盧勝彥如果已開悟了,明心見性了那他為何要在2002年為了彩虹山莊旁的小小土地開發糾紛而告上KING COUNTY縣政府﹗
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wa&vol=2002_app/47647-5&invol=3http://www.mrsc.org/mc/courts/appellate/110wnapp/110wnapp0092.htm有愛靠杯靠目的龜孫子說我移花接木,那乾脆把整個法院判決書PO上來
Grandmaster Sheng-Yen Lu v. King County, No. 47647-5-I, (Slip Op., January 28, 2002).
Jan. 2002 GRANDMASTER SHENG-YEN LU v. KING COUNTY 1
Cause No. 47647-5-I
[No. 47647-5-I. Division One. January 28, 2002.]
)
GRANDMASTER SHENG-YEN LU; ) No. 47647-5-I
WILLIAM KENNETH HALL; STEVEN )
HUGHES; and PHIL WILLIAMSON, ) DIVISION ONE
)
Appellants, )
)
v. )
)
KING COUNTY, CADMAN, INC., a )
Washington corporation; and )
WEYERHAEUSER COMPANY, a )
Washington corporation, ) PUBLISHED OPINION
)
Respondents, ) FILED: January 28, 2002.
)
Trial Court: Superior Court, King County,
No. 00-2-14446-6.SEA, Peter Jarvis, J., October 27, 2000.
Sullivan & Thoreson, by Kevin Sullivan; Bricklin & Gendler, by
David Bricklin, for appellants.
Hillis Clark Martin & Peterson, by Jerome Hillis, George Kresovich,
and Joseph Genster; Cairncross & Heplemann P.S., by Diana Shukis and
Alan Wallace; King County Prosecutors Office, by John Briggs and
Michael Sinsky, for respondents
COX, J. - The Land Use Petition Act (LUPA) generally provides the
exclusive means of judicial review of final land use decisions. /1
Here, Grandmaster Sheng-Yen Lu and others (the Neighbors) appeal
dismissal of this declaratory judgment action. This action seeks an
order directing King County to decide, prior to establishment of the
final configuration of mining activities, whether a conditional use
permit (CUP) will be required for a proposed mining project. Because
LUPA provides an adequate alternative remedy and this case is not ripe
for judicial review, the trial court did not abuse its discretion in
dismissing the action. We affirm.
In 1998, King County, Weyerhaeuser, the state Department of Natural
Resources (DNR), and others agreed to the development and ultimate
donation for public use of certain property located in North Bend. In
the agreement, Weyerhaeuser agreed to develop the property as a gravel
mine using high performance standards to protect the environment. The
agreement further provided that Weyerhaeuser will ultimately donate the
land to be reclaimed from mining to DNR to be held in trust for the
County. The project is intended to protect public views and ultimately
transfer private land to long-term public ownership and forest use.
The subject property is located in a forest zoning district. Under
the King County Code, mining operations are allowed on forestry lands if
mining activities are more than "one-quarter mile from an established
residence" and do not use local access streets that abut lots developed
for residential use. /2 Otherwise, a CUP is required.
Cadman, Inc. is Weyerhaeuser's representative to implement the project.
Cadman submitted to King County's Department of Development and
Environmental Services (DDES) plans for mining the subject property at
two sites. The "Lower Site" plans that Cadman submitted identified three
improvements within one-quarter mile of a building on the property of
Grandmaster Lu. They are a 3.8 acre pond, a noise berm, and a drainage
swale.
DDES determined that, for purposes of the CUP ordinance, the building on
Grandmaster Lu's property is an "established residence." DDES initially
indicated that no CUP would be required for the project. DDES later
modified its position, indicating that it would decide whether a CUP was
needed when the County published a Draft Environmental Impact Statement
(DEIS). DDES has since indicated that a decision can only be made after
the final proposed configuration of mining activities is established.
