Lange v. Clallam Cnty., Corp.
| Decision Date | 15 July 2014 |
| Docket Number | No. 44476-3-II,44476-3-II |
| Court | Washington Court of Appeals |
| Parties | SCOTT K. LANGE and ELIZABETH R. LANGE, husband and wife, and Trustees of the Lange Family Trust, Appellants, v. CLALLAM COUNTY, a municipal corporation; SHEILA ROARK MILLER, DIRECTOR OF COMMUNITY DEVELOPMENT, Respondents. |
WORSWICK, J. — Scott and Elizabeth Lange (collectively, Lange) applied for a writ of mandamus compelling Clallam County officials to investigate their neighbor's property and determine whether its structures violated code requirements. After issuing the writ, the superior court granted the County's motion to quash the writ and dismissed Lange's action. Lange appeals, arguing that the superior court erred by (1) quashing the writ and (2) failing to award him attorney fees and costs. Because most of Lange's allegations challenged land use decisions reviewable under the Land Use Petition Act,1 and the remaining allegation was an insufficient ground to support the writ, we affirm the superior court's decision to quash the writ.
Lange owned property adjacent to property owned by David and Krisanne Cebelak (collectively, Cebelak). Both properties abutted the shoreline of Clallam Bay. In 1997, 2007, and 2012, Lange challenged building permits issued to Cebelak and also complained to Clallam County that structures on Cebelak's property violated code requirements.
In December 1996, the County issued a building permit to Cebelak for the construction of a single family home with an attached storage building. In May 1997, Lange protested the permit's issuance to the Clallam County Department of Community Development (hereinafter "the Department," unless otherwise specified). Lange alleged, inter alia, that the Department had issued the permits without inspecting the site and that the home was being constructed in violation of setback requirements, building codes, and the Shoreline Management Act.2
The Department's director replied, "The site in question has been inspected numerous times by both the Clallam County Building and Planning Division staff," and that the inspectors found that the project met all applicable code requirements. Clerk's Papers (CP) at 134. The director further asked Lange to provide any specific information he had to the contrary. Lange later averred3 that he did not pursue his protest further because, based on the director's response, he believed that he could not prevail in a legal challenge. Cebelak's home and storage building were constructed in 1997.
In 1998, the Department granted Cebelak a permit exemption allowing him to construct a bulkhead. Because the bulkhead's value was less than $2,500, the Department concluded thatthe proposal was exempt from the substantial development permit process under former WAC 173-27-040(2)(a) (1997). In addition, the Washington Department of Fish and Wildlife issued a hydraulic project approval for Cebelak's proposed bulkhead. The bulkhead was constructed in 1998.
In December 2006, a major storm damaged the Clallam Bay shoreline and exposed Cebelak's bulkhead. Lange averred that he then became aware of the bulkhead for the first time.
After the storm, Cebelak sought, and the Department of Fish and Wildlife issued, an emergency declaration and a hydraulic project approval authorizing repairs to the bulkhead. Cebelak finished repairing the bulkhead in January 2007.
Also in 2007, Lange filed a six-point complaint with the Department, requesting that it investigate Cebelak's property. Lange claimed that (1) Cebelak failed to obtain permits to construct the storage building; (2) Cebelak misrepresented his intended use of the storage building, which Lange alleged was actually a cabin; (3) Cebelak misrepresented the value of the bulkhead in 1998 to obtain the permit exemption and further constructed the bulkhead in a location that did not comply with setback requirements; (4) Cebelak moved the bulkhead when repairing it in 2006 to a location where it further encroached on the required setback area; (5) Cebelak intentionally misrepresented his lot's size when applying for the 1996 permit to construct his home, and the County improperly granted a variance from setback requirements; and (6) Cebelak violated the terms of a permit exemption relating to construction of the home because the exemption was available for owner-occupied buildings and Cebelak rented the home after construction was complete.
