Vashon Island Committee for Self-Government v. Washington State Boundary Review Bd. for King County

• Decision Date: 12 October 1995
• Docket Number: SELF-GOVERNMENT,No. 62306-6,62306-6
• Citation: 127 Wn.2d 759,903 P.2d 953
• Parties: VASHON ISLAND COMMITTEE FOR; Patrick Campbell and Carol Campbell, husband and wife, Appellants, v. WASHINGTON STATE BOUNDARY REVIEW BOARD FOR KING COUNTY, Respondent, and Citizens for Rural-Oriented Government and Laura Wishik, Respondents/Intervenors.
• Court: Washington Supreme Court

Page 759

127 Wn.2d 759

903 P.2d 953

VASHON ISLAND COMMITTEE FOR SELF-GOVERNMENT; Patrick Campbell and Carol Campbell, husband and wife, Appellants, v. WASHINGTON STATE BOUNDARY REVIEW BOARD FOR KING COUNTY, Respondent and Citizens for Rural-Oriented Government and Laura Wishik Respondents/Intervenors.

No. 62306-6.

Supreme Court of Washington En Banc.

Oct. 12, 1995.

David J.W. Hackett, Seattle, for appellant.

Robert Kaufman, Bellevue, Mark Sidran, Seattle City Attorney, Laura Wishik, Robert Tobin, Asst. City Attys., Seattle, for respondent.

ALEXANDER, Justice.

We granted review of an order of the King County Superior Court denying an application for a writ of mandamus ordering the Boundary Review Board of the State of Washington for King County (Board) to "review" a notice of intent to incorporate all of Vashon and Maury Islands as a city. (Clerk's Papers at 2). We affirm the trial court, concluding that it did not err in denying the application for the writ on the basis that under a 1994 amendment to RCW 36.93.150, a statute that sets forth the actions the Board may take after reviewing "proposed actions," the Board could not approve the incorporation because all of the land within the proposed city was located outside of the designated urban growth areas of King County.

In 1994, a resident of Vashon Island, Carol Campbell, chaired a nonprofit organization known as the Vashon Island Committee for Self-Government (Committee). Under Campbell's leadership, the Committee circulated a petition in support of the incorporation of Vashon and Maury Islands (Vashon), an island located entirely within the nonurban growth area of King County. ¹ Four hundred forty-eight of the approximately 10,000 residents of the island signed the petition. The Committee then filed the petition with the King County Auditor. The Records and Elections Division of that office determined that the number of signatures on the petition exceeded the number required to certify the petition. ²

In a letter dated March 22, 1994, the Committee, as it was required to do, informed the Board that it intended to incorporate Vashon as a Non-Charter Code City. ³ The Board responded to the Committee by letter, indicating:

The Notice of Intention transmitted to this office is now complete and has been officially filed effective March 23, 1994. Therefore, the end of the forty-five day period for invoking the Board's jurisdiction and requiring a public hearing is now officially May 7, 1994. You will be kept advised of all transactions affecting this action.

(Clerk's Papers at 32; Br. of Appellant at 4.)

On May 2, 1994, the King County Council passed a motion requesting that the Board review the proposal for incorporation of Vashon Island as a city. The Council did not, however, provide any funds for such a review. Eventually, the Attorney General and the Board's own attorney advised a member of the King County Council, Greg Nickels, that incorporation of Vashon as a city was legally prohibited because all of the territory in the proposed city was "outside of the County's adopted Urban Growth Area." (Clerk's Papers at 39.) Nickels was also informed that the Board had "declined to act on the proposed Vashon incorporation unless and until the County funds a pre-incorporation feasibility study." (Clerk's Papers at 39.)

On August 9, 1994, Councilmember Nickels sent a letter to the Board, requesting that it "immediately determine and issue a formal decision upon the legal question of whether, under any set of facts which a feasibility study might reveal, Vashon could legally incorporate at this time." (Clerk's Papers at 39.) On August 11, 1994, the Board voted, unanimously, to direct its legal counsel to inform the Committee "that the Board is returning the Notice of Intention for incorporation of the City of Vashon Island, because the Board has determined, based on the advice of Special Assistant Attorney General Kaufman, that under state law the Board could not possibly approve the incorporation." (Clerk's Papers at 82.) On August 22, Special Assistant Attorney General Kaufman informed the Committee by letter that the Board accepted his opinion that it was "legally impossible to incorporate Vashon Island under existing law." (Clerk's Papers at 34.) Faced with this response, the Committee brought suit in King County Superior Court against the Boundary Review Board, seeking a writ of mandamus directing the Board to "review" their notice of intent to incorporate. (Clerk's Papers at 2.)

