South Hollywood Hills Citizens Ass'n for Preservation of Neighborhood Safety and Environment v. King County

• Decision Date: 02 February 1984
• Docket Number: No. 49250-6,49250-6
• Parties: SOUTH HOLLYWOOD HILLS CITIZENS ASSOCIATION FOR the PRESERVATION OF NEIGHBORHOOD SAFETY AND the ENVIRONMENT, Respondent, v. KING COUNTY, a municipal corporation; King County Council; King County Zoning and Subdivision Examiner Robert E. Beaty; Burnstead Construction Co.; David A. Mowat and Linda N. Mowat, husband and wife, and their marital community, Petitioners.
• Court: Washington Supreme Court

Page 68

101 Wn.2d 68

677 P.2d 114

SOUTH HOLLYWOOD HILLS CITIZENS ASSOCIATION FOR the PRESERVATION OF NEIGHBORHOOD SAFETY AND the ENVIRONMENT, Respondent, v. KING COUNTY, a municipal corporation; King County Council King County Zoning and Subdivision Examiner Robert E. Beaty Burnstead Construction Co.; David A. Mowat and Linda N Mowat, husband and wife, and their marital community, Petitioners.

No. 49250-6.

Supreme Court of Washington En Banc.

Feb. 2, 1984.

Norman K. Maleng, King County Prosecutor, Stephen O. Kenyon, Deputy Pros. Atty., Haggard, Tousley & Brain, Joel Haggard, Timothy Black, Seattle, for petitioners.

Diamond & Sylvester, James M. Thomas, Seattle, for respondent.

ROSELLINI, Justice.

Respondent, South Hollywood Hills Citizens Association for the Preservation of Neighborhood Safety and Environment (Association), sought a writ of review challenging the King County Council's approval of a plat. The trial court ruled that the Association had failed to exhaust administrative remedies and had untimely joined indispensable parties. It dismissed the writ, the Court of Appeals reversed and we granted review. The decision of the Court of Appeals is reversed. South Hollywood Hills Citizens Ass'n v. King Cy., 33 Wash.App. 169, 653 P.2d 1324 (1982).

I

This dispute arises from the following facts:

The Association is composed of individual families who reside in an unincorporated area of King County between Redmond and Woodinville. The Association was formed after the individuals learned that a subdivision (Bristol View) of about 40 homes was planned for the neighborhood. The instant case arises from the Association's attempts to stop the Bristol View development. Burnstead Construction Company (Burnstead), the original owner of the property in question, first filed the preliminary plat in early 1978. The April 12, 1978 edition of The Daily Journal-American contained notice of the public hearing to consider the proposal. That hearing was held on May 4, 1978. In addition, 2 weeks before the hearing, three notices were posted on the property itself.

Burnstead then filed the necessary documents. The King County Department of Public Health, expressing concern over the development's sewage system, asked for a revised preliminary plat. The hearing was continued until August 27, 1979 to allow for the preparation of the new proposal. At the continued hearing, Burnstead submitted a revised plat which provided that the development would take place in two parts denominated Bristol View One and Two.

After the public hearing in August 1979 (at which no one testified), the hearing examiner forwarded his recommendation to the King County Council. The recommendation approved the plat proposal for Bristol View One. No appeal was taken from this ruling. The King County Council granted preliminary conditional approval of the plat on October 15, 1979.

In May 1980, Burnstead submitted the plat for Bristol View Two. An additional public hearing was scheduled for July 17, 1980. Notice of this hearing was published on June 25 in the Northshore Citizen. Although the Association was not in existence at the time of this hearing, several individuals who later became members were present and given the opportunity to express their views regarding the subdivision. These individuals, including the Association's attorney, were sent, by certified mail, copies of the hearing examiner's recommendation in favor of the development. Along with the recommendation, these individuals received the following notice:

NOTICE OF RIGHT TO APPEAL

Pursuant to Chapter 20.24.190 of the King County Code, notice of appeal must be filed in writing on or before August 27, 1980. If a notice of appeal is filed, the original and 15 copies of a written appeal statement specifying the basis for the appeal and arguments in support of the appeal must be filed with the Clerk of the King County Council on or before September 3, 1980. If no written appeal statements or arguments are filed within 21 calendar days of the date of this Report and Recommendation, the Clerk of the Council shall place a proposed ordinance which implements the Examiner's recommended action on the agenda of the next available Council meeting.

Notice that King County Council Ordinance No. 4461 has made the timely filing of written appeal arguments a jurisdictional requirement for consideration of an appeal by the Council.

