Hook v. Lincoln Cnty. Noxious Weed Control Bd.

• Decision Date: 26 January 2012
• Docket Number: No. 29608–3–III.,29608–3–III.
• Citation: 166 Wash.App. 145,269 P.3d 1056
• Court: Washington Court of Appeals
• Parties: Bert HOOK, a single man, Appellant, v. LINCOLN COUNTY NOXIOUS WEED CONTROL BOARD, a Washington subagency; Lincoln County, a Washington municipal corporation, Respondents.

166 Wash.App. 145

269 P.3d 1056

Bert HOOK, a single man, Appellant,

v.LINCOLN COUNTY NOXIOUS WEED CONTROL BOARD, a Washington subagency; Lincoln County, a Washington municipal corporation, Respondents.

No. 29608–3–III.

Court of Appeals of Washington, Division 3.

Jan. 26, 2012.

David P. Boswell, Boswell Law Firm PS, Spokane, WA, for Appellant.

Lee Russell McGuire Jr., Carpenter, McGuire & DeWulf, Jeffrey S. Barkdull, Lincoln County Prosecuting Attorney, Davenport, WA, for Respondents.

SIDDOWAY, J.

[166 Wash.App. 147] ¶ 1 Bert Hook, whose property was subjected to a lien for the cost of weed eradication by the Lincoln County Noxious Weed Control Board, appeals the summary dismissal of his complaint challenging the establishment of the weed control board and its authority to act. He also appeals the trial court's denial of his request to amend his complaint. Finding no error or abuse of discretion, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 In 1969, the legislature enacted chapter 17.10 RCW to protect Washington's agricultural and other resources from the economic loss and adverse effects caused by noxious weeds: plants that, when established, are highly destructive, competitive, or difficult to control. RCW 17.10.007, .010. The legislation, as enacted and later amended, creates a comprehensive scheme for regulating weed eradication, granting authority to county weed control boards, or alternatively the director of agriculture, to conduct searches of private property, issue citations and infractions, directly control the spread of noxious weeds, place liens on property, and otherwise exercise the power and authority created by the legislation. RCW 17.10.074(1)(g), .160–.180, .230, .280–.350.

¶ 3 The legislation created a county noxious weed control board in every county of the state, but at the same time provided that they were “inactive until activated.” RCW 17.10.020. Several events could trigger activation of a county weed control board: the county legislative authority could find a need for activation following a hearing on its own motion or after petitioning by local voters, the state noxious weed control board could order activation in response to a petition by local voters or the noxious weed control board of an adjacent county, or the director of agriculture could order activation in response to a confirmed infestation of class A or class B noxious weeds in the county. RCW 17.10.040. Upon activating a county weed control board, the local legislative authority was required to divide the county into five geographic areas and appoint a representative from each to serve, along with a county extension agent, as initial members of the board. RCW 17.10.050(1). Thereafter, the county legislative authority's ongoing involvement with the county weed control board was generally limited to responding to budget requests from the board, appointing replacements for board members from candidates proposed by the board, and filling board vacancies. RCW 17.10.240, .050(2), (4). Otherwise, the weed control board operated independently, although subject to the provisions of chapter 17.10 RCW, which comprehensively regulates the governance, operation, and authority of activated county boards.

¶ 4 Lincoln County activated its noxious weed control board in 1970. Five days before the public hearing required by RCW 17.10.040, the county's board of commissioners published a notice in the Almira Herald, the Times Publishing Company, the Wilbur Register, and the Odessa Record—all weekly newspapers in Lincoln County. The notice announced the time and place of the planned meeting, and that its purpose was to determine whether there was a need, due to damaging infestation of noxious weeds, to activate the county weed control board.

¶ 5 Following the hearing on March 3, 1970, the county commissioners passed Resolution No. 117286, activating the weed control board. The county commissioners divided the county into five areas as required by statute and appointed a representative from each to serve as a voting member of the weed control board. They also appointed a Lincoln County extension agent.

¶ 6 Thirty-six years later, in August 2006, the weed control board recorded a notice of claim of lien against property owned by Bert Hook in Lincoln County, asserting that labor was performed and material was furnished to eradicate noxious weeds on his property in the sum of $1,066.22 plus interest at the rate of 12 percent per annum. By Mr. Hook's own recount, this was the third time he had been drawn into court proceedings by weed control board action after resisting the penalties imposed on him by the weed control board for about 20 years. Br. of Appellant at 13 & n.4. This time, Mr. Hook responded with the action below, which he commenced in November 2008, seeking a declaration that Resolution No. 117286 was unlawfully enacted and was ineffective. He sought a judgment enjoining the county and the weed control board from acting until validly activated and releasing the lien encumbering his properties. He based his claim that Resolution No. 117286 was void on his contention that it was an exercise of local police power that could not be effective unless enacted with the 10 days' prior notice required by RCW 36.32.120(7).

