Opinion
No. 26000-3-III.
May 1, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 06-2-03218-1, Jerome J. Leveque, J., entered February 23, 2007.
Affirmed by unpublished opinion per Kulik, A.C.J., concurred in by Sweeney and Brown, JJ.
Steve Bogle operates an auto repair business from his property in Cheney, Washington (the City). Mr. Bogle's property fronts First Street, or State Highway 904, and his building is located at the edge of the City's sidewalk.
The City filed an action, seeking to quiet title to the 12-foot strip of property condemned by an ordinance in 1889. The City also sought to abate the public nuisance created by the encroachment of Mr. Bogle's building on the public right-of-way. The City moved for partial summary judgment on its claims. The trial court quieted title to the disputed property in the City and entered an order and warrant of abatement compelling Mr. Bogle to demolish and remove all portions of his building constructed on the right-of-way. The trial court also entered summary judgment dismissing Mr. Bogle's counterclaims and affirmative defenses.
On appeal, Mr. Bogle contends that the trial court erred by granting the City's motions and dismissing his equal protection counterclaims and affirmative defenses of laches, waiver, and equitable estoppel. We conclude that there are no genuine issues of material fact and affirm the trial court's grant of summary judgment and dismissal of Mr. Bogle's affirmative defenses and counterclaims.
FACTS
Steve Bogle is the owner of real property, located at 16 First Street in Cheney, Washington. Mr. Bogle operates his business, an auto repair shop, on the property. Mr. Bogle's property fronts First Street, also known as State Highway 904 or SR 904.
In August 1999, Mr. Bogle purchased this parcel of real estate from John and Judy Reitmeier and acquired title to the property by statutory warranty deed. The legal description of the property conveyed by the deed is: "The Northwesterly 88 feet of Lots 8 and 9, Block 57, TOWN OF CHENEY, according to plat recorded in Volume 'A' of plats, in Spokane County, Washington." Clerk's Papers (CP) at 284.
Historical Background.
The City's original plat created lots in block 57 that were 100 feet deep. The City contends that the size of the lots was reduced to 88 feet in depth when 12 feet of those lots was condemned by Ordinance No. 76.
In April 1889, the City passed Ordinance No. 76 to widen First Street. The ordinance provided that 12 feet of real property on both sides of First Street, from Elm Street to Union Avenue, would be condemned so that First Street would be 84 feet in width. Pursuant to the ordinance, the City asserts that it condemned " [t]he Northwesterly 89 to 100 feetof Lots 8 and 9, Block 57, TOWN OF CHENEY," for a public right-of-way. CP at 5. The Spokane County Assessor's Map notes that a condemnation occurred.
The Spokane County Assessor's Map expressly states: "12' Condemned By Ord. No. 76." CP at 17.
Ordinance No. 76 also required compensation to be paid to the affected lot owners. Importantly, the ordinance was enacted prior to statehood and the adoption of the Washington State Constitution. The City claims that pursuant to the statutes then in effect, compensation for the taking was provided for by Ordinance No. 83, enacted in May 1889. Pursuant to Ordinance No. 83, the City vacated 12 feet of the alleys at the rear of the affected lots along each side of First Street in exchange for the 12 feet taken by the City through Ordinance No. 76. The express purpose of the ordinance was to provide affected land owners with the same amount of real property after the taking as before the taking. Mr. Bogle asserts that there is no admissible evidence to support the conclusion that any compensation was paid and that the property in dispute was actually acquired by the City.
The record shows that First Street was constructed after the City was platted and the streets were created in 1889. In the City's answer, filed in April 2006, the City asserted that First Street was initially paved over 75 years ago. Original monuments marking the centerline of SR 904 establish that the location of SR 904 adjacent to Mr. Bogle's property has not changed since that roadway was originally constructed.
In 1938, the structure currently in dispute was constructed by Mr. Bogle's predecessors on Lot 8 and extending 12 feet onto the northwesterly 89 to 100 feet of that lot. The improvement has existed in the exact same location since that time, and is now owned by Mr. Bogle, who uses the building as an auto repair shop. The City does not have any building permit or assessment records prior to 1953. The City asserts that when the building was constructed in 1938, there was no ordinance requiring a building permit before erecting any structure because that requirement was not imposed until 1958. On September 6, 2001, Mr. Bogle obtained a building permit from the City to replace front and rear doors, valued at $2,000, in his commercial building. Until 2006, the City never indicated that the building was located on the public right-of-way.
In 1985, the curbs on the northwest side of the street which fronts Mr. Bogle's property were installed by the City. That same year, a storm water drainage system, along the same segment of First Street, was installed in conjunction with the installation of the curbs. Most recently, in 2001, the portion of the street which fronts Mr. Bogle's property was resurfaced and sidewalks were installed as part of the SR 904 Corridor Enhancement Project. The building is located at the edge of the City's sidewalk. The record shows that other property owners have improvements located in the area the City claims is the right-of-way, including Jarms Pump Service, located next to Mr. Bogle.
Procedural History.
