Opinion
No. 23372-3-III.
June 22, 2006.
Appeal from a judgment of the Superior Court for Spokane County, No. 01-2-03076-5, Salvatore F. Cozza, J., entered September 13, 2004.
Counsel for Appellant(s), Frank Conklin, Attorney at Law, 818 Riverside Ave Ste 640, Spokane, WA 99201-0910.
Daniel Thomas Maggs, Attorney at Law, PO Box 540, Cheney, WA 99004-0540.
Counsel for Respondent/Cross-Appellant, Dennis W Clayton, Paulsen Professional Center, 421 W Riverside Ave Ste 911, Spokane, WA 99201-0410.
Thomas J. Miller, Attorney at Law, 911 Paulsen Bldg, 421 W Riverside Ave, Spokane, WA 99201-0405.
Affirmed in part and reversed in part by unpublished opinion per Sweeney, C.J., concurred in by Brown and Kulik, JJ.
The assignments of error here are numerous, mostly procedural, and mostly unrelated to questions properly before the court. We review and will only review a straightforward decision by Superior Court Judge Salvatore Cozza. He decided that the Cheney fire code authorized the Cheney fire chief to require Thomas E. Myers d/b/a Myers' Mobile Home Park to install fire hydrants. We agree that it does. And we affirm the court's order to that effect. We affirm the trial court's CR 11 ruling and reverse the attorney fee award in favor of the City of Cheney.
FACTS
On May 10, 2000, Cheney Fire Chief John Montague issued a notice and order of correction instructing Thomas Myers to install on-site fire hydrants at Myers' Mobile Home Park.
The authority cited for this correction order is section 103.4 of the Uniform Fire Code (UFC). It authorizes the fire chief to enforce the code. The order says that UFC section 903.2 requires on-site fire hydrants capable of delivering 1,000 gallons per minute for any building or portion thereof that is more than 150 feet from the water supply on a public street. The notice says that a number of homes at Myers' Park are more than 150 feet from a public water supply. The notice orders Mr. Myers to install an unspecified number of on-site hydrants and informs him that, if he wishes to appeal, an appeals board will be appointed.
Mr. Myers appealed. The Cheney city council then passed ordinance S-22, creating the Fire Code Board of Appeals (Board).
Codified at chapter 19.07 of the Cheney Municipal Code.
Counsel for Mr. Myers and the City met with Douglas Bleeker, the Board hearing officer, to identify the disputed and undisputed facts. Mr. Myers' lawyer, Dennis Clayton, asserted that Myers' Park is an existing business, not a new business. Therefore, he argues, the fire code does not apply unless a 'distinct hazard' exists.
The hearing officer emphasized that he would address the single issue of the chief's interpretation of the Uniform Fire Code.
The fire chief issued a second notice and order of correction on August 22, 2000. This one cited a July 1996 hearing examiner's decision in a previous dispute over the installation of sidewalks at Myers' Park. That decision said that Myers' Park was 'grandfathered' under the previous mobile home park ordinance, but would be subject to the Uniform Fire Code. Attorney Clayton asked Cheney City Attorney Frank Conklin if the second notice of correction superseded the first. Mr. Conklin responded that it did not. So Mr. Myers appealed the second order also. In its final order, the Board found that the second order did supersede the first.
The Board's rules provide for an evidentiary hearing. Each party presents evidence by videotape depositions. The hearing officer then views the tapes.
Counsel for Mr. Myers and the City recorded over 33 hours of witness testimony on 19 videotapes. Hearing Officer Bleeker stopped viewing the tapes when he determined that most of the testimony was unrelated to the disputed facts. He ordered both sides to deliver a transcript of the videotapes, highlighting the relevant portions. He gave them the option of cooperating to produce a single highlighted transcript.
On March 1, 2001, Mr. Bleeker wrote to counsel that he would treat the appeal as abandoned unless he received a transcript by March 9. Daniel Maggs, a Cheney city attorney, learned that no transcript had been ordered. On March 12, Mr. Maggs filed a written request with Mr. Bleeker that Mr. Myers' two appeals be dismissed as abandoned.