Pursuant to Chapter 20.24.210 of the King County Code: "Action of the Council Final. The action of the Council approving or rejecting a decision of the Examiner shall be final and conclusive unless within twenty (20) days from the date of the action, an aggrieved party or person obtains a writ of certiorari from the Superior Court in and for the County of King, State of Washington, for the purpose of review of the action taken."

Clerk's Papers, at 121. No appeal was filed and on September 2, 1980, the King County Council granted preliminary approval of Bristol Two.

On September 11, 1980, the Association applied for a writ of review. The original pleadings failed to name the project applicant, Burnstead, and the action was dismissed. Respondent corrected this oversight by filing an amended Application for Writ of Review, naming Burnstead but not the property owners, David and Linda Mowat. After the 30-day appeal period had expired, the Association's attorney learned that the property had been sold to the Mowats in July 1980. The Mowats' real estate contract had been properly filed prior to the time the Association filed its original pleadings but counsel apparently did not attempt to ascertain ownership of the property in question. Counsel then filed an amended complaint naming the Mowats and sought to have it relate back to the date of the original pleading.

The trial judge dismissed the Association's action, holding that (1) the Association had failed to exhaust its administrative remedies by not appealing the hearing examiner's recommendation and (2) that the failure to join the Mowats, who are admittedly indispensable parties by virtue of their ownership of the property, was inexcusable neglect which prevented the relationship back of the amendment.

The Court of Appeals reversed the trial court as to the Bristol Two development, holding that the Association did not need to exhaust the administrative remedies because the hearing examiner's recommendation was not final. The court also ruled that the failure to name the Mowats prior to the expiration of the appeal period was not inexcusable neglect. We granted King County's petition for review. We hold the Court of Appeals erred on both issues and reverse.

II

The doctrine of exhaustion of administrative remedies is well established in Washington. The rule provides that "[i]n general an agency action cannot be challenged on review until all rights of administrative appeal have been exhausted." Spokane Cy. Fire Protection Dist. 9 v. Spokane Cy. Boundary Rev. Bd., 97 Wash.2d 922, 928, 652 P.2d 1356 (1982). The test for imposition of the doctrine was spelled out recently in State v. Tacoma-Pierce Cy. Multiple Listing Serv., 95 Wash.2d 280, 622 P.2d 1190 (1980). There, the court said:

[A]dministrative remedies must be exhausted before the courts will intervene: (1) "when a claim is cognizable in the first instance by an agency alone"; (2) when the agency's authority " 'establishes clearly defined machinery for the submission, evaluation and resolution of complaints by aggrieved parties' "; and (3) when the "relief sought ... can be obtained by resort to an exclusive or adequate administrative remedy".

95 Wash.2d at 284, 622 P.2d 1190 (quoting from Retail Store Employees Local 1001 v. Washington Surveying & Rating Bureau, 87 Wash.2d 887, 906-07, 909, 558 P.2d 215 (1976).)

The principle is founded upon the belief that the judiciary should give proper deference to that body possessing expertise in areas outside the conventional experience of judges. Retail Employees, at 906, 558 P.2d 215. The underlying policy which supports the doctrine was discussed in McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969). There, the court observed that the doctrine (1) insured against premature interruption of the administrative process; (2) allowed the agency to develop the necessary factual background on which to base a decision; (3) allowed exercise of agency expertise in its area; (4) provided a more efficient process; and (5) protected the administrative agency's autonomy by allowing it to correct its own errors and insuring that individuals were not encouraged to ignore its procedures by resorting to the courts.

Washington courts have recognized exceptions to the exhaustion requirement in circumstances in which these policies are outweighed by consideration of fairness or practicality. For example, if resort to the administrative procedures would be futile, exhaustion is not required. Zylstra v. Piva, 85 Wash.2d 743, 539 P.2d 823 (1975). Similarly, if the party is challenging the constitutionality of the agency's action or of the agency itself, the exhaustion requirement will be waived. Ackerley Communications, Inc. v. Seattle, 92 Wash.2d 905, 602 P.2d 1177 (1979) cert. denied, 449 U.S. 804, 101 S.Ct. 49, 66 L.Ed.2d 7 (1980); Higgins v. Salewsky, 17 Wash.App. 207, 562 P.2d 655 (1977). Also, if the aggrieved party has no notice of the initial administrative decision or no opportunity to exercise the administrative review procedures, the failure to exhaust those procedures will be excused. Gardner v. Pierce Cy. Bd. of Comm'rs, 27 Wash.App. 241, 243-44, 617 P.2d 743 (1980).

Respondent urges that it should not be barred from seeking judicial review because it did not receive adequate notice of the hearings. Since the Association was not in existence at the time, the adequacy of the notice given in this case must be examined in light of the notice given to the Association's members. We find that...