First Action. On February 15, 2006, Mr. Bogle filed an action in Spokane County Superior Court seeking damages against the State of Washington, by and through the Department of Transportation, and the city of Cheney. In his lawsuit, Mr. Bogle alleged that the defendants had unlawfully diverted storm and runoff water onto his property, causing substantial damage to his property and business. Mr. Bogle claimed that the defendant's actions constituted a compensable taking of his private property for public use.
Bogle v. State, Spokane County Superior Court Case No. 06-2-00749-7.
On April 13, 2006, the City filed its answer, asserting multiple counterclaims and affirmative defenses. The City claimed that it owned approximately 12 feet of the real property beyond the curb in front of the property owned by Mr. Bogle. Consequently, the City asserted that most of the property which Mr. Bogle claimed was flooded was the real property of the City and did not belong to Mr. Bogle. The City further asserted that approximately 12 feet of Mr. Bogle's building was illegally constructed on SR 904, based on Ordinance No. 76. Thus, the City also moved the court to enter an order of abatement.
In support of its motion, the City submitted the results of a land survey performed by City of Cheney Engineer and licensed Land Surveyor, Charles Simpson. Mr. Simpson concluded that approximately 12 feet of the building owned by Mr. Bogle was constructed upon the City's right-of-way. The declaration of Mr. Simpson also stated there was no record that any portion of this street was ever vacated by the Cheney City Council.
On June 22, 2006, Mr. Bogle stipulated to the dismissal of that action without prejudice.
Second Action. On July 21, 2006, the City filed the present lawsuit against Mr. Bogle, requesting that the trial court quiet title to the northwesterly 89 to 100 feet of lots 8 and 9, block 57, in the City and to order Mr. Bogle to abate the public nuisance caused by the encroachment of his building upon the right of way. In October, the City moved for partial summary judgment on its claims.
City of Cheney v. Bogle, Spokane County Superior Court Case No. 06-2-03218-1.
On December 1, 2006 Mr. Bogle filed his answer, in which he raised various counterclaims and affirmative defenses, including waiver, laches, and equitable estoppel. On December 8, requests for admission were served upon Mr. Bogle. In its request, the City stated, in part:
Since at least April 13, 2006, when the City served Defendant Bogle with a motion notifying him that his building intruded upon the public right of way, Defendant Bogle has been intransigent in his refusal to apply to the City and/or to the State of Washington and obtain the requisite permissions for the use of the public right of way for nontransportation purposes.
CP at 180. No answers were received by the City. Because of his failure to respond, Mr. Bogle was deemed to have admitted the requests for admission. See CR 36(a).
On January 19, 2007, the trial court quieted title in the City and issued an order and warrant of abatement. Then, on January 25, the City moved for summary judgment on Mr. Bogle's affirmative defenses and counterclaims. In its motion, the City also sought to impose sanctions against Mr. Bogle's counsel for violating CR 11. On February 23, the trial court granted the City's motion to dismiss but denied the City's request for sanctions. Mr. Bogle's appeal followed.
The order signed by the trial court was titled "Final Summary Judgment Dismissing Counter Claims and Affirmatifve [sic] Defenses." CP at 247.
ANALYSIS
In January 2007, the trial court entered partial summary judgment in favor of the City. In granting the motion, the trial court quieted title to the northwesterly 89 to 100 feet of lots 8 and 9, block 57, in the City. The trial court also issued an order and warrant of abatement, compelling Mr. Bogle to demolish and remove any portion of his building which encroaches upon the right-of-way. On appeal, Mr. Bogle contends the trial court erred by entering partial summary judgment on the basis that the City failed to establish that it had actually acquired title to the property through condemnation in 1889.
Summary judgment rulings are reviewed de novo. Seybold v. New, 105 Wn. App. 666, 675, 19 P.3d 1068 (2001). When reviewing an order granting summary judgment, this court engages in the same inquiry as the trial court, considering all the facts and reasonable inferences in the light most favorable to the nonmoving party. Kahn v. Salerno, 90 Wn. App. 110, 117, 951 P.2d 321 (1998).
Summary judgment is proper if the record before the court shows that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Ruff v. County of King, 125 Wn.2d 697, 703, 887 P.2d 886 (1995). This court may affirm on any basis supported by the record and the moving party bears the burden of showing the absence of a material issue of fact. Redding v. Virginia Mason Med. Ctr., 75 Wn. App. 424, 426, 878 P.2d 483 (1994). A material fact is one upon which the outcome of the litigation depends. Barrie v. Hosts of Am., Inc., 94 Wn.2d 640, 642, 618 P.2d 96 (1980). Once the moving party has established that there is no dispute as to any issue of material fact, the burden shifts to the nonmoving party to establish the existence of an element material to its case. Kahn, 90 Wn. App. at 117. Questions of fact may be determined on summary judgment as a matter of law where reasonable minds could reach but one conclusion. Alexander v. County of Walla Walla, 84 Wn. App. 687, 692, 929 P.2d 1182 (1997).