Mr. Clayton wrote to Mr. Maggs and Mr. Conklin (a Cheney city attorney and the Board's advisory counsel) on March 13. He told them that he had received notice of Mr. Maggs' dismissal request to the Board, but that Mr. Myers would not order a transcript except for judicial review of the Board's decision. Mr. Clayton challenged the legal basis for dismissing his appeal for failure to provide a transcript.
The Board deemed Mr. Myers' appeals abandoned. And it dismissed them on March 15 for failure to comply with the orders of the hearing officer. The Board gave Mr. Myers until July 15 to install three hydrants. And it ordered him to pay the City's attorney fees and costs.
The Board adopted the chief's order and awarded attorney fees of $22,146.33.
On May 24, 2001, Mr. Myers filed a Land Use Petition Act (LUPA) petition in the superior court. The order to install hydrants is the only land use decision in this case. The rest of Mr. Myers' petition seeks review of the Board's interlocutory procedural rulings: specifically, the dismissal of his appeal of the second order, the demand for a transcript, and dismissal of his appeal for not providing one.
Chapter 36.70C RCW.
Mr. Myers asked the superior court to reverse the Board's order requiring a transcript, reverse the attorney fee award, and dismiss the City's challenge. He asked for an order mandating that the Board issue a decision on the merits. He asked for a declaratory order that Myers' Park is an existing business under the Uniform Fire Code. And he asked for his attorney fees for defending the City's 'frivolous' orders.
The LUPA petition also includes a separate complaint for declaratory judgment. Mr. Myers asks for a ruling as a matter of law that S-22 sec. 7, the attorney fee provision in the ordinance creating the Board, is unenforceable.
Both the City and Mr. Myers moved for summary judgment.
The court granted Cheney's motion for summary judgment affirming the decision of the Fire Code Board of Appeals. The court also granted Cheney's motion for summary judgment dismissing Mr. Myers' request for a declaratory judgment that Cheney Municipal Code (CMC) 19.07.070 is unconstitutional with respect to attorney fees.
The Cheney Municipal Code section incorporating S-22 sec. 7.
The court concluded that the attorney fee provisions of ordinance S-22 were not contrary to statute. Also it concluded that the State, by enacting RCW 4.84.370, had not preempted the issue of attorney fees for administrative proceedings. Finally, the court denied a motion by the City for CR 11 sanctions against Mr. Clayton and a motion to strike a Clayton declaration.
Mr. Myers appeals the dismissal. The City appeals the denial of sanctions and the denial of a motion to strike.
DISCUSSION
Under LUPA, the court may grant relief if one or more of the following circumstances applies: (1) The land use decision is an erroneous interpretation of the law; (2) the land use decision is not supported by substantial evidence; (3) the land use decision is a clearly erroneous application of the law to the facts; or (4) the land use decision is outside the authority or jurisdiction of the body or officer making the decision. RCW 36.70C.130(1)(b)-(e); Myers v. City of Cheney, noted at 94 Wn. App. 1009, 1999 Wash. App. LEXIS 322, at *10.
The LUPA statute defines 'land use decision.' It means (a) a determination on an application for government approval of land use; (b) an 'interpretative or declaratory decision regarding the application'; and (c) an 'enforcement by a local jurisdiction of ordinances regulating the . . . use of real property.' RCW 36.70C.020(1); Pac. Rock Envtl. Enhancement Group v. Clark County, 92 Wn. App. 777, 781, 964 P.2d 1211 (1998). This definition does not include interlocutory procedural rulings.
Interlocutory procedural rulings are not then reviewable by way of a LUPA petition. Pac. Rock, 92 Wn. App. at 781; WCHS, Inc. v. City of Lynnwood, 120 Wn. App. 668, 680 n. 24, 86 P.3d 1169, review denied, 152 Wn.2d 1034 (2004). Therefore, neither the superior court nor this court has jurisdiction, pursuant to a LUPA petition, to review assignments of error to board procedures and evidentiary rulings. Pac. Rock, 92 Wn. App. at 781-82.
