Kanam v. Kmet

Decision Date03 May 2022
Docket Number55861-1-II
Citation508 P.3d 1071
Parties Kurt KANAM, Appellant, v. Peter KMET, City of Tumwater, Respondents.
CourtWashington Court of Appeals

Kurt Kanam (Appearing Pro Se), 2103 Harrison #143, Olympia, WA, 98502, for Appellant.

Michael Joseph Throgmorton, Law, Lyman, Daniel, Kamerrer & Bogdanovi, 2674 Rw Johnson Blvd. Sw, Tumwater, WA, 98512-6111, for Respondent.


Worswick, P.J. ¶1 Kurt Kanam appeals a superior court order dismissing his declaratory judgment action for lack of standing. Kanam sued the City of Tumwater and Mayor Peter Kmet (collectively the City), seeking declaratory judgment to declare invalid two City ordinances and enjoin their enforcement. The superior court dismissed Kanam's lawsuit because he was not a resident, taxpayer, or property owner in Tumwater.

¶2 In the published portion of this opinion, we hold that (1) Kanam does not have taxpayer standing because he is not a resident or property owner in Tumwater and that the City's growth management plan with Thurston County does not confer standing on Kanam. In the unpublished portion, we hold that (2) the City did not concede the allegations in Kanam's complaint by filing a CR 12(b) motion instead of an answer to the complaint, and (3) the court did not display prejudice or violate the appearance of fairness doctrine by not rescheduling a hearing after he twice failed to appear. Accordingly, we affirm.


¶3 Kanam is a resident of Thurston County, but he does not live in Tumwater.1 In September 2019, Kanam wrote a letter to the City stating he desired to purchase a building located at 240 Custer Way in Tumwater. Kanam requested the City confirm that the building could be used for storage. The City promptly responded by letter, stating that use of the building for storage would be a non-conforming use due to zoning changes in 2014. The City cited Tumwater Municipal Code (TMC) section 18.54.70, and said that should Kanam purchase the building and desire to seek a non-conforming use, he could apply for a conditional use permit under chapter 18.56 TMC. Kanam did not purchase the building.

¶4 In September 2020, Kanam sent a letter to the Attorney General's Office (AGO), requesting that the office "take action to prevent any expenditure of public funds to enforce or defend the Tumwater Municipal Code 18.54.070." Clerk's Papers (CP) at 43. The AGO did not take action on Kanam's request.

¶5 In December, Kanam filed a complaint for declaratory and injunctive relief. Kanam claimed he had standing as a taxpayer and as "Private Attorney General." CP at 2. He argued that TMC 18.54.0702 and TMC 18.56.0203 were invalid because "they conflict with the United States and Washington State Constitution, the Thurston County/Tumwater joint comprehensive plan, RCW 43.21, RCW 19.27.095, and are an illegal expenditure of public funds."4 CP at 3.

¶6 The City did not file an answer, but filed a motion to dismiss under CR 12(b), in which it argued that Kanam lacked standing to bring a taxpayer derivative action because he did not allege that he was a Tumwater taxpayer.5 The City also argued that the private attorney general doctrine does not apply in Washington.

¶7 In January 2021, Kanam filed a response to the City's motion to dismiss and moved to amend his complaint. In his response, Kanam argued that he had standing as a Thurston County taxpayer because Tumwater entered into a joint comprehensive plan with Thurston County, which made the Tumwater ordinances Thurston County processes. The City stated it would not oppose Kanam's amendment so long as the superior court was willing to consider the City's pending motion to dismiss, which was scheduled for April 9. In his amended complaint, Kanam reiterated his request for declaratory judgment, removed all reference to the private attorney general doctrine, and stated that he was a "Thurston County citizen and tax payer" and that he was proceeding with a taxpayer derivative lawsuit. CP at 167.

¶8 The City filed an amended motion to dismiss in March. The City argued that to have standing to bring a taxpayer derivative action, Kanam must first allege facts that he is a taxpayer. And because Kanam did not allege he was a taxpayer of Tumwater, he did not allege facts sufficient to show that he was a proper party to invoke judicial resolution of the dispute.

¶9 Kanam failed to appear for the April 9 hearing.6 The court set over the hearing to April 16, when the court had scheduled a hearing on Kanam's motion for declaratory judgment and injunctive relief. Kanam again failed to appear. The court denied Kanam's motion for declaratory and injunctive relief, noting that Kanam failed to appear for the hearing.

