Leavitt v. Jefferson County, 15203-7-II
| Decision Date | 28 June 1994 |
| Docket Number | No. 15203-7-II,15203-7-II |
| Citation | 74 Wn.App. 668,875 P.2d 681 |
| Parties | Dale E. LEAVITT and William D. Leavitt, a marital community; and Stan N. Johnston and Candis L. Johnston, a marital community, Respondents, v. JEFFERSON COUNTY and the Jefferson County Board of Commissioners, Appellants. |
| Court | Washington Court of Appeals |
Mark L. Huth, Pros. Atty., Port Townsend, for appellants.
Erwin P. Jones, Sequim, for respondents.
The Clallam County Superior Court vacated and declared void the Jefferson County Development Code (Code), concluding that in enacting the Code, Jefferson County (County) violated the State Environmental Policy Act of 1971 (SEPA), RCW 43.21C, and the Planning Enabling Act, RCW 36.70. Jefferson County appeals; we reverse.
The Jefferson County Board of County Commissioners (Board) adopted the Code on October 16, 1989. The Code is a county-wide zoning or land use regulation that serves as an "official control", RCW 36.70.550, and implements the Jefferson County Comprehensive Plan.
In 1982 the Jefferson County Planning Commission (Commission), a citizen body that assists the Jefferson County Planning Department (Department), began drafting a development code. The Commission worked at this task over a 6-year period, incorporating comments it obtained from the public at numerous public meetings and hearings. Finally, on September 28, 1988, the Commission referred the draft code to the Board for its review and consideration, without recommending its adoption. See RCW 36.70.600 to .610.
Upon receipt of the draft, the Board proceeded as if it were initiating consideration of an official control ordinance under RCW 36.70.640. First, it referred the draft back to the Commission for a report. When the Commission completed its report, the Board and Commission held a joint public workshop in January 1989. The Board then compiled a list of proposed changes to the draft code and scheduled four public hearings throughout the county. The published notices for the hearings included a summary of the draft code.
The Board conducted the public hearings in June 1989, and accepted written comments until the end of June. The Board and the Department then further revised the draft code in light of the public comments. At its public meeting on September 19, 1989, the Board discussed the draft and made still further revisions.
Meanwhile, the Director of the Department prepared an environmental checklist assessing the proposed code's environmental impacts. At the Board's September 25, 1989, meeting, the Director reviewed the checklist and advised the Board that the Code, by implementing the County's Comprehensive Plan, would significantly affect land use throughout Jefferson County, including environmentally sensitive areas. The checklist itself indicates the Code would beneficially impact the environment, including environmentally sensitive areas. Nothing in the checklist or in the Director's review suggested the Code would negatively impact the environment. The Board issued a determination of nonsignificance (DNS) for the draft, ending SEPA review of the proposed Code.
When the Department and the Board completed the revisions, the Board published the entire proposed ordinance as an insert in the October 4, 1989, county newspaper. A development code map, published along with the draft code, contained a notation that the map was not "parcel specific".
At its October 1989 public meeting, a member of the Board proposed four additional revisions to the draft code as published in the newspaper insert. According to the minutes of the meeting:
Commissioner Dennison stated.... There are a couple of sections in the Code that have been misunderstood. The wording of the section may not reflect the intent of the section. Commissioner Dennison then proposed four amendments to the code for clarification....
The Board then voted to adopt the Code with the four additional amendments. Later in the meeting, the Jefferson County Prosecuting Attorney gave his opinion that "the Board was proper in amending the language of the Development Code Ordinance before adoption since there was no substantive change[ ] in the Ordinance."
Dale Leavitt 1 filed a petition for a statutory writ of certiorari, RCW 7.16.040, on November 1, 1989, seeking review of the Board's adoption of the Code. Leavitt alleged denial of due process and violations of the Planning Enabling Act, the public disclosure act, SEPA, and the open public meetings act. The Clallam County Superior Court issued the writ, and in August 1991 vacated the Board's action, and declared the Code null and void. Jefferson County appeals.
On appeal, the County argues that the superior court lacked authority to review the Board's legislative act of adopting the Code pursuant to a statutory writ of certiorari. Leavitt responds, citing RAP 2.5(a), that we should not consider this issue because the County failed to raise it below and, furthermore, conceded before the trial court that review by statutory certiorari was appropriate.