The sole land use decision here is an order by the Cheney fire chief to install on-site fire hydrants at Myers' Park.
This may sound like a Catch 22 for Mr. Myers in light of our disposition in the Myers v. City of Cheney case in which we said LUPA was the proper avenue of review. Myers v. City of Cheney, noted at 115 Wn. App. 1034, 2003 Wash. App. LEXIS 205, at *21. But it is not. LUPA provides a single remedy for procedural irregularities that prevent an aggrieved party from receiving meaningful administrative review. That remedy is judicial review on the merits of the land use decision. If defective administrative procedures caused injury above and beyond an incorrect land use decision, other causes of action may provide a remedy. Pac. Rock, 92 Wn. App. at 782 n. 3. Some examples are chapter 64.40 RCW (property rights — damages from governmental actions) and 42 U.S.C. sec. 1983. Statutory and constitutional writs are available as a last resort only if none of these statutes apply. Pac. Rock, 92 Wn. App. at 782 n. 3. Mr. Myers did not allege a separate injury and did not seek additional relief. The substantive relief sought by Mr. Myers in his LUPA petition was a decision on the merits of the order to install hydrants and an order reversing the attorney fee award. Review of the other procedural defects he discusses would not entitle him to additional relief. Mr. Myers does not raise any constitutional issues on appeal.
Mr. Myers raises two recognizable issues on appeal regarding the land use decision: (1) whether the Uniform Fire Code authorizes the fire chief to order hydrants at Myers' Park; and (2) the legality of the attorney fee award. And those are the questions we will decide.
Fire Hydrants
The heart of this dispute is whether the Uniform Fire Code authorizes the City to order on-site fire hydrants at Myers' Mobile Home Park. Superior Court Judge Paul Bastine warned against '[losing] sight of the forest through the trees' in this case. Report of Proceedings (RP) (Aug. 31, 2001) at 48. He reminded the parties that the issue was whether hydrants were required in the park. Id. Judge Bastine was right.
Mr. Myers took the position in the superior court that he did not have to install any fire hydrants. He did not dispute that he is subject to the fire code. He argued that the code does not require hydrants for preexisting buildings absent a showing of a 'distinct hazard.' Accordingly, in order to invoke the authority of the fire code to issue orders, Mr. Myers contends the fire chief must find a condition that is a distinct hazard to life or property. And he argues that Myers' Park is not a distinct hazard when compared to comparable mobile home parks and other businesses in Cheney.
Mr. Myers contends that evidence of prevailing fire safety conditions city wide would have proved that Myers' Park was not a 'distinct hazard.' And the Uniform Fire Code does not, accordingly, authorize the chief to order on-site fire hydrants.
The City responds that Myers' Park is not exempt from the fire code because 'grandfathering' does not apply to public safety ordinances. And the chief can order hydrants installed for all buildings more than 150 feet from a public street water main.
We sit in the same position as the superior court when we review this administrative decision. Biermann v. City of Spokane, 90 Wn. App. 816, 821, 960 P.2d 434 (1998). We review findings of fact for substantial evidence and conclusions of law de novo. Id. The record is that created by the administrative agency, here the Fire Code Board of Appeals. RCW 36.70C.120(1)-(4); see Myers, 1999 Wash. App. LEXIS 322, at *10.
Mr. Myers contends that the decision erroneously interprets the law by ignoring Myers' Park's vested rights. He is mistaken. Washington recognizes the doctrine of vested rights for land uses that predate municipal ordinances. But that doctrine does not apply to health and safety regulations. Rhod-A-Zalea 35th, Inc. v. Snohomish County, 136 Wn.2d 1, 16, 959 P.2d 1024 (1998). Specifically, buildings must comply with the fire code even if they predate the code. City of Seattle v. Hinckley, 40 Wash. 468, 471, 82 P. 747 (1905).