First, Mr. Bogle argues there is no admissible evidence supporting the conclusion that any compensation was ever paid and that the property in dispute was actually acquired by the City in 1889. Second, Mr. Bogle points to various undisputed facts and circumstances as further evidence that the City never completed any such condemnation.
Payment of Compensation.
Mr. Bogle contends the City failed to present undisputed, admissible evidence that compensation was paid to Mr. Bogle's predecessors, as required by Ordinance No. 76 and the laws in effect in 1889. Mr. Bogle's argument is without merit.
The City presented certified copies of Ordinances No. 76 and No. 83, which were admitted without objection. Municipal ordinances are presumed to be valid, and grants of municipal power are to be liberally construed. City of Bothell v. Gutschmidt, 78 Wn. App. 654, 659-60, 898 P.2d 864 (1995) (quoting RCW 35A.01.010). Similarly, the person challenging an ordinance bears the burden of proving that the ordinance is unconstitutional. Id. at 660 (quoting Henry v. Town of Oakville, 30 Wn. App. 240, 247, 633 P.2d 892 (1981)).
Ordinance No. 76 provided that 12 feet of real property on both sides of First Street between Elm Street and Union Avenue would be condemned in order to widen First Street. Importantly, Ordinance No. 76 required "compensation to be paid" for the 12-foot portion of those affected lots. CP at 278. That ordinance further provided "[t]hat the compensation due to any Lot owner by reason of the change of the boundaries of First Street herein shall be settled by the City Council as is provided for in Chapter 10 Sections 8 and 9 of the local and Private Laws of 1883 in an Act entitled an act 'to confer a City Government on Cheney.'" CP at 278. Specifically, section 9 of the Local and Private Laws of 1883 states:
When private property shall have been condemned, and the compensation to be paid therefor shall be made a charge upon the property benefited thereby, the appraisement of damages to be paid to the owners of the property condemned shall be made by three persons[.] . . . [T]his award shall be final unless appeal is made within twenty days from the time of the return thereof to the district court. Any person aggrieved by the award, may, upon filing a precipe therefor, have the case docketed for trial at the next term of court.
Laws of Wash. Terr., 1883, Cheney Charter, ch. X, § 9, at 349 (emphasis added).
The City presented evidence that it had compensated the owners of the affected lots along First Street by adopting Ordinance No. 83 on May 31, 1889. Ordinance No. 83 expressly provided that in exchange for taking 12 feet of the lots along First Street, the City vacated 12 feet of the alley at the rear of those lots, thereby compensating the affected landowners.
Here, Mr. Bogle argues that his predecessors did not receive the return of an additional 12 feet from the alley vacation because his lot is 88 feet deep and the original lot size was 100 feet, a fact which the City has conceded. Mr. Bogle claims that if Ordinance No. 83 has the effect now claimed by the City, his property would be 100 feet deep. As a preliminary matter, it appears that any challenge to the compensation provided through Ordinance No. 83 should have been made within 20 days from the time of the award in 1889. Laws of Wash. Terr., supra.
Moreover, the current size of Mr. Bogle's lot is not determinative of whether compensation was ever made. Ordinance No. 83 contained various conditions on receiving the vacated alley property. Section II of the ordinance provides that the land vacated in the alleys
is hereby added to and made a part of all lots lying along and facing on each side of First Street . . . providing that the owners of said lots shall pay all taxes and charges that may be hereafter assessed against said alleys so vacated, municipal or otherwise.
CP at 330 (emphasis added). Further, section III provides that the land vacated in the alleys will be conveyed to the affected lot owners by a deed "upon the application of the owners of the lots." CP at 330 (emphasis added). Here, Mr. Bogle has no evidence that his predecessors complied with these prerequisites to obtaining title or that they did not. The current size of Mr. Bogle's property does not establish that compensation was never made to his predecessors.
In addition, the City presented other evidence that it had, in fact, acquired the 12 feet of property fronting First Street. The Spokane County Assessor's Map expressly shows that 12 feet along First Street adjacent to Mr. Bogle's lots was condemned by Ordinance No. 76. Mr. Bogle failed to produce any public record showing that anyone other than the City has title to the now-disputed strip of land. Further, the declaration of the City's engineer, Mr. Simpson, stated there was no record that any portion of this street was ever vacated by the Cheney City Council.
Legal Interest.
Most significantly, Mr. Bogle has failed to produce any deed in his chain of title conveying the northwesterly 89 to 100 feet of lots 8 and 9 to him. Here, Mr. Bogle purchased this parcel of real estate in August 1999 from John and Judy Reitmeier, who had acquired it from the estate of Harry Reitmeier. Both the deed to Mr. Bogle and the deed from the estate of Harry Reitmeier dated August 17, 1983, clearly conveyed only the northwesterly 88 feet of lots 8 and 9, block 57. Significantly, there are no documents in the record granting either Mr. Bogle or his predecessors in title, the Reitmeiers, legal ownership of the 12-foot strip of property which the City claims to have acquired by condemnation in 1889. The City also established that neither Mr. Bogle nor his predecessors in title have ever paid real property taxes on the northwesterly 89 to 100 feet of lots 8 and 9 in block 57.
