Teed v. King County
| Decision Date | 06 February 1984 |
| Docket Number | No. 11634-7-I,11634-7-I |
| Citation | 36 Wn.App. 635,677 P.2d 179 |
| Parties | Ronald L. TEED and Theresa C. Teed, Husband and wife, d/b/a Island Disposal, Respondents, v. KING COUNTY, Washington, A Municipal Corporation, and the King County Council, Defendants, Vyone Biel, Appellant. |
| Court | Washington Court of Appeals |
Roger M. Leed, Seattle, for appellant.
Cooper & Tobin, William Tobin, Vashon, for respondent Ronald L. Teed.
Norman K. Maleng, King County Pros. Atty., Robert Johns, Deputy Pros. Atty., Seattle, for defendant King County.
Vyone Biel appeals the issuance of a writ of mandamus by the superior court, King County, which required the King County Council to pass an ordinance approving a rezone of certain property owned by Ronald and Theresa Teed alleging as error that the writ of mandamus was not timely filed and that the superior court was without authority to issue such a writ.
The marital community of Ronald L. and Theresa C. Teed operate a garbage disposal business on Vashon Island known as "Island Disposal". The business is operated under the authority of a Certificate of Convenience of Necessity issued by the Washington Utilities and Transportation Commission.
The Teeds acquired a 1.36 acre parcel of land located near 99th Avenue S.W. and S.W. 204th Street on Vashon Island which they presently use for the storage of equipment, including garbage trucks. When they purchased the property, however, it was zoned G (Potential M-L) (General, Potential Light Manufacturing) which does not permit the parking, storage, or repair of heavy equipment, including garbage trucks. "Potential" meant that although the property was not currently suitable for M-L zoning it could be in the future. Due to several warning letters from the Code Enforcement Section of the King County Building and Land Development Division, the Teeds filed for a rezone of the property to M-L on March 21, 1979. An M-L rezone would have permitted the storage of garbage trucks.
On July 25, 1979, a King County zoning and subdivision examiner entered findings of fact and conclusions of law recommending that the property be reclassified as MP-P (Manufacturing Park) in lieu of M-L, subject to certain pre-ordinance and post-ordinance conditions. An MP-P reclassification would permit the Teeds' activities. The pre-ordinance condition required the Teeds to dedicate to King County 20 feet of additional right-of-way along 99th Avenue S.W.
This determination was appealed by neighboring property owners, but on October 22, 1979, the King County Council (County Council) entered a motion concurring with the recommendation of the hearing examiner.
NOW THEREFORE BE IT MOVED by the Council of King County: The reclassification petitioned by ISLAND DISPOSAL ... is approved subject to the pre-ordinance and post-ordinance conditions recommended by the Zoning and Subdivision Examiner's report dated July 25, 1979 and subject to the following additional pre-ordinance condition:
Pre-ordinance Condition No. 2: Within three (3) months from the date of the motion adopting this condition, the applicant shall comply with all requirements of the King County Health Department relating to the applicant's operations at the site regarding the control of flies, rodents, and noxious odors. If the applicant fails to meet this condition, the approval of this reclassification shall lapse and the application shall be denied.
Motion 4566.
On November 5, 1979, the examiner sent a letter to the parties of record indicating the passage of the motion and stating, in part:
The Council will not take final action on the ordinance until the applicant has presented to the Building and Land Development Division ... evidence showing satisfaction of the conditions contained in the Examiner's report, as modified by the Council, which was previously transmitted to parties of record.
On November 9, 1979, Vyone Biel filed a petition for review and a complaint for declaratory relief and for damages and injunctive relief for nuisance alleging that Motion 4566 was not final or, alternatively, was unlawful, erroneous, and void (King County cause 79-2-06747-4). That case is still pending and is not the subject of the instant appeal.
On January 31, 1980, the King County Health Department sent a letter to the King County zoning and subdivision examiner and the Teeds which stated, in part:
It appears that adequate steps have been taken to assure control of any fly, rodent, or noxious odor problem(s) that might occur. No problems of this type were found during our 1/21/80 visit nor have they been reported in previous routine site inspections.
The Teeds then executed a deed on February 5, 1980, in favor of King County for a 20-foot right-of-way along 99th Avenue S.W. which was recorded by King County on April 7, 1980.