By its own terms, the Uniform Fire Code applies to any condition arising after its adoption. UFC sec. 102.1; Certified Board Record (BR) at 3. UFC sec. 903.2 applies to buildings 'hereinafter constructed or moved into or within the jurisdiction.' BR at 15. It requires on-site fire hydrants capable of delivering the required fire flow as set by the chief for any building or portion thereof more than 150 feet from the water supply on a public street, 'when required by the chief.' UFC sec.sec. 903.2, 903.3; BR at 15. The State adopted the Uniform Fire Code for all counties and cities in 1989. RCW 19.27.031, BR at 105-06. The code therefore applies to all conditions arising after 1989.
A fire chief must find a distinct hazard to invoke the authority of the code for conditions already existing when the code was adopted. But that is not the case here. Mr. Myers bought Myers' Park in 1995. Homes were thereafter constructed upon or moved into spaces that were more than 150 feet from street mains. The whole 'distinct hazard' discussion is, then, superfluous to our analysis of this case. A mobile home is certainly a building for the purposes of the fire code. And homes were constructed or moved into or within Myers' Park after 1989. Some homes are more than 150 feet from a public street water main. The Uniform Fire Code therefore requires that on-site fire hydrants and mains capable of supplying the specified flow rate shall be provided 'when required by the chief.' UFC sec. 903.2.
The fire chief is then authorized to order Myers' Park to comply. A plain reading of the code does not require that the chief satisfy every property owner that his lack of compliance with the code is a distinct hazard to life or property. The 'distinct hazard' language applies solely to preexisting conditions that are otherwise beyond the chief's authority. UFC sec. 102.1. For conditions arising after the adoption of the code, such as those at issue here, '[w]hen the chief finds any building, premises, vehicle, storage facility or outdoor area that is in violation of this code, the chief is authorized to issue corrective orders.' UFC sec. 103.4.1.1. This makes sense. The pertinent portions of this fire code are calculated to protect life and limb.
Mr. Myers cites to another earlier ruling, affirmed by this court, that his park was grandfathered under Cheney's mobile home park ordinance. See Myers, 1999 Wash. App. LEXIS 322. But that ruling settled the law of this case: city ordinances other than the mobile home park ordinance do apply to Myers' Park. Id. at *5. Mr. Myers was not grandfathered, for example, under the sidewalk ordinance. This court affirmed that the sidewalk ordinance applied, but that Mr. Myers' improvements did not constitute 'new construction' under the statutory definition. Id. at *7-8.
The superior court correctly denied Mr. Myers relief from the chief's order under LUPA. The land use decision ordering the installation of on-site fire hydrants at Myers' Park (1) is a correct interpretation of the law; (2) is supported by substantial evidence; (3) is a correct application of the law to the facts; and (4) is within the authority of the fire chief and the Fire Code Board of Appeals. See RCW 36.70C.130(1)(b)-(e).
Again, because we can provide no relief other than a decision on the merits of the dispute, we will not review interlocutory procedural rulings under LUPA that are not land use decisions as defined in the statute. Pac. Rock, 92 Wn. App. at 781. We will not, therefore, address Mr. Myers' issues regarding the Board's authority to order a transcript, alleged ex parte contacts between the Board and the City's lawyers, or exclusion of evidence.
Attorney Fees
Mr. Myers next argues that RCW 4.84.370 preempts the field as to attorney fee awards in administrative appeals and allows fees solely for appeals to the court of appeals or the supreme court. He contends that Cheney ordinance S-22 sec. 7 conflicts with this state statute by awarding fees at the Board level. He also asserts the common law rule that the court may award fees solely pursuant to statute, contract, or recognized theory in equity. And, since no statute or other basis authorizes administrative review boards to award fees here, Cheney may not enact ordinances awarding such fees. Finally, Mr. Myers argues that imposing attorney fees at the administrative board level would have a chilling effect on citizens' ability to challenge questionable agency actions.
The City argues that there is Washington precedent for administrative tribunals' awarding attorney fees, and that the fee provision here is consonant with state law.
