Torrance v. King County

• Decision Date: 12 November 1998
• Docket Number: No. 66088-3,66088-3
• Court: Washington Supreme Court
• Parties: John R. TORRANCE and William Torrance, individually and as Trustee of the William S. Torrance Living Trust, Respondents, v. KING COUNTY, a subdivision of the State of Washington, Petitioner.

Page 783

136 Wn.2d 783

966 P.2d 891

John R. TORRANCE and William Torrance, individually and as Trustee of the William S. Torrance Living Trust, Respondents, v. KING COUNTY, a subdivision of the State of Washington, Petitioner.

No. 66088-3.

Supreme Court of Washington,

En Banc.

Argued June 9, 1998.

Decided Nov. 12, 1998.

Norm Maleng, King County Prosecutor, H. Kevin Wright, Darren E. Carnell, Deputy's, Seattle, for Appellant.

Bogle & Gates, Elaine L. Spencer, Ronald T. Schaps, Seattle, for Respondents.

JOHNSON, J.

We are asked to determine whether a superior court can issue a constitutional writ of certiorari when a county makes a decision not to redesignate property from agricultural to commercial or industrial and the landowner does not exhaust all appeals. In this case, we conclude the superior court cannot, and reverse the decision of the lower court. The controversy surrounds 25 acres of property zoned agricultural in King County, outside the Kent city limits, but inside Kent's annexation area. The property had been zoned agricultural since 1941, but Torrance acquired the property in the 1960s in the hope of eventual industrial or commercial development.

In 1992, pursuant to the Growth Management Act (GMA), RCW 36.70A, King County designated the Torrance property agricultural lands of long-term commercial significance. The adoption of the comprehensive plan on November 18, 1994 did not change the property's agricultural zoning, and Torrance did not appeal the designation.

In January 1995, King County enacted an ordinance adopting zoning, zoning maps, and development conditions to implement the 1994 comprehensive plan. Although still designated agricultural, the Torrance property received "P-suffix" zoning conditions. Under the terms of "P-suffix" conditions, the property retained its agricultural zoning, but the property-specific "P-suffix" zoning conditions allowed Torrance to use the property for "retail nursery operations, garden store, food gourmet stores, specialty food stores, university agricultural programs, restaurants, microbrewery and winery." King County Ordinance No. 11653. Torrance did not challenge the application of the "P-suffix" zoning conditions to his property, but alleges he had no reason to do so because the permitted uses satisfied his needs.

The compatibility of "P-suffix" zoning conditions to the purposes of the GMA were challenged by other parties. In September 1995, the Central Puget Sound Growth Management Hearings Board (Board) held the "P-suffix" zoning conditions were not in compliance with the GMA. Clerk's Papers at 146; see Alberg v. King County, No. 95-3-0041, 1995 WL 903142, at 15 (Central Puget Sound Growth Mgmt. Hr'gs Bd. Final Dec. and Order Sept. 13, 1995). ¹ In response to the Alberg decision, King County enacted Ordinance No. 12061 in December 1995, which removed the "P-suffix" conditions from the 1994 comprehensive plan and from the Torrance property. The removal of the "P-suffix" conditions did not alter the underlying agricultural zoning of the property, and Torrance did not appeal King County's action.

In 1996, Torrance requested removal of the Torrance property from agricultural designation. This request was included in an amendment to proposed Ordinance No. 96-496 and would have rezoned the property from "the Agricultural Production district and Agriculture Land Use Designations to Industrial." Clerk's Papers at 147. The proposed amendments were considered, but were rejected and deleted before that ordinance was adopted because the King County Council decided not to change the property's agricultural designation.

Torrance petitioned the Board to review King County's decision not to reclassify the property. Clerk's Papers at 124-25; see RCW 36.70A.280-.290. On March 31, 1997, the Board made two decisions. First, the Board determined Torrance was time barred from challenging King County's agricultural designation of the property because more than 60 days had passed since the County's 1994 and 1995 GMA actions. Second, the Board found King County in compliance with the GMA because the County's decision not to adopt Torrance's proposed amendments was not an illegal action under RCW 36.70A.130. Clerk's Papers at 149-50. Despite the availability of judicial review in superior court, Torrance did not appeal the Board's decision. See RCW 34.05.510; RCW 36.70A.300.

