appeals of Washington
    • October 21, 2014
    ...184 Wash.App. 105336 P.3d 632FRIENDS OF NORTH SPOKANE COUNTY PARKS, Appellantv.SPOKANE COUNTY ; Fred Meyer Stores, Inc.; and, Star Saylor LLC, Respondents.No. 32056–1–III.Court of Appeals of Washington, Division 3.Oct. 21, 2014.336 P.3d 633Stephen Kerr Eugster, Eugster Law Office PSC, Spoka......

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