It is a well-settled principle that a grantor can convey no greater title or interest than he or she has in the property. Sofie v. Kane, 32 Wn. App. 889, 895, 650 P.2d 1124 (1982). Because the Reitmeiers had no interest in the disputed property when they executed the deed, they could not transfer any right, title, or interest to Mr. Bogle. Id. Consequently, Mr. Bogle cannot claim a legal interest in the northwesterly 89 to 100 feet of lots 8 and 9, block 57.
Mr. Bogle's Remaining Contentions.
Finally, Mr. Bogle points to various "undisputed facts and circumstances" as further evidence that the City failed to complete condemnation of the disputed property. Br. of Appellant at 8. Mr. Bogle contends that: (1) in 1938 the City allowed the construction of the building; (2) the City allowed the construction of similar improvements along the same disputed 12-foot strip of property on block 57; and (3) the City has never taken any action in the last 117 years to claim that these improvements were located on property owned by the City. These arguments are irrelevant as to whether the City ever fully condemned the property at issue. The trial court did not err by granting the City's motion for summary judgment and quieting title to that property in the City.
Equal Protection Counterclaim.
Mr. Bogle contends that the trial court erred by granting the City's motion to dismiss his equal protection claim. Mr. Bogle argues that his right to equal protection was violated because the City chose to enforce the law against him, but not against other similarly-situated property owners. Mr. Bogle asserts that the City has singled him out, without justification.
"'The right to equal protection guarantees that persons similarly situated with respect to a legitimate purpose of the law receive like treatment.'" Habitat Watch v. Skagit County, 155 Wn.2d 397, 414, 120 P.3d 56 (2005) (quoting State v. Harner, 153 Wn.2d 228, 235-36, 103 P.3d 738 (2004)). "'[E]qual protection of the law is denied when state officials enforce a valid statute in a discriminatory fashion.'" City of Yakima v. Johnson, 16 Wn. App. 143, 148, 553 P.2d 1104 (1976) (quoting United States v. Steele, 461 F.2d 1148, 1151 (9th Cir. 1972)). Here, the constitutionality of the nuisance statutes have not been challenged and, thus, are not an issue. Rather, Mr. Bogle argues that the application of the statutes violated his right to equal protection.
In its memorandum in support of motion for partial summary judgment quieting title and an order and warrant of abatement, the City relied on: RCW 7.48.010 (actionable nuisance defined); RCW 7.48.020 (who may sue — judgment for damages — warrant for abatement — injunction); RCW 7.48.030 (issuance and execution of warrant); and RCW 7.48.190 (nuisance does not become legal by prescription).
The selective enforcement of an otherwise nondiscriminatory law is not in itself a constitutional violation, and a "heavy burden" rests on an individual claiming to have suffered a denial of equal protection to demonstrate conscious, intentional discrimination. City of Burlington v. Kutzer, 23 Wn. App. 677, 681, 597 P.2d 1387 (1979).
Here, Mr. Bogle argues that the City denied him equal protection of the laws by choosing to enforce the nuisance statutes against him while ignoring similar violations by other property owners along First Street. However, the record reflects nothing which could be construed to imply a deliberate discriminatory purpose on the part of the City.
While Mr. Bogle argues that the City's present action against him is a "retaliatory lawsuit," he mischaracterizes the case. Br. of Appellant at 3. In February 2006, Mr. Bogle filed an action against the City. In the course of those proceedings, the City discovered that Mr. Bogle's building encroached on the City's property. The City responded to Mr. Bogle's complaint and, in its answer, raised multiple counterclaims and affirmative defenses. Specifically, the City sought a judgment quieting title to the disputed land in the City and also sought an order of abatement. After Mr. Bogle dismissed that action in June 2006, the City continued to pursue those same remedies by filing the present action against Mr. Bogle. Mr. Bogle's allegation that the lawsuit is "retaliatory" alone is insufficient to sustain his burden of showing intentional discrimination.
Further, the record does not support Mr. Bogle's assertion that he was singled out by the City. While the City concedes that it has not taken abatement action against other property owners, there is no evidence that those individuals have failed to seek the City's approval for their continued use of the right-of-way for nontransportation purposes. Conversely, the record shows that Mr. Bogle has refused to apply to either the City or the State in order to obtain the necessary authorization to use the right-of-way. Mr. Bogle fails to establish discriminatory enforcement of the nuisance statutes.
Even assuming that other similarly-situated property owners have not applied for the City's authorization to use the right-of-way, the City's request for abatement against Mr. Bogle does not result in a denial of equal protection. The mere fact that a local government takes enforcement action against one of many parties violating a statute or ordinance does not deny that party equal protection. Somer v. Woodhouse, 28 Wn. App. 262, 267, 623 P.2d 1164 (1981); see State v. Lee, 87 Wn.2d 932, 936-37, 558 P.2d 236 (1976). "Laxity in enforcement as to some is not a defense on equal protection grounds to enforcement against others, absent the use of an arbitrary or prohibited ground to determine specific instances of enforcement." Somer, 28 Wn. App. at 267. Moreover, absent a deliberate discriminatory purpose on the part of the City, selective enforcement does not render the City's action arbitrary and capricious. See Burlington, 23 Wn. App. at 682.