The Neighbors claim that the pond, berm, and drainage swale in the
plans for the "Lower Site" are mining activities for purposes of the CUP
ordinance. Cadman and Weyerhaeuser dispute this, contending that these
improvements are either not part of their mining proposal or may never be
constructed.
The County released to the public a DEIS that included a list of
required licenses and permits for the project. It does not include a
CUP, as recommended by the consultant hired by the County to prepare the
proposed DEIS for the project. The DEIS analyzed four alternatives: (1)
no action, (2) mining activities on upper and lower portions of the
property, (3) a different configuration of mining activities on upper and
lower portions of the property, and (4) mining activities only on the
upper portion of the property. As Cadman pointed out to the County,
under alternatives (1) and (4) of the DEIS Weyerhaeuser would not be
obligated to donate the land at the lower site to DNR in trust for the
County. Thus, the Neighbors argue that the County would be biased
against those alternatives and would be inclined to permit alternative
(2) or (3) that would threaten the property of the Neighbors.
The Neighbors originally commenced a proceeding under LUPA challenging,
among other things, the County's failure to decide whether Weyerhaeuser
and Cadman must obtain a CUP. Weyerhaeuser, Cadman, and the County moved
to dismiss that action. In response, the Neighbors moved for voluntary
dismissal, which the court granted.
Shortly thereafter, the Neighbors commenced this declaratory judgment
action. The County, Weyerhaeuser, and Cadman again moved for dismissal,
which the trial court granted
The Neighbors appeal.
Declaratory Relief
Citing RCW 7.24.050, the Neighbors first argue that the trial court
incorrectly refused to consider this action. They claim a present
substantive ruling would "terminate the controversy or remove
uncertainty." We hold that the trial court properly exercised its
discretion by dismissing the action.
The Declaratory Judgments Act (DJA) should be liberally interpreted in
order to facilitate its socially desirable objective of providing
remedies not previously countenanced by our law. /3 This principle has
long been tempered by the requirement that a "justiciable controversy"
exist before a court may substantively rule in such an action. /4 A
justiciable controversy is: (1). . . an actual, present and existing
dispute, or the mature seeds of one, as distinguished from a possible,
dormant, hypothetical, speculative, or moot disagreement, (2) between
parties having genuine and opposing interests, (3) which involves
interests that must be direct and substantial, rather than potential,
theoretical, abstract or academic, and (4) a judicial determination of
which will be final and conclusive. /5 As we recently stated in
Neighbors and Friends of Viretta Park v. Miller, /6 another way
of stating the requirement is "a claim is ripe for judicial determination
if the issues raised are primarily legal and do not require further
factual development, and the challenged action is final." /7
One is not entitled to relief by way of a declaratory judgment if there is
available a completely adequate alternative remedy. /8 We review for
abuse of discretion a refusal to consider a declaratory judgment action.
/9 A trial court abuses its discretion only when its decision is
manifestly unreasonable or based on untenable grounds. /10 A court's
decision is manifestly unreasonable if it is outside the range of
acceptable choices, given the facts and the applicable legal standard; it
is based on untenable grounds if the factual findings are unsupported by
the record; it is based on untenable reasons if it is based on an
incorrect standard or the facts do not meet the requirements of the
correct standard. /11
Adequate Alternative Remedy
We first consider whether the Neighbors have available a completely
adequate alternative to this declaratory judgment action. We hold that
they have such a remedy in LUPA.
Generally, LUPA is the exclusive means of judicial review of land use
decisions. /12 Turning first to that statute, there can be no serious
dispute that the ultimate decision by DDES that is at issue here will be a
"land use decision" within the meaning of the statute. That is because
that final determination will be one on an application for governmental
(County) approval before real property (the mine) may be developed, as
specified in RCW 36.70C.020(1).
Likewise, there can be no dispute that there has not yet been a
final determination by DDES on the application. As the Neighbors' prior
motion to dismiss the LUPA proceeding they commenced tacitly admits, such
a proceeding would be premature before DDES makes a final decision.
