Opinion
No. 29545-8-II.
Filed: February 3, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 02-2-04284-3. Judgment or order under review. Date filed: 10/08/2002.
Counsel for Appellant(s), Stephen H. Demarest, Attorney at Law, 7005 Icicle Rd, Leavenworth, WA 98826-9366.
Counsel for Respondent(s), Jill Guernsey, Pierce Co Prosecutors Ofc, 955 Tacoma Ave S Ste 301, Tacoma, WA 98402-2160.
Ray and Laura Jean Reichenberg appeal a trial court's denial of their application for a writ of mandamus. The Reichenbergs sought the writ to compel Pierce County to process their `administrative appeal' and forward it to a hearing examiner. We affirm.
FACTS
The Reichenbergs live on property that they purchased from Walter Riley. Their property adjoins acreage owned by Premier Design. A slope bisects the two properties.
In 1998, Pierce County issued Premier Design a permit to develop a subdivision plat for its property. The permit specified that Premier Design could not change the property slope or elevation.
In September 1999, Riley and Nick Scholten, a Premier Design representative, entered into a verbal agreement about the bisecting slope. Riley authorized Premier Design to increase the slope to a 3:1 grade, encroaching on to his property no more than 30 feet. The agreement further required Premier Design to give Riley a written slope maintenance agreement within 24 hours of the discussion. Premier Design did not deliver the slope maintenance agreement within 24 hours.
Premier Design contracted with Northwest Cascade to perform the subdivision grading work. Apparently, the grading took place after the Reichenbergs acquired the property. When the grading caused an encroachment onto their property, the Reichenbergs notified the County.
On March 14, 2001, Premier Design submitted a revised geotechnical report and grading plan. In response, Ralph Lucero, a County Planning Department Development Engineer, wrote a letter to Premier Design dated April 9, 2001. Lucero accepted the revised grading plan, subject to the Reichenbergs' agreement because it affected their property. The Reichenbergs did not consent.
On April 20, the Reichenbergs filed an administrative appeal of Lucero's April 9 letter, seeking County hearing examiner review. On May 7, Lucero wrote to the Reichenbergs' counsel advising him that because the appeal was premature, it would not be forwarded to a County hearing examiner. On May 8, Premier Design sued the Reichenbergs and others, alleging tortious interference with business expectancy and seeking specific performance of its verbal agreement with Riley (Cause No. 01-2-07878-5). The Reichenbergs counterclaimed, alleging encroachment. The Honorable Bruce Cohoe later bifurcated the claims and set a December 2001 trial date on the encroachment issue.
Premier Design also sued Northwest Cascade. And the Reichenbergs cross-claimed against Northwest Cascade. The County was never a party to this action.
Our record does not contain the complaint and answers. We discern these facts from the record of the trial court bifurcating the claims and holding a trial on the slope encroachment.
The trial court eventually dismissed all other claims, cross-claims, and counterclaims. At the time briefs were filed in this appeal, the damages claim had not been resolved.
On August 2, 2001, the County issued a notice of correction to Premier Design for violating the Pierce County Code (PCC) because the slope elevation and grading exceeded its permit and caused a 30-foot encroachment onto the Reichenbergs' property. The notice of correction required Premier Design to restore the property within one month or face civil penalties.
Premier Design did not restore the property as required. On January 22, 2002, the Reichenbergs applied for a writ of mandamus (Cause No. 02-2-04284-3), requesting the superior court to order the County to process their administrative appeal of the April 9 letter. The superior court clerk assigned the Reichenbergs' writ request to a different judge, the Honorable Vicki Hogan.
Meanwhile, when Premier Design failed to comply with the notice of correction and restore the slope and grade, the County issued civil penalty notices, assessing $1,000 fines on February 7, March 21, and May 2, 2002. Premier Design did not pay the penalties or restore the property. On May 24, 2002, Judge Cohoe issued an order on the Reichenbergs' slope encroachment claim. The court ordered Northwest Cascade to restore the slope by pulling its `toe' back from the Reichenbergs' property within 30 days. Clerk's Papers (CP) at 70. Northwest Cascade completed the regrading in July 2002.