It appears that the County did not dispute the propriety of the writ below because, at the time, the case of Byers v. Board of Clallam Cy. Comm'rs, 84 Wash.2d 796, 797, 529 P.2d 823 (1974), seemed to control. However, while this appeal was pending the Supreme Court decided Raynes v. Leavenworth, 118 Wash.2d 237, 243-45, 821 P.2d 1204 (1992). As we discuss below, Raynes clarifies the appropriate use of the statutory writ of certiorari and limits the applicability of Byers.
Although RAP 2.5(a) authorizes the appellate court to refuse to review any claim of error not raised in the trial court, an exception explicitly allows a party to raise the issue of lack of trial court jurisdiction for the first time on appeal. RAP 2.5(a)(1). That is exactly the claim that the County makes here; that the trial court exceeded its jurisdiction when it reviewed a legislative act by means of a statutory writ of certiorari. See Okanogan Cy. Sch. Dist. 400 v. Andrews, 58 Wash.2d 371, 376, 363 P.2d 129 (1961); Bridle Trails Comm'ty Club v. Bellevue, 45 Wash.App. 248, 252, 724 P.2d 1110 (1986). Thus, RAP 2.5(a) does not preclude our review of the propriety of certiorari; rather it mandates review.
In Raynes, the Supreme Court clarified the criteria for issuing a statutory writ in the context of a zoning case. Applying the Raynes test, we find merit in Jefferson County's jurisdictional argument.
RCW 7.16.040 states a court may grant a statutory writ of certiorari
when an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction of such tribunal, board or officer, or one acting illegally, or to correct any erroneous or void proceeding, or a proceeding not according to the course of the common law, and there is no appeal, nor in the judgment of the court, any plain, speedy and adequate remedy at law.
Generally, the statutory writ is available only to review actions judicial in nature. Raynes, 118 Wash.2d at 243-44, 821 P.2d 1204. However, some authority suggests that a court may review a zoning matter legislative in nature. See Byers, 84 Wash.2d at 797, 800, 802, 529 P.2d 823.
Plaintiffs in Raynes sought a writ of review to challenge an amendment to a city zoning code. 118 Wash.2d at 240-42, 821 P.2d 1204. The trial court denied the writ on the basis that the City Council's actions were legislative, not judicial. 118 Wash.2d at 242, 821 P.2d 1204. The Supreme Court affirmed, stating, "The trial court was correct, then, when it determined that since the action was legislative, no writ should issue." 118 Wash.2d at 245, 821 P.2d 1204.
The Raynes court first notes that courts must afford great deference to legislative actions to prevent substitution of judicial judgment for the decisions of elected officials and to preserve the separation of powers. 118 Wash.2d at 243, 821 P.2d 1204. It then restates the 4-part test courts use to determine whether a particular decision is quasi-judicial or legislative. Although this is not a rigid or conclusive test, see 118 Wash.2d at 243, 244, 821 P.2d 1204 in general an administrative decision sufficiently resembles a judicial action to allow issuance of a writ if
(1) ... the court could have been charged with the duty at issue in the first instance; (2) ... the courts have historically performed such duties; (3) ... the action of the municipal corporation involves application of existing law to past or present facts for the purpose of declaring or enforcing liability rather than a response to changing conditions through the enactment of a new general law of prospective application; and (4) ... the action more clearly resembles the ordinary business of courts, as opposed to those of legislators or administrators.
(Omissions ours.) 118 Wash.2d at 244-45, 821 P.2d 1204 (quoting Standow v. Spokane, 88 Wash.2d 624, 631, 564 P.2d 1145, appeal dismissed, 434 U.S. 992, 98 S.Ct. 626, 54 L.Ed.2d 487 (1977)); see also RCW 7.16.120 ().
The Board's action here could scarcely be more legislative. The Board enacted a county-wide development code of general and prospective application; Jefferson County previously had no development code. A court could not initially have enacted the Code, nor have courts historically performed such functions. The Board was making public policy based in part on public hearings and comments, not applying existing law; this is not the ordinary business of courts but of legislatures. The Raynes court found a zoning amendment affecting only 38 of 616 acres and allowing a use sought by specific persons to be legislative, 118 Wash.2d at 239-42, 245, 821 P.2d 1204; Jefferson County's adoption of its county-wide Code is even more distinctly dissimilar from proceedings historically performed by courts and from actions resembling the ordinary business of courts.
Nonetheless, Leavitt, relying on Byers,...
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