Here, Mr. Bogle has presented no evidence of discriminatory enforcement of the nuisance statutes or discriminatory intent. Further, as the above authority makes clear, selective enforcement of a statute, without more, does not establish an equal protection violation. Accordingly, Mr. Bogle's equal protection claim is without merit.
Equitable Estoppel.
Mr. Bogle raises equitable estoppel, laches, and waiver as affirmative defenses. We consider each separately and conclude that none has merit.
Mr. Bogle contends that because the City allowed this building to be constructed and continue in its current location, undisturbed from 1938 to the present, it may be reasonably inferred that the City granted permission for the construction and maintenance of the structure in that location. As a result, Mr. Bogle argues that the City is estopped from asserting its present claims.
Equitable estoppel is an affirmative defense which may apply where an admission, statement, or act has been detrimentally relied on by another party. Campbell v. Dep't of Soc. Health Servs., 150 Wn.2d 881, 902, 83 P.3d 999 (2004). "The principle of equitable estoppel is based upon the reasoning that a party should be held to a representation made or position assumed where inequitable consequences would otherwise result to another party who has justifiably and in good faith relied thereon." Wilson v. Westinghouse Elec. Corp., 85 Wn.2d 78, 81, 530 P.2d 298 (1975).
To establish equitable estoppel, the party asserting the defense must prove the following elements by clear, cogent, and convincing evidence: (1) a party's admission, statement, or act which is inconsistent with its later claim; (2) reasonable reliance by another party on that admission, statement, or act; and (3) injury to the relying party if the first party is permitted to repudiate or contradict the earlier statement or action. Campbell, 150 Wn.2d at 902.
The application of equitable estoppel against state or local governments is disfavored. Kramarevcky v. Dep't of Soc. Health Servs., 122 Wn.2d 738, 743, 863 P.2d 535 (1993). Consequently, where equitable estoppel is asserted against the government, two additional requirements must be met: equitable estoppel must be necessary to prevent a manifest injustice, and the exercise of governmental functions must not be impaired as a result. Id.
Finally, in addition to satisfying each of the above elements, the party asserting this defense must have proceeded in good faith and have "clean hands," or be free from fault in the matter. Mut. of Enumclaw Ins. Co. v. Cox, 110 Wn.2d 643, 650, 757 P.2d 499 (1988). Importantly, a party may not base a claim of estoppel on conduct, omissions, or representations which were induced by his or her own conduct, concealment, or representations, especially when fraudulent. Id. at 651 (quoting 31 C.J.S. Estoppel § 75, at 745-54 (1964)).
Here, the elements of equitable estoppel are not met. Mr. Bogle fails to establish that the City made an admission, statement, or act which is inconsistent with its later claim — the first element of equitable estoppel. Mr. Bogle argued that because the building at issue was constructed within the City's limits in 1938, it was necessarily constructed with the knowledge of the City's officials. Mr. Bogle also argues that because the building has been allowed to continue in its current location from 1938 to the present, it may be reasonably inferred that the City granted permission for the construction and maintenance of the structure in that location. In essence, Mr. Bogle relies exclusively on the City's inaction to support his estoppel argument.
Washington law recognizes the doctrine of estoppel by silence. See Sorenson v. Pyeatt, 158 Wn.2d 523, 539, 146 P.3d 1172 (2006). However, in Pioneer National Title Insurance Co. v. State, the court held that where no governmental advice or communication whatsoever is alleged, "[s]tate inaction alone, even if a breach of duty, does not constitute an inconsistent admission, statement or act." Pioneer Nat'l Title Ins. Co. v. State, 39 Wn. App. 758, 761, 695 P.2d 996 (1985). Accordingly, any argument based solely on governmental inaction is insufficient to satisfy the requirements of equitable estoppel. Mercer v. State, 48 Wn. App. 496, 501, 739 P.2d 703 (1987).
Here, Mr. Bogle could have argued that the City made an affirmative statement or act. The record shows that on September 6, 2001, Mr. Bogle obtained a building permit from the City, allowing him to replace front and rear doors in the building at issue, at a cost of $2,000. The issuance of a building permit is a ministerial decision. James v. Kitsap County, 154 Wn.2d 574, 586, 115 P.3d 286 (2005). However, even if Mr. Bogle was successful in establishing that the City made an inconsistent admission or statement, Mr. Bogle cannot demonstrate justifiable reliance.
