Opinion
29548-6-III
12-22-2011
DAN HENDERSON; NEIL MEMBREY; LARRY KUNZ; and KASI HARVEY-JARVIS, Appellants, v. JOHN PEDERSON, DIRECTOR OF PLANNING, SPOKANE COUNTY, Respondent.
UNPUBLISHED OPINION
Korsmo, A.C.J.
Appellants unsuccessfully sought a writ of mandamus to compel Spokane County Planning Director John Pederson to take enforcement action against a restaurant. We agree with the trial court that a writ is not available under these facts and affirm.
FACTS
This is the latest salvo in a continuing legal dispute involving McGlades restaurant in north Spokane County. See Spokane County v. E. Wash. Growth Mgmt. Hearings Bd., 160 Wn.App. 274, 250 P.3d 1050, review denied, 171 Wn.2d 1034 (2011). The restaurant sits on 4.2 acres at the intersection of Day-Mt. Spokane and Yale Roads. Id. at 278. The appellants are neighboring property owners; most of them were parties to the previous litigation. Id. at 279. We view the evidence in a light most favorable to them.
Because this matter was decided in favor of Spokane County's motion on summary judgment, we review the facts in a light most favorable to the neighbors as the nonmoving party. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999).
McGlades uses a septic system to dispose of its wastewater. The McGlades property is located in a Critical Aquifer Recharge Area (CARA) for Spokane County's (County) sole-source aquifer. Wastewater disposal is subject to regulation under the County's Critical Area Ordinance (CAO). Planning Director John Pederson is charged with enforcing the CAO.
The neighbors developed evidence that McGlades was generating more wastewater than its septic system was designed to process. The neighbors draw their water from private wells that are as close as 200 hundred feet to the McGlades property. They complained to the County.
Director Pederson opened an enforcement file and began gathering information. The County has engaged in some discussions with McGlades, but has taken no specific enforcement action. Instead, it continues to monitor the situation and collect water usage reports every month or two. The County considers the enforcement file to be active.
The neighbors sought a writ of mandamus from the superior court, asking the court to force Director Pederson to take action against McGlades. Both parties moved for summary judgment. The court found that none of the requirements for a mandamus action were satisfied and denied the writ. The neighbors then timely appealed to this court.
ANALYSIS
There are three requirements that must be satisfied before a writ of mandamus can issue. At least two of those requirements are not present here.
A writ of mandamus is an extraordinary statutory remedy. RCW 7.16.150 et seq. It can issue to require an official to perform a specific duty; it cannot be used to direct a general course of conduct. Walker v. Munro, 124 Wn.2d 402, 408-409, 879 P.2d 920 (1994) (declining writ to order official to "adhere to the constitution"). Put another way, the writ is not available to compel actions that involve an official's discretion. It can be used to compel the official to exercise discretion, but not the specific direction the discretion should take. Peterson v. Dep't of Ecology, 92 Wn.2d 306, 313-314, 596 P.2d 285 (1979).
The writ of mandamus is available "to compel the performance of an act" which an official has "as a duty resulting from an office." RCW 7.16.160. Furthermore, the "writ must be issued in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law." RCW 7.16.170. A writ can only issue upon the request of a "party beneficially interested." Id. From these statutory commands, courts have distilled three necessary elements to support the issuance of a writ: (1) the official must have a clear duty to act; (2) there is no plain, speedy, and adequate remedy in the ordinary course of law; and (3) the applicant must be "beneficially interested." Eugster v. City of Spokane, 118 Wn.App. 383, 402, 76 P.3d 741 (2003), review denied, 151 Wn.2d 1027 (2004).
The trial court concluded that none of these criteria were met. We do not address the third criterion because it is clear that neither of the first two criteria were satisfied. We will address both of them in turn.
Because of their proximity to the McGlades septic system, the neighbors argue that they were "beneficially interested" in enforcing the CAO. The trial court concluded that there was no scientific evidence supporting their claims. We decline to address this aspect of case.
