                                                                                                       FILED
                                                                                            CQuf`i I OF APPEALS
                                                                                                     DIVISION   11



                                                                                          21111.1
                                                                                                    JUL 1 5 t iJO: i
      IN THE COURT OF APPEALS OF THE STATE OF WASHING?

                                                                                          BY\
                                         DIVISION II

SCOTT K. LANGE and ELIZABETH R.                                     No. 44476 -3 - II
LANGE, husband and wife, and Trustees of
the Lange Family Trust,

                               Appellants,


        v.



CLALLAM COUNTY, a municipal
corporation; SHEILA ROARK MILLER,
DIRECTOR OF COMMUNITY
DEVELOPMENT,                                                  UNPUBLISHED OPINION


                               Respondents.


        WoxswICK, J. —     Scott and Elizabeth Lange ( collectively, Lange) applied for a writ of

mandamus compelling Clallam County officials to investigate their neighbor' s property and

determine whether its structures violated code requirements. After issuing the writ, the superior

court granted the County' s motion to quash the writ and dismissed Lange' s action. Lange

appeals, arguing that the superior court erred by ( 1) quashing the writ and ( 2) failing to award

him attorney fees and costs. Because most of Lange' s allegations challenged land use decisions

reviewable under   the Land Use Petition Act,'   and the remaining allegation was an insufficient

ground to support the writ, we affirm the superior court' s decision to quash the writ.




1
    Chapter 36. 70C RCW.
No. 44476 -3 -II



                                                         FACTS


         Lange owned property adjacent to property owned by David and Krisanne Cebelak

 collectively, Cebelak).   Both properties abutted the shoreline of Clallam Bay. In 1997, 2007,

and 2012, Lange challenged building permits issued to Cebelak and also complained to Clallam

County that structures on Cebelak' s property violated code requirements.

         In December 1996, the County issued a building permit to Cebelak for the construction of

a single family home with an attached storage building. In May 1997, Lange protested the

permit' s issuance to the Clallam County Department of Community Development (hereinafter

 the Department,"     unless otherwise specified).            Lange alleged, inter alia, that the Department had


issued the permits without inspecting the site and that the home was being constructed in
                                                                                                           2
violation of setback requirements,         building     codes, and   the Shoreline Management Act.


         The Department'    s   director   replied, "   The site in question has been inspected numerous


times   by   both the Clallam   County Building         and   Planning   Division   staff,"   and that the inspectors


found that the project met all applicable code requirements. Clerk' s Papers ( CP) at 134. The


director further asked Lange to provide any specific information he had to the contrary. Lange

later averred3 that he did not pursue his protest further because, based on the director' s response,


he believed that he could not prevail in a legal challenge. Cebelak' s home and storage building

were constructed in 1997.


         In 1998, the Department granted Cebelak a permit exemption allowing him to construct a

bulkhead. Because the bulkhead' s value was less than $2, 500, the Department concluded that


2 Chapter 90. 58 RCW.

3 Lange filed a declaration in opposition to the County' s motion to quash the writ.


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No. 44476 -3 -II



the proposal was exempt from the substantial development permit process under former WAC

173- 27- 040( 2)(   a) (   1997). In addition, the Washington Department of Fish and Wildlife issued a


hydraulic project approval for Cebelak' s proposed bulkhead. The bulkhead was constructed in


1998.


        In December 2006, a major storm damaged the Clallam Bay shoreline and exposed

Cebelak' s bulkhead. Lange averred that he then became aware of the bulkhead for the first time.

        After the storm, Cebelak sought, and the Department of Fish and Wildlife issued, an


emergency declaration and a hydraulic project approval authorizing repairs to the bulkhead.

Cebelak finished repairing the bulkhead in January 2007.