A party asserting estoppel must show that his reliance was reasonable. Pub. Util. Dist. No. 1 v. Wash. Pub. Power Supply Sys., 104 Wn.2d 353, 365, 705 P.2d 1195 (1985). Reliance is justified only when the party claiming estoppel lacked knowledge of the true facts and had no convenient and available means to discover them. Patterson v. Horton, 84 Wn. App. 531, 544, 929 P.2d 1125 (1997). Where both parties can determine the law and have knowledge of the underlying facts, estoppel cannot be invoked. Lybbert v. Grant County, 141 Wn.2d 29, 35, 1 P.3d 1124 (2000). "The doctrine of equitable estoppel also is inapplicable where the representations relied upon are questions of law rather than questions of fact." Concerned Land Owners v. King County, 64 Wn. App. 768, 778, 827 P.2d 1017 (1992).
Moreover, a landowner has no right to rely on a building permit as assurance that the structure complies with applicable codes, regulations, and ordinances, absent a specific inquiry by the individual and a duty expressly undertaken by the government. Meaney v. Dodd, 111 Wn.2d 174, 179, 759 P.2d 455 (1988). The duty to ensure compliance with construction, zoning, and land use ordinances remains the responsibility of individual builders and permit applicants, not the local government. Id.
In Taylor v. Stevens County, our Supreme Court overruled its earlier decision in J B Development Co. v. King County which "assumed, incorrectly, that the issuance of a building permit is an official action by which a local government implicitly approves a builder's plans to erect a structure of the type and at the place approved." Taylor v. Stevens County, 111 Wn.2d 159, 167, 759 P.2d 447 (1988). The court clarified that "[b]uilding permits and building code inspections only authorize construction to proceed; they do not guarantee that all provisions of all applicable codes have been complied with." Id. Significantly, the court also noted that "the approval of construction plans and satisfactory inspections do not absolve a builder from the legal obligation to comply with statutes." Id. at 169.
J B Dev. Co. v. King County, 100 Wn.2d 299, 669 P.2d 468 (1983), overruled by Taylor v. Stevens County, 111 Wn.2d 159, 759 P.2d 447 (1988)).
In sum, the elements of equitable estoppel are not met. The trial court properly granted the City's motion for summary judgment dismissing Mr. Bogle's affirmative defense of equitable estoppel.
Laches.
Mr. Bogle next asserts the doctrine of laches as an affirmative defense against the City.
Laches is an equitable defense based on the principles of equitable estoppel. Rutter v. Rutter, 59 Wn.2d 781, 785, 370 P.2d 862 (1962) (quoting Luellen v. City of Aberdeen, 20 Wn.2d 594, 602, 148 P.2d 849 (1944), overruled by Stenberg v. Pac. Power Light Co., 104 Wn.2d 710, 709 P.2d 793 (1985)). "The purpose of laches is to prevent injustice and hardship." Brost v. L.A.N.D., Inc., 37 Wn. App. 372, 375, 680 P.2d 453 (1984).
"Laches is an implied waiver arising from knowledge of existing conditions and acquiescence in them." Buell v. City of Bremerton, 80 Wn.2d 518, 522, 495 P.2d 1358 (1972). The elements of laches are: (1) knowledge or a reasonable opportunity to discover on the part of a potential plaintiff that he or she has a cause of action against a Page 24 defendant; (2) the plaintiff's unreasonable delay in commencing that cause of action; and (3) damage to the defendant resulting from the unreasonable delay. Id.
Importantly, none of the elements alone raises the defense of laches. Id. As a general principle, where both parties are equally at fault in creating the delay, neither can successfully assert laches against the other. Rutter, 59 Wn.2d at 785. In the present case, Mr. Bogle has not shown that laches should be applied against the City.
Whether the doctrine of laches should be applied depends upon the facts and circumstances of the particular case. Schrock v. Gillingham, 36 Wn.2d 419, 427, 219 P.2d 92 (1950). Factors to be considered by the court in making this determination include the nature of the lawsuit, the circumstances, if any, justifying the delay, the relief sought, and whether the rights of defendant or other persons, such as the public, will be prejudiced by the maintenance of the suit. Lopp v. Peninsula Sch. Dist. No. 401, 90 Wn.2d 754, 759, 585 P.2d 801 (1978).
Here, Mr. Bogle argues that laches bars the City from abating the public nuisance created by the encroachment of his building on the public right of way. RCW 7.48.010 defines an actionable nuisance, in part, as the obstruction of any highway. Further, RCW 7.48.140(4) provides that it is a public nuisance "[t]o obstruct or encroach upon public highway, private ways, streets, alleys, commons, landing places, and ways to burying places." Pursuant to RCW 7.48.020, an action to obtain an order and warrant of abatement may be brought by any person whose property is injuriously affected by the nuisance. The right of a municipal corporation to bring such an action for a remedy against a public nuisance has long been recognized. Okanogan County v. Johnson, 156 Wash. 515, 517, 287 P. 15 (1930).