Judge Cohoe allowed the work to proceed without a County permit. As a result, the County did not inspect the work.
On June 12, 2002, the Reichenbergs moved for specific performance of the County's August 2, 2001 notice of correction. On July 17, 2002, Judge Cohoe signed the parties' agreed order on partial summary judgment, indicating that Premier Design intended to further grade the slope and fully restore it to its original condition.
On September 5, 2002, the Reichenbergs sought enforcement and also claimed contempt of Judge Cohoe's July 17, 2002 order. The record is silent as to any further proceedings before Judge Cohoe.
On September 27, 2002, Judge Hogan heard argument on the Reichenbergs' separate action seeking a writ of mandamus. The County argued that the April 9 letter was not a final order and/or the Reichenbergs had an adequate remedy at law and the matter became moot when Judge Cohoe ordered the slope restored. Judge Hogan denied the Reichenbergs' application for a writ of mandamus and they appeal.
ANALYSIS
The Reichenbergs sought a superior court writ of mandamus to compel the County to process their `timely filed and perfected administrative appeal' by referring it to a hearing examiner. Appellant's Brief at 5. They raise several arguments in support of their single assignment of error. But all of their arguments depend on whether the April 9 letter was appealable under the PCC and, therefore, was an appropriate basis for issuing an extraordinary writ. Thus, we turn first to that question.
Standard of Review
We review the denial of a writ of mandamus de novo as a question of law. RCW 7.16.160; Land Title of Walla Walla, Inc. v. Martin, 117 Wn. App. 286, 288-89, 70 P.3d 978 (2003). In a writ of mandamus, the superior court directs a governing body to perform a particular act in order to restore a complainant's deprived rights. RCW 7.16.160; Black's law Dictionary 973 (7th ed. 1999).
We review statutory construction issues de novo. Stone v. Southwest Suburban Sewer Dist., 116 Wn. App. 434, 438, 65 P.3d 1230 (2003). We apply statutory construction rules equally to ordinances and statutes. HJS Dev., Inc. v. Pierce County ex rel. Dep't of Planning Land Servs., 148 Wn.2d 451, 471-72, 61 P.3d 1141 (2003). And we accord the County's ordinance provisions their plain and ordinary meanings and read their language in their entirety so as to give them meaning. HJS, 148 Wn.2d at 471-72.
Appealability
PCC 1.22.090(A) authorizes a hearing examiner to hear land use matters such as this one. PCC 1.22.080 further provides:
Examiner-Powers and Duties
. . . .
B. The Examiner shall receive and examine available relevant information, including environmental documents, conduct public hearings, cause preparation of the official record therof, prepare and enter findings of fact and conclusions of law, and issue final decisions for:
1. Land Use Matters.
. . . .
b. Appeals of decisions or orders of a County Administrative Official under the Site Development Regulations.
. . . .
g. Appeals from any final administrative order or decision of the Planning Department in administration, interpretation or enforcement of the Pierce County Code.
. . . .
p. Reasonable use exceptions and any order or decision of the Planning Department under the Critical Areas and Natural Resource Lands Regulations.
Thus, a hearing examiner could hear the Reichenbergs' `administrative appeal' only in certain proscribed circumstances. Their appeal must be from (1) a decision or order of a county administrative official or (2) a Critical Areas order or decision. PCC 1.22.080(B).
The Reichenbergs argue that the Land Use Petition Act, RCW 36.70C (LUPA) applies here. We disagree. The Reichenbergs assert that LUPA grants the County authority to create a hearing examiner position. LUPA has no such provision. Moreover, LUPA does not apply to this case as it clearly states that it does not apply to writs of mandamus. RCW 36.70C.030(b).
Order or Decision
A County hearing examiner may hear appeals from an administrative decision or order. The PCC does not define `decision' or `order.' To give effect to the plain meaning of words where no statutory definition is provided, we may turn to dictionary definitions. Thurston County v. Cooper Point Ass'n, 148 Wn.2d 1, 12, 57 P.3d 1156 (2002).
The dictionary defines `order' (second definition) as `to issue commands' (2a) or `to arrange or dispose according to some plan or with reference to some end' (1a). Webster's Third New Int'l Dictionary 1588 (1976). The dictionary defines `decision' as `the act of settling or terminating by giving judgment.' Webster's, at 585.