Lange and the Department met to discuss his complaint, and Lange provided supporting documents. The Department's staff reviewed the documents and, accompanied by staff from the Department of Fish and Wildlife, visited Cebelak's property. The Department began to draft a written response to Lange's complaint, but it did not issue a final determination on its merits.4
In 2012, Lange submitted another land use complaint to the Department's director. Lange's complaint alleged that Cebelak's storage building and bulkhead each violated the Clallam County Code (CCC) and other laws. Specifically, Lange alleged that Cebelak's storage building (1) had been constructed without the issuance of required permits, (2) had been constructed in a location that violated shoreline setback requirements, and (3) violated the terms of Cebelak's permit because Cebelak rented it to others rather than living in it himself. With respect to the bulkhead, Lange further alleged that (4) Cebelak constructed the bulkhead in a location that the County's 1998 permit exemption had not approved, (5) Cebelak improperly obtained permits to repair the damaged bulkhead in 2007, and (6) Cebelak failed to obtain other permits that should have been required before repairing the bulkhead. The director declined to investigate or comment on Lange's complaint because it was the subject of pending litigation between Lange and Cebelak and because the County inspected Cebelak's property before issuing permits.
In November 2012, Lange commenced this action against the County in superior court by applying for a writ of mandamus. Lange's application sought a writ compelling the County andthe Department's director "to enforce the [CCC] by investigating the code complaint [filed by Lange in 2012] and provid[ing] a final written decision within 40 days." CP at 7. Lange also requested reasonable and statutory costs including attorney's fees.
The superior court issued the writ,5 commanding the County to (1) investigate and enforce as Lange requested or (2) show cause why it should not do so. The County moved to quash the writ, arguing that mandamus was inappropriate because, inter alia, Lange could have challenged the permitting decisions in a petition brought under the Land Use Petition Act (LUPA), chapter 36.70C RCW.
The superior court joined its show cause order and the County's motion to quash, and both parties submitted supporting declarations with attached exhibits. After the hearing, the superior court quashed the writ and dismissed the case "in light of LUPA." CP at 277.
Lange appeals.
Lange argues that the superior court erred by dismissing this action. We disagree.
A trial court's decision on a motion to quash a writ of mandamus is reviewed as a decision on a CR 12(c) motion for judgment on the pleadings. Bock v. Bd. of Pilotage Comm'rs, 91 Wn.2d 94, 97, 586 P.2d 1173 (1978). However, a motion for judgment on the pleadings must be treated as a motion for summary judgment when "matters outside the pleadings are presented to and not excluded by the trial court." CR 12(c); P.E. Sys., LLC v. CPI Corp., 176 Wn.2d 198, 206, 289 P.3d 638 (2012). Here both parties presented, and the superior court considered,declarations and attached exhibits outside the pleadings. Therefore we review the superior court's decision as an order granting summary judgment.
Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. We review an order granting summary judgment de novo, engaging in the same inquiry as the trial court. TracFone Wireless, Inc. v. Dep't of Revenue, 170 Wn.2d 273, 280-81, 242 P.3d 810 (2010). Thus, we consider the record and draw all reasonable inferences in the light most favorable to the nonmoving party. Schaaf v. Highfleld, 127 Wn.2d 17, 21, 896 P.2d 665 (1995).
Lange primarily argues that the superior court erred by quashing the writ of mandamus. We affirm the superior court, although in part we do so on alternative grounds.
Mandamus is an extraordinary writ that may be issued "to compel the performance of an act which the law especially enjoins as a duty resulting from an office." RCW 7.16A60; Walker v. Munro, 124 Wn.2d 402, 407, 879 P.2d 920 (1994). "[T]he remedy of mandamus contemplates the necessity of indicating the precise thing to be done." Walker, 124 Wn.2d at 407.
Here, Lange's application requested a writ compelling the County and the Department's director "to enforce the [CCC] by investigating [Lange's] code complaint . . . and provid[ing] a written final decision within 40 days." CP at 7. In turn, Lange's code complaint alleged that (1) Cebelak failed to obtain all required permits before constructing the storage building, (2) the County authorized Cebelak to construct the storage building in a location violating shoreline setback requirements, (3) Cebelak violated the terms of his building permits by renting the storage building to other people, (4) Cebelak constructed the bulkhead in a location that theCounty's 1998 permit exemption had not approved, (5) the County improperly issued permits to Cebelak authorizing repairs to the damaged bulkhead in 2007, and (6) Cebelak failed to obtain other necessary permits before repairing the damaged bulkhead.
As a threshold issue, the parties dispute whether LUPA's exclusive remedy provision, RCW 36.70C.030, barred Lange's application for the...
To continue reading
Request your trial