Clear Duty to Act
The neighbors argue that Director Pederson had a nondiscretionary duty to enforce the CAO and failed to live up to that duty because no action had been taken against McGlades. The argument fails because the director (1) has no clear duty to act against McGlades and also (2) has discretion on how to remedy any violation of the CAO. We review this aspect of the trial court's ruling de novo. River Park Square, LLC v. Miggins, 143 Wn.2d 68, 76, 17 P.3d 1178 (2001).
As relevant here, the County's CAO provides: "No action shall be undertaken by any person that impacts critical aquifer recharge areas . . . except in conformance with this chapter." SCC § 11.20.030(A). Enforcement authority is given to the planning director, who has a duty "to interpret and enforce the provisions of this chapter." SCC § 11.20.030(J)(2)(a). The general complaint here is that McGlades violated the terms of its discharge permit, thus acting "in nonconformance with this chapter, " and giving rise to a duty by Director Pederson to act to "enforce the provisions of this chapter."
The Washington Supreme Court has recently described the duty which gives rise to a mandamus action as one that is both "mandatory and ministerial." Freeman v. Gregoire, 171 Wn.2d 316, 327, 256 P.3d 264 (2011). Put another way, "the duty must be defined with such particularity as to leave nothing to the exercise of discretion or judgment." Id. The duty defined by SCC § 11.20.030(J)(2) is neither mandatory nor ministerial.
First, the duty imposed on the director is quite general. He or she is to enforce the CAO. There is no specific directive on how to act. In order for there to be a mandatory duty in this circumstance, the code would have to set forth a specific course of action to be taken against any property that exceeded its wastewater discharge permit. That is lacking here.
Second, the duty imposed on the director also carries significant discretion. The director is to "interpret and enforce" the CAO. No specific directives limit how the director is to perform those actions. Enforcement could amount to a director declining to take action despite a violation of the CAO. The code leaves the question of how to enforce the CAO to the discretion of the director.
In light of these less than clear obligations and discretion in how to carry out the director's obligations under the CAO, we do not believe there is a "clear duty" that is subject to a writ of mandamus. Recognizing this possibility, the neighbors alternatively argue that the director has not exercised his discretion by only monitoring the situation. Mandamus will lie to compel an official who has failed to exercise discretion allotted by statute. Peterson, 92 Wn.2d at 313.
We do not believe that the director has failed to exercise discretion. He has opened up an enforcement file, has talked to McGlades' owners, and is monitoring the situation. We cannot say that at this point the director is failing to act.
The trial court did not err in refusing to grant the writ.
Alternate Remedies
The writ of mandamus also will lie only if there is no other "plain, speedy and adequate remedy." RCW 7.16.170. We review this aspect of the trial court's ruling for abuse of discretion. State ex rel. Hodde v. Superior Court for Thurston County, 40 Wn.2d 502, 517, 244 P.2d 668 (1952). Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). There were alternative remedies for the neighbors, thus making a writ unavailable.
The neighbors argue that they do not have any other remedies because there is no other method of compelling Director Pederson to act. Their argument fails to focus on the wrong they are seeking to right. The harm they have alleged is the potential pollution of the aquifer rather than the director's exercise of his duties.
If McGlades is exceeding its discharge permit with resulting harm to the neighbors, as they have alleged, an injunction would appear to be available to prevent McGlades from exceeding the terms of its permit. An injunction is typically an appropriate remedy for a zoning violation due to the continuing nature of the violation. Radach v. Gunderson, 39 Wn.App. 392, 399-400, 695 P.2d 128, review denied, 103 Wn.2d 1027 (1985). The trial court concluded that an injunction was an available remedy on these facts. That decision is tenable.
The trial court did not abuse its discretion in denying the writ for this reason.
The judgment is affirmed.
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.
WE CONCUR: Sweeney, J., Brown, J.