Lucero sent the April 9 letter to confirm that the County accepted and approved Premier Design's revised geotechnical study and amended slope plan. He further clearly stated that the `Development Engineering Section [had to receive] confirmation from the adjacent property owner that the proposed regrading' was acceptable before the site permit would be issued. CP at 34.
In Lucero's April 9 letter, he notes that before `issuance of the site development permit [allowing completion of] construction of the revised slope,' the applicant must obtain a copy of the revised geotechnical report and a geotechnical engineer letter confirming that the construction conforms to the geotechnical report. CP at 34.
By its plain language, the April 9 letter does not purport to be an order or decision. It merely updates the parties about the status of Premier Design's revised plan. Because the April 9 letter is not an order or decision, it was not appealable to a hearing examiner. But even if we were to hold that the April 9 letter was a decision or order, it must have been issued by a county administrative official in order to be appealable.
County Administrative Official
Lucero works as a `Development Engineer' in the Development Engineering Section of Planning and Land Services. The PCC grants the Planning and Land Services Department responsibility for `preparation and coordination of plans and regulations to guide future development and natural resource development.' PCC 2.06.010(M), (M)(1). The PCC further provides that Development Engineering is `responsible for technical review of permit applications for development including plats, subdivisions, and commercial developments.' PCC 2.06.010(M)(5). Nothing in these sections grants a `Development Engineer' any departmental authority to make a decision or order affecting land use. Thus, Lucero is not a county administrative official.
Critical Area
In the alternative, the Reichenbergs assert that they may appeal the April 9 letter because it is a Critical Areas decision or order. They assert that Critical Area decisions and orders need not be `final' to be appealable.
The PCC provides that a Critical Area decision or order need not be final to be appealable. PCC 1.22.080(B)(p). An agency letter may constitute a decision or order if it clearly "fixes a legal relationship as a consummation of the administrative process.' Such a letter must be so written as to be clearly understandable as a final determination of rights. . . . [D]oubts as to the finality of such communications must be resolved in favor of the citizen.' Smoke v. City of Seattle, 132 Wn.2d 214, 222, 937 P.2d 186 (1997) (citing Valley View Indus. Park v. City of Redmond, 107 Wn.2d 621, 634, 733 P.2d 182 (1987)). The April 9 letter contains numerous contingent provisions and, thus, is not an appealable determination of rights.
The Reichenbergs argue that the Critical Area ordinance does not require finality. We agree that the PCC contains no such finality provision. Nevertheless, their argument fails because the April 9 letter is not a decision or order.
The Reichenbergs also argue that they timely appealed the April 9 letter. Because we hold that the April 9 letter was not appealable, we do not address this issue.
Adequate Remedy at Law and Mootness
The County argued below that the trial court should not issue a writ of mandamus because the Reichenbergs had an adequate remedy at law and Judge Cohoe's slope restoration order rendered their appeal moot. We agree.
A superior court issues a writ of mandamus only in extraordinary circumstances and only when there is no other adequate remedy available. City of Kirkland v. Ellis, 82 Wn. App. 819, 828, 920 P.2d 206 (1996). The court will not issue such a writ in anticipation of omission of a duty. Northwestern Warehouse Co. v. Oregon Ry. Navigation Co., 32 Wn. 218, 228, 73 P. 388 (1903). There must be an actual default in the performance of that legal duty. Northwestern Warehouse, 32 Wash. at 228.
On May 24, 2002, Judge Cohoe ordered slope restoration. This is exactly what the Reichenbergs sought in applying for a writ of mandamus on January 22, 2002. And at the writ of mandamus hearing on September 27, 2002, the trial court properly declined to issue a writ of mandamus. The Reichenbergs would have gained nothing more had the trial court issued a writ of mandamus.
The Reichenbergs confusingly argue that attorney fees should not be awarded to the County in accordance with RCW 4.84.370 because it is premature for us to do so. The State offers no counter-argument. We do not address issues of attorney fees.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
SEINFELD, J. and HUNT, C.J., concur.