Much of the Neighbors' argument that their request for declaratory
relief is proper is premised on the assumption that LUPA could not
provide adequate relief at the appropriate time. But the lack of a final
decision by DDES at this time does not necessarily render a LUPA
proceeding less than a completely adequate alternative to this request
for declaratory relief.
In reviewing the statutory framework of LUPA, we note that the Legislature
has carefully defined "land use decision" in terms of a final
determination by the relevant body or officer with the highest level of
authority to make the determination. /13 This legislative choice of words
must mean something. We conclude that the most reasonable meaning to give
to this legislative choice is to conclude that courts should generally
defer review of decisions involving the use of land until such decisions
are final-that is when the highest body or officer has finally acted.
Our decision in Ward v. Board of Skagit County Comm'rs /14
is consistent with this view. There, property owners sought judicial
review under LUPA of the administrative denial of a zoning variance and
special use permit. Our court reviewed the statutory language of LUPA
and held that in order to obtain a final determination one must, by
necessity, exhaust one's administrative remedies. /15 Our court further
noted that exhaustion of such remedies is a prerequisite to judicial
review
Moreover, the purpose section of LUPA declares that:
[t]he purpose of this chapter is to reform the process for judicial
review of land use decisions made by local jurisdictions, by
establishing uniform, expedited appeal procedures and uniform
criteria for reviewing such decisions, in order to provide
consistent, predictable, and timely judicial review. [/16]
In view of the above express statutory language and the relevant case law,
we conclude that courts should generally defer to local jurisdictions
until a final determination on the use of land is made by the highest body
or officer. Once made, that decision is subject to judicial review
according to the procedures outlined in the purpose section of the
statute. To hold otherwise would risk premature judicial intrusion into
land use decisions. Thus, the Neighbors must show that this case warrants
court intervention in advance of a final decision by DDES.
The Neighbors argue that Chelan County v. Nykreim /17 supports
their claim that declaratory relief, not LUPA, is proper here. There,
Division Three of this court concluded that LUPA is the exclusive means of
reviewing quasi-judicial decisions, but not of ministerial decisions. The
Neighbors claim here that the decision that DDES will make is ministerial
and thus reviewable by means other than LUPA.
We disagree with the conclusion in Nykreim. We hold that LUPA
provides the exclusive means of review for land use decisions, whether
they are quasi-judicial or ministerial.
In Nykreim, the court reviewed a declaratory judgment action in
which Chelan County asked the superior court to declare invalid a
certificate of exemption the County had granted and then withdrawn in a
boundary line adjustment application. /18 Concluding that LUPA "is the
exclusive means of review of quasi-judicial decisions, not ministerial
decisions," /19 the court held that "[a]ggrieved parties may challenge an
invalid ministerial decision granting a boundary line adjustment when
there is no showing that the party had an obligation to exhaust other
administrative remedies that would result in a final `land use decision'
reviewable only under LUPA." /20
In our view, that conclusion is contrary to the plain language of the
statute. We approach our reading of LUPA with the principle in mind that
we construe statutes as a whole to give effect to all language and to
harmonize all provisions. /21 The Nykreim court's conclusion
renders superfluous language contained in RCW 36.70C.120, the section of
LUPA governing the scope of judicial review of land use decisions:
(1) When the land use decision being reviewed was made by a quasi-
judicial body or officer who made factual determinations in support
of the decision, . judicial review of factual issues and the
conclusions drawn from the factual issues shall be confined to the
record created by the quasi-judicial body or officer, except as
provided in subsections (2) through (4) of this section.
. . .
(3) For land use decisions other than those described in
subsection (1) of this section, the record for judicial review
may be supplemented by evidence of material facts that were not made
part of the local jurisdiction's record. [/22]
If judicial review under LUPA was limited to decisions made by quasi-
judicial bodies, all LUPA review would be governed by RCW 36.70C.120(1).