We review legal issues arising out of administrative actions for error of law. Cohn v. Dep't of Corr., 78 Wn. App. 63, 66, 895 P.2d 857 (1995). RCW 4.84.370 provides for the prevailing party's attorney fees on appeal of a land use dispute, if that party also prevailed below. RCW 4.84.370(1). The statute does not provide for fees in the superior court or the administrative agency; it provides only for counsel's fees before the court of appeals or the supreme court. Baker v. Tri-Mountain Resources, Inc., 94 Wn. App. 849, 854, 973 P.2d 1078 (1999). Contrary to Mr. Myers' contention, however, the term 'does not provide' does not mean 'precludes.' Arguably, then RCW 4.84.370 does not preclude the award of fees in proceedings other than those before the appellate courts. It simply does not provide them. We need not interpret RCW 4.84.370, however. Even if it does not preclude administrative boards from awarding fees, no authority exists for this Board to award fees.
Washington follows the American rule, whereby the prevailing party ordinarily does not recover its attorney fees. Cohn, 78 Wn. App. at 66. Attorney fees are recoverable only if specifically authorized (1) by statute, (2) by agreement of the parties, or (3) upon a recognized equitable ground. Clark v. Horse Racing Comm'n, 106 Wn.2d 84, 92, 720 P.2d 831 (1986). Moreover, the power to award fees must affirmatively be found under the same law that creates the right of review. Id. at 93. Here, the law that creates the right of review is the Uniform Fire Code. UFC sec. 103.1.4 provides for the creation of an appeals board with five members appointed by the executive body (the mayor) with the local fire chief as ex officio member and secretary, which is what Cheney did. The code says nothing about awarding attorney fees to the prevailing party. It authorizes the board to adopt 'reasonable' rules and regulations for the conduct of its investigations. UFC sec. 103.1.4. At a minimum, however, 'reasonable' means in accordance with Washington law. Lenci v. City of Seattle, 63 Wn.2d 664, 667, 388 P.2d 926 (1964) (cities may enact regulations not in conflict with general laws).
The cases cited by the City for the proposition that administrative tribunals routinely award fees are distinguishable. The fee awards in those cases were authorized by statute. See Lewis County v. Pub. Employment Relations Comm'n, 31 Wn. App. 853, 865, 644 P.2d 1231 (1982) (RCW 41.56.160); State ex rel. Wash. Fed'n of State Employees v. Bd. of Trustees of Cent. Wash. Univ., 93 Wn.2d 60, 69, 605 P.2d 1252 (1980) (RCW 41.56.160).
Each side must, then, pay its own lawyers.
Motion to Amend Complaint
Three years after filing his LUPA petition and declaratory judgment action, Mr. Myers moved the court to amend his complaint to add an action for damages against the fire chief, the director of public works, and the mayor in their individual capacities. He alleged they violated his constitutional rights while acting under color of law when they created the Board and conspired to carry out the chief's orders.
But his argument here on appeal includes no citation to the record and consists solely of a conclusory declaration that the motion should have been granted.
Assignments of error unsupported by argument or authority are deemed waived. In re Marriage of Haugh, 58 Wn. App. 1, 6, 790 P.2d 1266 (1990).
We will not then address this issue.
CR 11 Sanctions
In the superior court, Mr. Myers resurrected a subject matter jurisdiction issue he had raised in a companion case. After Myers' Park had received all the necessary permits and was fully operational, the City ordered Mr. Myers to file a binding site plan. Mr. Myers had argued at the time that this was a collateral attack on the legality of the park which, under the doctrine of finality, the hearing examiner lacked subject matter jurisdiction to review. Mr. Myers lost the binding site plan case. On review, he asked this court not to address the subject matter jurisdiction issue, and we did not address it.
The City complains that Mr. Myers raised the same issue in this fire hydrant case. He argued that any code compliance issue not raised by the City during the permitting process was waived. The chief did not order hydrants in 1996, so he could not order them in 2000. Once the certificate of occupancy was issued, the courts lost jurisdiction to hear all future disputes, including the hydrants order. RP (June 4, 2004) at 14-15. The City argued that Mr. Myers had already raised this argument four times and lost four times. It requested CR 11 sanctions. The court agreed with the City that the jurisdiction issue was settled. The judge was satisfied, however, that Mr. Myers raised the issue in good faith and it was not frivolous. The court denied sanctions.