Another group, Citizens for Rural Oriented Government (CFROG), moved to intervene in the lawsuit. CFROG was joined in that motion by a member of that organization, Laura Wishik. A superior court judge granted their motion.

Another judge of the superior court denied the Committee's application for a writ of mandamus, indicating in a memorandum opinion that a 1994 amendment to RCW 36.93.150 was "intended to prevent the incorporation of land located outside of an urban growth area even if that land encompasses a population of 7,500 people or more." (Clerk's Papers at 200.) The Committee petitioned this court for direct review and we granted it.

I

The Committee asserts that the trial court erred in permitting CFROG and Wishik to intervene. It contends that the Intervenors "lacked any legally recognized status, or any legally protected interest in the current matter." (Br. of Appellants at 28.)

The intervention of CFROG and Wishik was permitted by the trial court pursuant to the provisions CR 24(a). That rule provides, in part:

Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

CFROG and Wishik both appear to fall within the parameters of the aforementioned rule, as applicants claiming an interest relating to the property or transaction which is the subject of the action. In that regard, the record shows that CFROG exists to promote preservation of the rural nature of Vashon. The submissions also reveal that Wishik is an owner of land on Vashon who is concerned about the effect a more densely populated Vashon would have on the quality of her well water.

Although the Intervenors' interests were, arguably, adequately represented by the Board, the term "interest" is to be construed broadly, rather than narrowly. Fritz v. Gorton, 8 Wash.App. 658, 660, 509 P.2d 83 (1973). In addition, even assuming intervention as a matter of right was not justified, permissive intervention pursuant to CR 24(b) was certainly appropriate here. ⁴ There was no error by the trial court in permitting the intervention.

II

The principal question we have before us is whether the trial court erred in denying the Committee's application for a writ of mandamus compelling the Board to act on its petition to incorporate Vashon by reviewing the proposal. A writ of mandamus is appropriate to "compel the performance of an act which the law especially enjoins as a duty resulting from an office." RCW 7.16.160. Courts should, however, refrain from requiring the performance of useless or vain acts. Neilson v. Vashon Island Sch. Dist. 402, 87 Wash.2d 955, 960, 558 P.2d 167 (1976).

In denying the Committee's request for a writ of mandamus, the trial court concluded that the Board properly declined to review the proposed incorporation. This conclusion was based on its interpretation of a recent amendment to RCW 36.93.150(2) which, in the trial court's view, precluded incorporation of Vashon because the area comprising the proposed city was entirely outside of designated urban growth areas of King County. ⁵ The Committee asserts that the trial court erred in relying on the amended version of the statute, arguing that it had a "vested right" to have its notice evaluated under RCW 36.93.150(2) as it existed on March 23, 1994, the date the Committee filed the notice of incorporation and a date which preceded the aforementioned amendment. (Br. of Appellant at 13.) It also advances the related contention that the trial court erred in giving the amendment retroactive effect. We will discuss each of these arguments.

A. Vested Right. Prior to April 1, 1994, RCW 36.93.150(2) provided, in part, that:

a board shall not modify the proposed incorporation of a city with an estimated population of seven thousand five hundred or more by removing territory from the proposal, or adding territory to the proposal, that constitutes ten percent or more of the total area included within the proposal before the board, but shall not reduce the territory in such a manner as to reduce the population below seven thousand five hundred.

Laws of 1990, ch. 273, § 1, at 1550 (emphasis added). Effective April 1, 1994, the statute was amended. It now reads, following the above quoted phrase, "proposal before the board," as follows:

proposal before the board. However, a board shall remove territory in the proposed incorporation that is located outside of an urban growth area ... before the area is established that is subject to this ten percent restriction on removing or adding territory. A board shall not modify the proposed incorporation of a city with a population of seven thousand five hundred or more to reduce the territory in such a manner as to reduce the population below seven thousand five hundred.

Laws of 1994, ch. 216, § 15, at 1094 (emphasis added).

The Committee's contention that it had a vested right to have its petition for incorporation evaluated under the version of RCW 36.93.150(2) that was extant on March 23, 1994, the date it filed its notice of intention to incorporate, is without merit. Although the Committee correctly observes that a statute will not...