There would be no need to provide for land use decisions "other than
[quasi-judicial decisions]", as the Legislature expressly did in RCW
36.70C.120(3). The only way to give effect to the language in this
latter statute is to hold that LUPA review is not limited to review of
quasi-judicial decisions. Thus, the ministerial action of DDES in making
a final decision on whether or not to require a CUP permit or to issue a
grading permit in this case is subject to review exclusively under LUPA.
Accordingly, LUPA is an adequate alternative remedy here.
The Neighbors also argue that LUPA would not provide an adequate
alternative remedy if the County issued a grading permit without making a
final decision on the CUP. This argument is wholly unpersuasive.
The statutes require the County to determine whether the proposed
use conforms with the zoning code when it reviews grading permit
applications. KCC 21A.02.040 states that:
(A) No use or structure shall be established, substituted, expanded,
constructed, altered, moved, maintained, or otherwise changed except in
conformance with this title.
KCC 21A.42.010 states that:
The following actions shall be subject to administrative review for
determining compliance with the provisions of this title and/or any
applicable development conditions which may affect the proposal: (A)
Building permits; (B) Grading permits; and (C) Temporary use
permits.
If the County later fails to follow these statutes, particularly after
making the representations it has made to the courts in this case that it
must follow these statutes, the Neighbors presumably have an issue they
may litigate in a LUPA proceeding. In short, the Neighbors again fail to
show that LUPA would not be an adequate alternative remedy.
The Neighbors further argue that the County is required to have made the
CUP determination at certain points in the grading permit application
process that have passed and has failed to do so. In support, they cite to
RCW 36.70B.070, which states that within twenty-eight days after receiving
an application, the County must provide a written statement to a project
permit applicant that states either that the application is complete or
that the application is incomplete, listing what is lacking. The statute
explains that an application may be complete if it "is sufficient for
continued processing even though additional information may be required or
project modifications may be undertaken subsequently." /23
The Neighbors also cite WAC 197-11-440, which states that an EIS
must contain a fact sheet listing "all licenses which the proposal is
known to require." They also rely on RCW 36.70B.030, which requires that
a local government or reviewing body determine whether development
regulations applicable to the proposed project or an adopted
comprehensive plan define, among other things, the type of land use
permitted at the site, including conditional uses.
Finally, during oral argument, the Neighbors argued that the County's
failure to determine that a CUP is needed violates RCW 36.70B.110, which
requires local governments planning under the growth management act to
provide a notice of application to the public within 14 days after the
determination of completeness required by RCW 36.70B.070 including
"identification of other permits not included in the application to the
extent known by the local government." /24
Assuming without deciding that the Neighbors are correct in their
assertions, that does not make LUPA an inadequate alternative remedy.
These factual and legal issues may be addressed in a LUPA proceeding at
the appropriate time.
The Neighbors next argue that even if a LUPA action were available
to challenge the decision to issue the grading permit without addressing
the CUP, that remedy would be inadequate because it would be
unnecessarily harsh and stringent. We disagree.
Citing Sorenson v. City of Bellingham, /25 they argue that
declaratory relief can be available if the only alternative remedy
available would be an unnecessarily harsh or stringent remedy. There,
the court announced that where the alternate remedy was "the harsh remedy
of blocking or overturning an election, thereby jeopardizing a needed
charter review" the alternative remedies to a declaratory judgment were
not adequate. /26
Obviously, this situation is quite different from the facts of that
case. Requiring a party to file security as a condition of a stay in a
LUPA proceeding is not uncommon. And it does not rise to the level of
either overturning an election or avoiding a needed charter review. The
principle of Sorenson has no application here
On similar grounds, we reject the Neighbors' attempt to use CR 57 to
support their claim here. That rule states that "[t]he existence of
another adequate remedy does not preclude a judgment for declaratory
relief in cases where it is appropriate." /27 Our Supreme Court has
approved limited use of this exception. /28 Moreover, in Wagers v.