¶10 The court also granted the City's motion to dismiss. The court explained,

Review of the plaintiff's complaint reveals that Mr. Kanam alleges standing to challenge the City of Tumwater ordinances at issue based solely upon the City of Tumwater's refusal to permit a particular use of a building that Mr. Kanam is interested in purchasing in the City of Tumwater. Mr. Kanam does not allege any current ownership interest in the building, nor does allege that he resides in, or pays taxes to, the City of Tumwater.

CP at 230-31.

¶11 The court continued:

The Court finds: to request judicial review in this case Kanam must first request action by the attorney general and that request must be refused.... And while no showing of injury to the alleged taxpayer serves as an absolute bar, the law still requires a request to the attorney general first.

CP at 231.

¶12 Kanam filed a motion for reconsideration on April 27. He argued that the superior court erred because he had requested action from the attorney general before filing suit and that recent changes were made to the Thurston County/Tumwater joint comprehensive plan before the court's ruling. On March 31, the joint comprehensive plan had been updated to include a policy goal that states: "Ensure the processing of applications for development permits in a timely and fair manner, and coordinate processing between the City of Tumwater and Thurston County to enhance predictability." CP at 263. Kanam argued that this clause, added since his amended complaint, made Tumwater permit processes Thurston County processes, and that he therefore had standing as a Thurston County resident. He further argued he was not given fair notice of the hearings and learned of them only on the day they were scheduled.

¶13 The City responded that Kanam had contacted its offices two days before the April 9 hearing to inquire whether the hearing would be in person or held remotely. The City informed Kanam that the hearing would be held remotely and provided him the call-in information. The City also argued that the Thurston County/Tumwater joint comprehensive plan and its associated changes did nothing to confer standing on Kanam because the joint comprehensive plan does not make him a Tumwater taxpayer. The court denied Kanam's motion for reconsideration.

¶14 Kanam appeals the order granting the City's motion to dismiss and the order denying reconsideration.



¶15 Kanam argues that he has taxpayer standing as a Thurston County taxpayer to challenge Tumwater City ordinances because the Thurston County/Tumwater joint comprehensive plan converted Tumwater City building permit processes into Thurston County processes. Kanam does not allege that he is a Tumwater taxpayer, resident, or property owner, or that he has any interest in the building on Custer Way, other than a speculative one. We hold that Kanam does not have taxpayer standing to sue the City.

A. Legal Principles

¶16 "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 (8th ed. 2004)). Taxpayer standing requires a plaintiff to be a taxpayer, in addition to making a request to the attorney general to take action, and have that request denied. Lee v. State , 185 Wash.2d 608, 615, 374 P.3d 157 (2016). A mere disagreement with governmental action is not enough to confer standing. Lee , 185 Wash.2d at 615, 374 P.3d 157.

¶17 In his amended complaint, Kanam requested declaratory judgment under the Uniform Declaratory Judgments Act (UDJA), chapter 7.24 RCW, and alleged a taxpayer derivative lawsuit. Although Kanam purported to assert two causes of action, "a ‘taxpayer derivative suit’ is not a separate cause of action pursuant to which a party can seek declaratory relief." Pasado's Safe Haven v. State , 162 Wash. App. 746, 752, 259 P.3d 280 (2011). The UDJA is the sole cause of action by which a plaintiff may seek declaratory judgment. Pasado's Safe Haven , 162 Wash. App. at 752, 259 P.3d 280. "Rather than creating a separate cause of action, taxpayer standing principles simply provide a means to establish standing to bring such a claim." Pasado's Safe Haven , 162 Wash. App. at 752-53, 259 P.3d 280 ; see also State ex rel. Tattersall v. Yelle , 52 Wash.2d 856, 861, 329 P.2d 841 (1958). "The two means of establishing standing do not equate to there being two different causes of action." Nw. Animal Rights Network v. State , 158 Wash. App. 237, 247 n. 9, 242 P.3d 891 (2010). Thus, Kanam brought only one cause of action and sought a single remedy: the invalidation of provisions of the TMC. See Pasado's Safe Haven , 162 Wash. App. at 753, 259 P.3d 280.

B. Motion to Dismiss

¶18 Kanam argues that the superior court erred when it dismissed his lawsuit for lack of standing. He argues that he has standing as a taxpayer to challenge provisions of the City's municipal code. We disagree.

¶19 We review de novo an order dismissing a case for lack of standing under CR 12(b)(6). Deegan v. Windermere Real Estate/Ctr.-Isle, Inc. , 197 Wash. App. 875, 884, 391 P.3d 582 (2017). Dismissal under CR 12(b)(6) is proper where "it appears beyond doubt that the plaintiff can prove no set of facts...

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