Both parties viewed as res judicata Judge Bastine's findings entered in denying certiorari on Mr. Myers's constitutional writ petition. City, RP (June 4, 2004) at 17; Mr. Myers, RP (June 4, 2004) at 19. The City argued that this court had affirmed Judge Bastine's findings and conclusions. RP (July 16, 2004) at 4. We did not. Judge Bastine denied certiorari. This court affirmed that the superior court lacked jurisdiction to review these administrative proceedings for arbitrary or illegal acts pursuant to a constitutional writ — that is, to enter findings and conclusions — because an adequate statutory remedy was available in LUPA. Myers, 2003 Wash. App. LEXIS 205, at *21. The trial court here adopted Judge Bastine's findings, which it was at liberty to do. Clerk's Papers at 96. But the court was not bound by those findings.
The City appeals this ruling, contending that arguments advanced by Mr. Myers attorney, Mr. Clayton, are absurd. CR 11 sanctions were mandatory, the City contends, and the trial court abused its discretion in denying them.
We review the trial court's legal interpretation of court rules de novo. City of College Place v. Staudenmaier, 110 Wn. App. 841, 845, 43 P.3d 43 (2002). Whether particular conduct violates CR 11, however, is a matter of trial court discretion. Cascade Brigade v. Econ. Dev. Bd. for Tacoma-Pierce County, 61 Wn. App. 615, 619, 811 P.2d 697 (1991). We review the decision for abuse of discretion. State ex rel. Quick-Ruben v. Verharen, 136 Wn.2d 888, 903, 969 P.2d 64 (1998).
On its face, CR 11 applies to written and signed motions, pleadings, and memoranda. It says an attorney signing such a document thereby attests that it is well grounded in fact and law and is not being used to harass or delay. The rule says nothing about oral argument. It says the court may, on motion or sua sponte, award an appropriate sanction for signing and filing a pleading, motion, or memorandum contrary to the rule. CR 11(a), (b).
The trial court determined that CR 11 was not violated here. The judge was satisfied that — although the argument was not persuasive — it was not frivolous, was offered in good faith, and was properly before the court. This was not an abuse of discretion.
Motion to Strike Trial Court Declaration
Mr. Clayton contacted Bruce Holloway, one of the five Board members, in an effort to prove that the Board's handling of his client's appeal had not been fair. The City learned of the contact and shut down Mr. Holloway by declaring that he was represented by counsel, Mr. Conklin. Mr. Clayton filed a declaration on October 17, 2001, stating that Mr. Holloway told him his participation in the Myers appeal had been a sham. Two days later, the City filed a declaration that Mr. Holloway was a speaking agent for the City and moved to strike Mr. Clayton's declaration on the grounds it was obtained in violation of the prohibition against direct contact with a person represented by counsel, RPC 4.2. The court denied the motion to strike. The City argues that the court erred in refusing to strike a declaration based on information obtained in violation of RPC 4.2. This issue is moot. Mr. Clayton's campaign to expose perceived incompetence and corruption on the Board is not relevant to the land use decision in Mr. Myers' LUPA petition or his declaratory action regarding attorney fees. The court denied the City's motion to strike this declaration without comment. However, given the posture of this case, the trial court would not abuse its discretion by declining to be drawn into scrutinizing years of filings for relevance or admissibility.
Motion to Strike Appendix to Brief.
The City moves this court to strike from the appendix to Mr. Myers' brief what it calls an extraneous report by an expert witness.
It appears that this witness filed a report with the Board. We cannot find the report in the Board Record, but Chief John Montague alludes to it in a response at BR 682. If it was before the Board, the report is not 'extraneous.' It addresses the 'distinct hazard' issue, however. Accordingly, it is, based on our analysis, superfluous. But this is not a reason to strike.
HOLDING
We affirm the superior court's decision affirming the second order of correction, August 22, 2000. We reverse the attorney fee award. We affirm the denial of CR 11 sanctions. We affirm the superior court's denial of the motion to strike. And we deny the City's motion to strike the appendix from Mr. Myers' appellate brief.
A majority of the panel has determined that 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 KULIK, J., concur.