Goodwin, /29 we held that where the only alternative remedy was a
motion to reopen an original dissolution judgment, a remedy granted only
under extraordinary circumstances, the case fit into this category of
exceptions. /30
The lesson of these cases is that while declaratory relief may be
available if the court finds that the other available remedies are
unsatisfactory, such situations justifying exceptional treatment are very
rare. This case is not one of those rare exceptions. Because LUPA provides
an adequate alternative means of review, declaratory relief is not proper.
The Neighbors, citing the Washington Real Property Deskbook, argue
that a declaratory judgment action is still available in some land use
cases, even after passage of LUPA. Whether or not that is true, the
Neighbors fail to show here that declaratory relief is proper because
LUPA is an inadequate alternative remedy.
Finally, the Neighbors cite to case law from other jurisdictions that,
they argue, holds that declaratory judgment suits are authorized "to
challenge a government agency's failure to enforce its own laws." Such
case law is not useful in this context. Our Legislature has created the
LUPA framework for deciding land use questions in this state. The case law
and texts from other jurisdictions do not aid us in determining whether
LUPA provides an adequate alternative remedy in this case.
Ripeness
The County, Cadman, and Weyerhaeuser also argue that this case is not ripe
for review and that no justiciable controversy exists yet. We agree.
"[A] claim is ripe for judicial determination if the issues raised
are primarily legal and do not require further factual development, and
the challenged action is final." /31 The action challenged here is not
final. The County has not yet decided whether to grant the permit or
whether a CUP is required. Thus, one of the required elements for
justiciability is not present.
When the environmental review is completed Cadman will, presumably,
make final decisions about which alternatives to pursue. It is possible
that Cadman will choose one of the mining alternative plans that does not
include mining activities within one-quarter mile of the Lu residence.
The dispute the Neighbors present is not primarily legal. Rather, it is
highly factual. It is not ripe.
The Neighbors argue that the finality requirement does not mean that
a final administrative decision is required before the court can consider
declaratory judgment. They rely on language that ripeness depends on
"the fitness of the issues for judicial decision and the hardship to the
parties of withholding consideration." /32 In another case they cite,
the court considered declaratory judgment motions where "[a]ll of the
elements necessary to a determination" of the legality of the action
questioned were already before the court, even though the special
assessment the plaintiffs were contesting had not taken place and might
not take place for many years. /33
In Arnold v. Department of Retirement Systems, /34 the court
held that a justiciable controversy existed where Arnold filed suit to
determine whether the statute barring her from receiving retirement
benefits from her ex-husband's retirement program was unconstitutional. /35
Despite the acknowledged fact that Arnold would not be eligible to
receive the benefits, if allowed, unless her ex-husband predeceased her,
an event which had not occurred, the court held that her entitlement to
benefits presented an existing dispute between parties with genuine and
opposing interests.
The Neighbors also point to the holding in Clallam County Deputy
Sheriff's Guild v. Board of Clallam County Commissioners /36 to
support their argument. In that case, the sheriff's guild asked the
court to determine that a county ordinance that created a county
personnel system conflicted unconstitutionally with a state statute. /37
As the Neighbors state, the court based its decision that there was a
justiciable controversy even before the allegedly conflicting portions of
the ordinance were enforced at least in part on its finding that "the
deputy sheriff members of the Guild ha[d] a direct and substantial
interest in securing relief from the uncertainty of their legal rights
and obligations." /38 The court also declared that:
this case raises an important constitutional question about the
supremacy of state law. Because a judicial opinion will benefit the
public, other branches of government and, in particular, other Home
Rule Charter counties, a declaratory judgment to resolve this
constitutional question is proper. [/39]
The simple answer to the Neighbors' reliance on these cases is that
they are distinguishable. The legal issue in Methodist Church,
Arnold, and Deputy Sheriff's Guild was whether an
ordinance or statute violated the Constitution, an issue a court is
particularly qualified to decide. No further factual determination was
required in any of these cases to decide that issue. The sole fact left
to be determined in Arnold was whether Arnold's ex-husband would
predecease her, a fact that would not affect the constitutionality of the
statute. Our Supreme Court in Methodist Church also recognized
that the designation of the church as a historical landmark had placed
constraints on the church, hindering United Methodist from selling its
property and using the proceeds to further its religious mission. /40
Here, in contrast to the cited cases, there are no constitutional
questions at issue. Moreover, the questions are primarily factual, not
legal. Further factual development is necessary. The Neighbors have
made no showing of exceptional hardship.