Significantly, RCW 7.48.190 expressly provides that "[n]o lapse of time can legalize a public nuisance, amounting to an actual obstruction of public right." This rule was applied in D'Ambrosia v. Acme Packing Provision Co., where the court stated: "'The rule is universally recognized that prescription or lapse of time cannot be relied on to establish a right to maintain a public nuisance.'" D'Ambrosia v. Acme Packing Provision Co., 179 Wash. 405, 408, 37 P.2d 887 (1934) (quoting 20 Ruling Case Law at 498). In D'Ambrosia, the trial court ordered the removal of a fence that had been constructed on the side of a highway nine years earlier. Id. After determining that the fence was a public nuisance, the court found that "[t]he fact that the fence had been upon the highway for a considerable number of years did not establish a right to maintain it there." Id.
In the present case, the encroachment of Mr. Bogle's building on the public right-of-way created a public nuisance. RCW 7.48.010, .140. In light of RCW 7.48.190 and D'Ambrosia, laches may not be used to bar the City's action.
Finally, Mr. Bogle argues on appeal that because the building has been in the same location for the past 68 years without objection, and that several construction projects were undertaken in that precise area in years prior, the City had actual knowledge or a reasonable opportunity to discover that it had a cause of action against Mr. Bogle and yet delayed.
Implicit in Mr. Bogle's argument is that there was undue delay or a lack of diligence on the part of the City by failing to earlier discover the encroachment and enforce the nuisance statutes. However, the City was under no such statutory duty to discover the nuisance created by Mr. Bogle's building. Our Supreme Court observed that "[t]here is in this state no statutory duty imposed upon a municipality to keep its streets free from nuisance." Goggin v. City of Seattle, 48 Wn.2d 894, 900, 297 P.2d 602 (1956). Further, in other contexts, as noted in the earlier discussion of estoppel, courts have been reluctant to impose a duty on local government to find violations of applicable codes, regulations, and ordinances. See Meaney, 111 Wn.2d at 179.
Here, Mr. Bogle has failed to establish that the City had knowledge or a reasonable opportunity to discover that it had a cause of action against him and that it unreasonably delayed in commencing the action.
Waiver.
Waiver is defined as the intentional and voluntary relinquishment of a known right. Bowman v. Webster, 44 Wn.2d 667, 669, 269 P.2d 960 (1954). Importantly, the person against whom waiver is claimed must have intended to permanently relinquish the right, and his or her conduct must be inconsistent with any other intent. Bill McCurley Chevrolet, Inc. v. Rutz, 61 Wn. App. 53, 57, 808 P.2d 1167 (1991). A waiver is unilateral and, unlike estoppel, does not require reliance. Bowman, 44 Wn.2d at 670 (quoting Kessinger v. Anderson, 31 Wn.2d 157, 168-69, 196 P.2d 289 (1948)).
A waiver may be express or implied. Id. at 669. To constitute an implied waiver, there must exist unequivocal acts or conduct evidencing an intent to waive; intent may not be inferred from doubtful or ambiguous facts. Cent. Wash. Bank v. Mendelson-Zeller, Inc., 113 Wn.2d 346, 354, 779 P.2d 697 (1989). Silence alone does not constitute an implied waiver unless there is an obligation to speak. Voelker v. Joseph, 62 Wn.2d 429, 435, 383 P.2d 301 (1963).
Here, the trial court's entry of partial summary judgment, dismissing any claim by Mr. Bogle based upon waiver, was appropriate. The City denied having any building permit or assessment records prior to 1953. The record shows that requests for admission were served upon Mr. Bogle on December 8, 2006. In the City's requests for admission, the City stated: "In 1938 there was no Ordinance requiring a building permit from the City of Cheney before erecting any structure because that requirement was not imposed until 1958" and also that "[n]o person who was employed by the City of Cheney as an official in 1938 is alive today." CP at 179-80.
Significantly, Mr. Bogle did not respond and was, therefore, deemed to have admitted the statements. See CR 36(a). There is no evidence in the record that the City consented to the construction of the building in its present location. Consequently, there is no genuine issue of material fact regarding whether the City waived any of its rights.
Failure to Strike.
A trial court's evidentiary rulings made in conjunction with a motion for summary judgment are reviewed for an abuse of discretion. Am. States Ins. Co. v. Rancho San Marcos Props. L.L.C., 123 Wn. App. 205, 214, 97 P.3d 775 (2004). A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds or reasons. In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997).
When a trial court makes an erroneous evidentiary ruling, the question on appeal becomes "whether the error was prejudicial, for error without prejudice is not grounds for reversal." Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 196, 668 P.2d 571 (1983). An error will not be considered prejudicial, and is harmless, unless it affects or presumptively affects the outcome of the case. Id. "The improper admission of evidence constitutes harmless error if the evidence is of minor significance in reference to the overall, overwhelming evidence as a whole." State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997).
On appeal, Mr. Bogle argues that the trial court erred when it did not strike portions of Daniel Maggs's declaration, which Mr. Bogle claims contained legal conclusions, speculation, inadmissible hearsay evidence, and statements not based upon personal knowledge. Mr. Bogle contends that Mr. Maggs's statements violated CR 56 by presenting legal conclusions and assertions that were not based on Mr. Maggs's personal knowledge. Further, Mr. Bogle argues that Mr. Maggs's interpretation of RCW 47.24.020(15) is a legal conclusion or legal argument. As such, Mr. Bogle argues the declaration contained inadmissible evidence that should have been stricken.