On February 8, 1980, a request for reconsideration of Motion 4566 was received by the County Council from property owners adjacent to Island Disposal. Council member Paul Barden proposed Motion 80-924, which would have formally rescinded Motion 4566, based upon the request for reconsideration and questions about whether Island Disposal had complied with Pre-ordinance Condition 2. The County Council, however, decided to consider the issue of the Island Disposal rezone in the context of the Vashon Island Community Plan and Area Zoning (Vashon Island Zoning), then pending before the County Council. The County Council subsequently zoned the Island Disposal property BR-N (Mixed Business-Residential Use, Neighborhood Scale) pursuant to King County Code (KCC) 21.27, as part of the Vashon Island Zoning, adopted by King County ordinance 5522 on June 22, 1981. This zoning does not permit storage and maintenance of garbage trucks.
On July 17, 1981, 25 days after adoption of the Vashon Island Zoning ordinance, the Teeds filed a petition against King County and the King County Council for a writ of mandamus, writ of prohibition, and declaratory judgment. Vyone Biel filed a motion to intervene on August 7, 1981. The superior court on September 10, 1981, entered an Order Granting Motion to Intervene, Granting Writ of Mandamus and Dismissing Petitions for a Writ of Prohibition and a Declaratory Judgment stating, in part:
IT IS HEREBY ORDERED that Vyone Biel's Motion to Intervene is granted, and,
IT IS HEREBY ORDERED that a Writ of Mandamus is issued against King County as follows:
1. The King County Council shall pass an ordinance approving a rezone of the subject property to MP-P subject only to the post ordinance conditions detailed in the report of the King County Zoning and Subdivision Examiner dated July 25, 1979 and adopted by reference in King County Motion 4566.
2. The effective date of said ordinance shall be April 7, 1980, the date on which King County recorded a warranty deed for right-of-way alongside the subject property.
3. Said ordinance shall be deemed to have been in effect from April 7, 1980 until June 22, 1981, at which time the Vashon Area Zoning rezoned the subject property to BR-N-P, rendering Mr. Teed's use of the subject property a legal nonconforming use.
Biel filed a notice of appeal to the Washington Supreme Court which was transferred to this court for review. The primary issue raised is the propriety of the superior court's actions in granting an alternative writ of mandamus. The Teeds have not appealed that portion of the superior court's order which dismissed their petition for a writ of prohibition and a declaratory judgment.
Two issues are presented:
(1) Whether the application for a writ of mandamus was timely filed.
(2) Whether a superior court has the authority to issue a writ of mandamus ordering a local legislative body to adopt a rezone ordinance.
The first issue is whether the application for a writ of mandamus was timely filed.
The record raises questions as to whether the Teeds have fully complied with the pre-ordinance conditions imposed by Motion 4566. Moreover, there is no indication in the record that they ever presented to the Building and Land Development Division, "evidence showing satisfaction of the conditions contained in the Examiner's report, as modified by the Council". They made no attempt to obtain a final determination on their application for a reclassification of the Island Disposal property despite the fact that they were aware of and had ample opportunity to participate in the County Council's consideration of the proposed Vashon Island Zoning. Instead, they sought a writ of mandamus, a writ of prohibition, and declaratory judgment on July 17, 1981, 25 days after the County Council had adopted the Vashon Island Zoning which zoned the Island Disposal property BR-N. This was almost 1 1/2 years after the date on which the pre-ordinance conditions were required to be completed.
The Teeds' contention seems to be that the County Council's actions in adopting the Vashon Island Zoning amounted to final action on their application for a reclassification. KCC 20.24.230. Consequently, their application for a writ of mandamus was subject to any statutory limits for taking appeals from such decisions. "[A]lthough there is no statutory provision governing the time in which [a writ of mandamus] must be sought, the proper rule is that it should be sought within the same period as that allowed for an appeal." State ex rel. Von Herberg v. Superior Court, 6 Wash.2d 615, 618, 108 P.2d 826 (1940).
[W]here there is a statutory right of appeal but it is an inadequate remedy, applications for writs of mandamus should be made within the time fixed for the taking of appeals, and when not so made will be denied.
State ex rel. Hawksworth v. Clifford, 130 Wash. 103, 106, 226 P. 272 (1924). See Vance v. Seattle, 18 Wash.App. 418, 569 P.2d 1194 (1977). This rule is limited to " 'cases arising in the courts, or in other judicial proceedings, where the direct notice of the pendency thereof to the parties involved is...
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