Instead, Torrance pursued a lawsuit filed December 13, 1996 (prior to the Board's decision) in King County Superior Court. The lawsuit challenged King County's 1996 decision not to adopt Torrance's proposed amendments changing the agricultural designation of Torrance's property. Torrance's complaint included a cause of action under Washington's Land Use Petition Act (LUPA), RCW 36.70C, arguing the decision not to adopt the proposed amendments was a land use decision subject to (1) judicial review; (2) a claim for damages under RCW 64.40; (3) a taking claim; and (4) a claim under 42 U.S.C. § 1983 for violation of Torrance's constitutional right to substantive due process. Torrance later amended the complaint to include a request for a constitutional writ of certiorari. ²

Following briefing and argument by the parties, the superior court determined the constitutional writ of certiorari would issue. The superior court found Torrance's property was not agricultural land under the GMA and King County's decision not to change the agricultural designation in 1996 was illegal. The superior court also found King County's failure to change the designation of Torrance's property following the Alberg decision arbitrary and capricious. The superior court ordered King County to adopt legislation changing the designation of Torrance's property from agricultural to either commercial or industrial.

King County filed a petition for discretionary review of the superior court decision in the Court of Appeals. Torrance moved for transfer to this court. The motion was granted.

We must determine whether the superior court erred in granting the constitutional writ of certiorari. We review this issue de novo. Thomsen v. King County, 39 Wash.App. 505, 514-15, 694 P.2d 40 (1985) (appellate court should conduct de novo review of superior court's writ decision).

A constitutional writ of certiorari is not a matter of right, but discretionary with the court. Saldin Sec., Inc. v. Snohomish County, 134 Wash.2d 288, 304, 949 P.2d 370 (1998). The law is well established that discretion can be exercised when no other adequate remedy at law is available and when the decision below is arbitrary, capricious, or contrary to law. Saldin Sec., 134 Wash.2d at 292-93, 949 P.2d 370; Williams v. Seattle Sch. Dist. No. 1, 97 Wash.2d 215, 221, 643 P.2d 426 (1982). If either a statutory writ of review or direct appeal of the decision is available, discretion to issue a constitutional writ of certiorari generally does not exist. Saldin Sec., 134 Wash.2d at 292-93, 949 P.2d 370.

The critical inquiry in this case is whether an adequate remedy at law existed and was available to the landowner. While many zoning decisions have been made in this case, for purposes of this opinion we examine whether the superior court can exercise its discretion and issue a constitutional writ of certiorari after the Board's March 31, 1997 decision. To do so, we must examine what potential remedies were available to the landowner after the Board's decision was made and determine whether the potential remedies provided the opportunity for adequate relief.

The GMA establishes an administrative review process designed to resolve allegations that a local government failed to comply with the GMA's requirements. See RCW 36.70A.250-.345. The GMA requires that any person making such a challenge file a petition with a growth management hearings board (GMHB). RCW 36.70A.280. ³ A petition for review must be filed within 60 days of the date the local government took the challenged action. RCW 36.70A.290(2). ⁴ The GMHB shall issue a final order finding the state agency, county, or city in compliance with the GMA, or not. RCW 36.70A.300. ⁵ If a GMHB determines there is noncompliance, it shall remand the matter to the state agency, county, or city which must then correct the error and comply with the requirements of the GMA. RCW 36.70A.300(3).

Any aggrieved party may appeal a GMHB decision to superior court within 30 days of the final order of a GMHB. RCW 36.70A.300(5). A county zoning decision and a GMHB determination that the county's decision was legal are decisions that may be appealed to superior court because compliance with GMA directives are involved. Washington's Administrative Procedure Act (APA), RCW 34.05, governs judicial review of GMHB decisions, and the party asserting the invalidity of the agency decision carries the burden of proof. See generally RCW 36.70A; RCW 34.05.570(1)(a). A superior court can grant relief if the action substantially prejudiced the party appealing the GMHB's decision. RCW 34.05.570(1)(d). Additionally, a superior court can also grant relief if: the order is in violation of a constitutional provision; the order is outside the statutory authority or jurisdiction of the agency; an agency engaged in an unlawful decisionmaking process or failed to follow its prescribed procedure; an agency has erroneously interpreted or applied the law; the order is not supported by the evidence; an agency has not decided all issues requiring resolution by the agency; a motion for disqualification was made and improperly denied; the order is inconsistent with a rule of the agency; or the order is arbitrary or capricious. RCW 34.05.570(3)(a)-(i). ⁶ The writ of certiorari is unavailable unless the remedies available under RCW 34.05.570 are inadequate for full and complete relief. If an opportunity for full and complete relief is available, the general rule that the existence of a statutory appeals process bars a court from exercising discretion...