¶ 7 Mr. Hook used the discovery process to request and review county records. He contends that they reveal extensive irregularities in the governance, operation, and recordkeeping by the weed control board; irregularities that he identified in the trial court below and outlines in his briefing on appeal. Br. of Appellant at 9–13.

¶ 8 In early November 2009, Mr. Hook filed a motion for summary judgment, arguing that there was no genuine issue of material fact and the superior court could determine as a matter of law that Lincoln County was required, but had failed, to comply with RCW 36.32.120(7) in enacting Resolution No. 117286. The county and the weed control board responded with their own motions for judgment on the pleadings or summary judgment.

¶ 9 The cross motions were argued in February 2010, following which the parties requested and were granted leave to file supplemental briefing. After considering the briefing and further argument, the court issued a decision accepting the position of the county and the weed control board. In October 2010, it entered an order granting their motions and denying Mr. Hook's. When the order was presented for entry, Mr. Hook asked for leave to amend his complaint, but without submitting a proposed amended complaint. The court denied the motion.

¶ 10 Mr. Hook moved for reconsideration, rearguing the effectiveness of Resolution No. 117286 and his motion to amend. He also made new arguments that the weed control board had operated “as a little fiefdom, independent of any elected county legislative authority, and in violation of state law” in the years following its activation. Clerk's Papers (CP) at 178. He still submitted no proposed amended complaint.

¶ 11 In December 2010, the trial court denied Mr. Hook's motion for reconsideration, Mr. Hook appealed the initial order and the order on reconsideration.

ANALYSIS

I

¶ 12 Mr. Hook first challenges the trial court's orders denying his motion for summary judgment and granting the county's and the weed control board's motions. He argues that in proposing and passing Resolution No. 117286, the county commissioners “adopted” the noxious weed control regulation set forth in chapter 17.10 RCW, which is a police regulation. He argues that by statute, the county's adoption of such a regulation cannot become effective unless adopted at a public hearing following at least 10 days' notice. RCW 36.32.120(7). It is undisputed that only 5 days' notice was given before the Lincoln County commissioners adopted Resolution No. 117286.

¶ 13 On summary judgment, the moving party bears the initial burden of proving that there is no genuine issue of material fact. Young v. Key Pharm., Inc., 112 Wash.2d 216, 225, 770 P.2d 182 (1989). In this case the parties agreed that the material facts were not in dispute and that the cross motions presented an issue of law as to which summary judgment was appropriate. We review orders granting summary judgment and issues of law de novo. Hisle v. Todd Pac. Shipyards Corp., 151 Wash.2d 853, 860, 93 P.3d 108 (2004); Fed. Way Sch. Dist. No. 210 v. Vinson, 172 Wash.2d 756, 765, 261 P.3d 145 (2011).

¶ 14 The county and the weed control board make a threshold argument that Mr. Hook's challenge to establishment of the weed control board was time barred under RCW 36.32.330, which provides that appeals from a decision or order of a board of county commissioners “shall be taken within twenty days after the decision or order.” But legislation unlawfully adopted and void may be attacked at any time. City of Spokane v. Harris, 25 Wash.App. 345, 348, 606 P.2d 291 (1980) (citing Swartout v. City of Spokane, 21 Wash.App. 665, 674, 586 P.2d 135 (1978), review denied, 91 Wash.2d 1023, 1979 WL 71642 (1979); Puget Sound Alumni of Kappa Sigma, Inc. v. City of Seattle, 70 Wash.2d 222, 422 P.2d 799 (1967)). Insofar as Mr. Hook was challenging the constitutionality of what would be a legislative act if we accepted his characterization, his claim was not time barred.

¶ 15 Article XI, section 11 of the Washington Constitution grants counties and other local governments broad police powers, providing, “Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.”

¶ 16 A county legislative authority enacting a local regulation under the authority granted by the state constitution must do so in accordance with RCW 36.32.120, which provides in part:

The

....

(7) Make and enforce, by appropriate resolutions or ordinances, all such police and sanitary regulations as are not in conflict with state law.

It goes on to provide...