The Neighbors also quote this court's statement in Neighbors and
Friends of Viretta Park that "we believe that the trial court has
the authority, upon a proper showing of figurative foot-dragging, to set
reasonable time limitations" on the city and that "judicial intervention
might become warranted in the face of any future unreasonable delays in
entry of a final administrative decision." /41 We need not decide
whether that dictum applies here. The Neighbors have not made a showing
of "figurative foot-dragging" by the County.
We have carefully reviewed the Neighbors' other arguments and citations
regarding ripeness. They are unpersuasive.
In sum, this case is not the proper subject of declaratory relief. There
is a completely adequate alternative remedy, LUPA. That option is
available to the Neighbors once the County makes a "land use decision"
within the meaning of governing statutes. The mere fact that such a
decision has not as yet been made does not make the LUPA remedy
inadequate.
The County, and Cadman and Weyerhaeuser also argue that a declaratory
judgment action may not be employed to challenge the application or
administration of a statute. Because we have decided on other grounds that
a declaratory judgment action is inappropriate, we need not reach that
argument.
Conflict of Interest
The Neighbors argue that the court should impose its view of whether a CUP
is required before the County makes a decision because the County has a
clear conflict of interest. According to the Neighbors, it would be futile
to wait for the County to make a decision against its own interests. We
reject this highly unusual request.
The Neighbors cite a series of cases relating to futility, none of
which considers a declaratory judgment action. Futility is generally
raised in the context of an appeal of a decision where the appellant has
failed to exhaust administrative remedies and pleads that exhausting
these remedies would be futile. The question of futility is one for the
court. /42 But even the policies underlying exhaustion impose a
substantial burden on a litigant attempting to show futility. /43 The
factual circumstances of a case rarely justify a finding of futility. /44
The court in Orion Corp. v. State of Washington /45 held
that the facts of the case justified a finding of futility. But there
the State and County governments had made policy choices, embodied in
legislation and agency action, which would have prevented any development
of Orion's land. /46 Even if the County's conflict of interest motivated
its delay in making a decision in this case, as the Neighbors allege,
they fail to show that the County necessarily will not follow the
ordinance and make a decision.
The majority of the other cases they cite discuss the appearance of
fairness doctrine. /47 As the County correctly points out, application
of the appearance of fairness doctrine is limited to review of quasi-
judicial actions of local decision-making bodies. /48 Jackstadt v.
Washington State Patrol applies the provisions of the Administrative
Procedures Act regarding disqualification of reviewing officers in
adjudicative proceedings. /49 The Neighbors do not argue that that
statute governs this decision. Ritter v. Board of Commissioners of
Adams County Public Hospital Dist. 1 /50 considers the
disqualification of a single member of an adjudicative board, not the
disqualification of an entire agency. Altogether these cases provide a
good survey of the many situations in which an impartial decision-maker
is required. They do not provide authority for removing the decision
from DDES in this case. None of the cases cited holds that an agency, as
a whole, should not be allowed to proceed with this sort of decision
because of suggestions of conflict of interest.
We affirm the order dismissing the case.
AGID, and GROSSE, JJ., concur.
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