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Recomp of Washington Inc. v. City of Ferndale

October 14, 1996

RECOMP OF WASHINGTON, INC., A WASHINGTON CORPORATION, F.M. ENGINEERING CORPORATION, A CANADIAN CORPORATION, AND JOHN AND BETTY HOKSBERGEN, HUSBAND AND WIFE, APPELLANTS,
v.
CITY OF FERNDALE, A MUNICIPAL CORPORATION, RECYCLING AND DISPOSAL SERVICES, INC., A WASHINGTON CORPORATION, W. EARL ESSEX AND ERNESTINE ESSEX, HUSBAND AND WIFE, AND HAROLD U.S. ELDRED AND JUDY ELDRED, HUSBAND AND WIFE, RESPONDENTS.



Appeal from Superior Court of Whatcom County. Docket No: 94-2-02138-5. Date filed: 01/13/95. Judge signing: Hon. Michael F. Moynihan.

Authored by Mary K. Becker. Concurring: Walter E. Webster, Susan R. Agid

The opinion of the court was delivered by: Becker

BECKER, J. -- The appellants (collectively, Recomp) appeal the superior court's dismissal of their amended petition for statutory and constitutional writs of certiorari. Alleging violations of the State Environmental Policy Act (SEPA), the petition sought review of the City of Ferndale's issuance of a conditional land-use permit. Following Waterford Place Condominium Ass'n. v. Seattle, 58 Wash. App. 39, 791 P.2d 908, review denied, 115 Wash. 2d 1019, 802 P.2d 126 (1990), a decision we see no reason to overrule, and after considering the request for a constitutional writ, the superior court dismissed the petition. We affirm.

FACTS

Recomp's competitor, Recycling and Disposal Services, Inc. (RDS), applied to the city of Ferndale for a Conditional Use Permit for a waste transfer and recycling project. RDS leased the real property in question from the Eldreds and Essexes. Under SEPA regulations, the City issued a Determination of Nonsignificance to RDS, finding that the project would have no probable significant adverse environmental impacts. Recomp opposed the issuance of the DNS, criticized the environmental checklist for the project, and requested preparation of an Environmental Impact Statement. After a public hearing before the City Planning Commission regarding the permit, the City issued the permit to RDS. Recomp appealed to the Ferndale City Council. The council denied the appeal on December 5, 1994.

Recomp next appealed to the superior court with a petition for writs of statutory and constitutional certiorari, challenging the permit and raising SEPA claims. The petition was filed on December 15, 1994, within the ten-day limitation period provided for such appeals in the Ferndale Municipal Code. *fn1 This initial petition failed to name the owners of the property. Landowners are indispensable parties to a land use action. South Hollywood Hills Citizens Ass'n for the Preservation of Neighborhood Safety and the Env't v. King County, 101 Wash. 2d 68, 77-78, 677 P.2d 114 (1984). Recomp filed an amended petition for writ of review on December 23, 1994, naming the Eldreds and Essexes as additional defendants. RDS and the City moved to dismiss Recomp's petition claiming that the failure to join indispensable parties within the ten-day limitation period was fatal. The trial court agreed, and dismissed the petition.

LIMITATION PERIOD

In dismissing the petition, the trial court relied on Waterford Place Condominium Ass'n v. Seattle, 58 Wash. App. 39, 791 P.2d 908, review denied, 115 Wash. 2d 1019, 802 P.2d 126 (1990). Waterford held dismissal to be the appropriate remedy on virtually identical procedural facts. In Waterford, as here, the initial filing of a petition for a writ of review of the land use action occurred within the limitation period provided by municipal ordinance. The initial petition named the City as the sole defendant. It was not until after the municipal limitations period had run, but within 30 days of the decision appealed from, that they amended the petition to include the landowners, who were indispensable parties. Failure to name indispensable parties within the limitations period ordinarily warrants dismissal; later joinder of such parties is permitted only when the omission is due to excusable neglect. Waterford, 58 Wash. App. at 42; CR 15(c) There is no contention before us that this case presents either excusable neglect or any other exception to the general rule. Finally, the plaintiff in Waterford, like Recomp, argued that the 30-day limit in former RCW 43.21C.075, rather than the municipal ordinance, applied because the appeal raised SEPA issues. *fn2 Recomp asks us to overrule Waterford's holding that any appeal asserting both SEPA and non-SEPA issues must be filed within the applicable time limit for the non-SEPA issues, if that period is shorter. The Waterford court carefully considered, and rejected, each of the arguments put forth by Recomp in the present appeal: academic authority, plain reading of the statute, and legislative history. We find the analysis in Waterford to be sound and see no reason to reconsider the holding of that case.

Recomp's petition did differ from the one at issue in Waterford in that it requested a constitutional writ as well as a statutory writ. In dismissing Recomp's petition, the trial court made no explicit reference in either its written or oral ruling to the request for a constitutional writ. Recomp now argues that the omission of an explicit reference to the constitutional writ theory means that the trial court failed to consider it, and asks that we remand the case to allow such consideration to take place, relying on Bridle Trails Community Club v. Bellevue, 45 Wash. App. 248, 251-54, 724 P.2d 1110 (1986).

In Bridle Trails this court pointed out what was not apparent to the litigants in that case: that the superior court has inherent constitutional authority to entertain a writ of review. Exercise of this inherent power is discretionary, and ordinarily does not occur if either a statutory writ or a direct appeal is available, unless the appellant can show good cause for not using those methods. Bridle Trails, 45 Wash. App. at 253. In Bridle Trails, the appellants' petition for certiorari did not specifically request review under the court's inherent powers, and this court remanded because it could not determine from the record whether the superior court considered exercising its inherent power to review.

In contrast, the record before us demonstrates that the trial court was aware of its inherent power. Not only did Recomp specifically request a constitutional writ, but also the parties fully presented and argued the constitutional writ theory in written briefing and oral argument to the trial court. There is no reason to suppose the trial court simply overlooked this theory when it dismissed Recomp's petition. Recomp could have asked the trial court to make an explicit ruling either during the hearing or when the order was presented, but did not. We will not consider such a request made for the first time on appeal. RAP 2.5(a).

Affirmed.

WE CONCUR:

Walter E. ...


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