The challenged paragraphs of Mr. Maggs's declaration state:
4. In 1889, the City of Cheney condemned the real property on both sides of the original street so that the street would be eighty four feet [84 feet] in width. [Certified copy of Ordinance 76 attached as Exhibit B, and incorporated by reference].
. . . .
9. As required by RCW 47.24.020(15) title to this street and state highway right of way is vested in the City of Cheney and at all times since 1889, the City of Cheney has been the owner in fee simple of this street which is 84 feet in width.
CP at 46-47.
"A court may not consider inadmissible evidence when ruling on a motion for summary judgment." King County Fire Prot. Dist. No. 16 v. Hous. Auth., 123 Wn.2d 819, 826, 872 P.2d 516 (1994). Affidavits made in support of, or in opposition to, a motion for summary judgment must be made on personal knowledge, set forth facts that would be admissible in evidence, and affirmatively show that the affiant is competent to testify on the matter. CR 56(e).
An affidavit is to be disregarded to the extent that it contains legal conclusions. Keates v. City of Vancouver, 73 Wn. App. 257, 265, 869 P.2d 88 (1994). Our Supreme Court noted in Ball v. Smith:
It is the established and unquestioned rule that it is in the province of the court, and not the jury, to interpret a statute or ordinance and to determine whether it applies to the conduct of a party. It is accordingly the general rule that a witness is not permitted to give his opinion on a question of domestic law or upon matters which involve questions of law.
Ball v. Smith, 87 Wn.2d 717, 722-23, 556 P.2d 936 (1976) (citations omitted).
Here, Mr. Maggs's declaration appears to reach a legal conclusion regarding the condemnation of the property at issue. In addition, Mr. Maggs's declaration fails to establish that his statements were based upon personal knowledge, aside from the boilerplate statement at the beginning of his declaration.
Mr. Maggs's declaration states: "I am of legal age and competent to testify from personal knowledge." CP at 45.
Nonetheless, the trial court's failure to strike the statements, if error, was harmless. In this case, one of the challenged paragraphs in Mr. Maggs's declarations reiterates statements from Mr. Simpson's declaration, which were admitted without objection. Mr. Maggs's statements were also based on a certified copy of Ordinance No. 76, which was provided with the declaration.
Mr. Bogle fails to explain how Mr. Maggs's statements were prejudicial. An erroneous admission of evidence is not reversible error in the absence of prejudice. Floyd v. Myers, 53 Wn.2d 351, 355, 333 P.2d 654 (1959). Because the City admitted substantially the same evidence through Mr. Simpson's declaration, Mr. Maggs's statements did not materially affect the trial court's decision. Ashley v. Hall, 138 Wn.2d 151, 160, 978 P.2d 1055 (1999). On these facts, Mr. Bogle has failed to show prejudice. Accordingly, any error that may have occurred does not require reversal.
Sanctions.
RAP 18.9(a) authorizes the appellate court, on its own initiative or on motion of a party, to order a party or counsel who files a frivolous appeal "to pay terms or compensatory damages to any other party who has been harmed by the delay or the failure to comply or to pay sanctions to the court." Appropriate sanctions may include, as compensatory damages, an award of attorney fees to the opposing party. Rhinehart v. Seattle Times, Inc., 59 Wn. App. 332, 342, 798 P.2d 1155 (1990).
Here, the City asks this court to impose sanctions against Mr. Bogle, pursuant to RAP 18.9, on the basis that his appeal is frivolous. "An appeal is frivolous if, considering the entire record, the court is convinced that the appeal presents no debatable issues upon which reasonable minds might differ and that it is so devoid of merit that there is no possibility of reversal." Lutz Tile, Inc. v. Krech, 136 Wn. App. 899, 906, 151 P.3d 219 (2007), review denied, 162 Wn.2d 1009 (2008). "A frivolous action is one that cannot be supported by any rational argument on the law or facts." Rhinehart, 59 Wn. App. at 340. Importantly, this court resolves all doubts as to whether an appeal is frivolous in favor of the appellant. Camer v. Seattle Sch. Dist. No. 1, 52 Wn. App. 531, 540, 762 P.2d 356 (1988).
Based on Lutz Tile, sanctions are not warranted. Mr. Bogle raised debatable issues in his appeal and cited case authority supporting his position, although ultimately not found persuasive by this court. Kirshenbaum v. Kirshenbaum, 84 Wn. App. 798, 808, 929 P.2d 1204 (1997). An appeal that is affirmed merely because the arguments are rejected is not frivolous for purposes of imposing sanctions. Halvorsen v. Ferguson, 46 Wn. App. 708, 723, 735 P.2d 675 (1986). Accordingly, we deny the City's request for sanctions.
We affirm the trial court's orders.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and SWEENEY, J., concur.