        Also in 2007, Lange filed a six -
                                        point complaint with the Department, requesting that it

investigate Cebelak' s property. Lange claimed that ( 1) Cebelak failed to obtain permits to

construct   the   storage    building; ( 2)   Cebelak misrepresented his intended use of the storage


building,   which    Lange     alleged was     actually   a cabin; ( 3)   Cebelak misrepresented the value of the


bulkhead in 1998 to obtain the permit exemption and further constructed the bulkhead in a

location that did     not   comply    with setback requirements; (         4) Cebelak moved the bulkhead when


repairing it in 2006 to       a   location   where   it further   encroached on   the   required setback area; (   5)


Cebelak intentionally misrepresented his lot' s size when applying for the 1996 permit to

construct his home, and the County improperly granted a variance from setback requirements;

and ( 6) Cebelak violated the terms of a permit exemption relating to construction of the home

because the exemption was available for owner- occupied buildings and Cebelak rented the home


after construction was complete.




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No. 44476 -3 -II



         Lange and the Department met to discuss his complaint, and Lange provided supporting

documents. The Department' s staff reviewed the documents and, accompanied by staff from the

Department of Fish and Wildlife, visited Cebelak' s property. The Department began to draft a
                                                                                                                       4
written response    to Lange' s complaint,   but it did   not   issue   a   final determination   on   its   merits.




         In 2012, Lange submitted another land use complaint to the Department' s director.


Lange' s complaint alleged that Cebelak' s storage building and bulkhead each violated the

Clallam County Code ( CCC) and other laws. Specifically, Lange alleged that Cebelak' s storage

building ( 1) had   been   constructed without   the issuance     of required permits, ( 2)   had been


constructed in a location that violated shoreline setback requirements, and ( 3) violated the terms


of Cebelak' s permit because Cebelak rented it to others rather than living in it himself. With

respect to the bulkhead, Lange further alleged that (4) Cebelak constructed the bulkhead in a


location that the   County' s   1998   permit exemption    had   not approved, (     5) Cebelak improperly

obtained permits to repair the damaged bulkhead in 2007, and ( 6) Cebelak failed to obtain other

permits that should have been required before repairing the bulkhead. The director declined to

investigate or comment on Lange' s complaint because it was the subject of pending litigation

between Lange and Cebelak and because the County inspected Cebelak' s property before issuing

permits.




         In November 2012, Lange commenced this action against the County in superior court by

applying for a writ of mandamus. Lange' s application sought a writ compelling the County and


4
    Relying on a legal opinion issued by the County' s deputy prosecuting attorney, the Department
concluded that it would not be a shoreline management violation to rent a home constructed
pursuant to permit exemptions. After the Department informed Lange of this determination,
Lange threatened to sue the County, and the parties ceased cooperating.



                                                      4
No. 44476 -3 -II



the Department' s director " to enforce the [ CCC] by investigating the code complaint [ filed by

Lange in 2012]     and provid[     ing]   a   final   written   decision   within     40 days."       CP at 7. Lange also


requested reasonable and statutory costs including attorney' s fees.
                                                      5
         The   superior court      issued the    writ,    commanding the County to ( 1) investigate and

enforce as Lange requested or (2) show cause why it should not do so. The County moved to

quash the writ, arguing that mandamus was inappropriate because, inter alia, Lange could have

challenged the permitting decisions in a petition brought under the Land Use Petition Act

 LUPA), chapter 36. 70C RCW.


         The superior court joined its show cause order and the County' s motion to quash, and

both parties submitted supporting declarations with attached exhibits. After the hearing, the

superior court quashed       the   writ and     dismissed the         case "   in light   of   LUPA." CP at 277.


         Lange appeals.


                                                          ANALYSIS


         Lange argues that the superior court erred by dismissing this action. We disagree.

A.       Standard ofReview

         A trial court' s decision on a motion to quash a writ of mandamus is reviewed as a


decision on a CR 12( c) motion for judgment on the pleadings. Bock v. Bd. ofPilotage Comm 'rs,

91 Wn.2d 94, 97, 586 P. 2d 1173 ( 1978). However, a motion for judgment on the pleadings must


be treated as a motion for summary judgment when " matters outside the pleadings are presented

to   and not   excluded by   the trial    court."      CR 12( c); P.E. Sys., LLC           v.   CPI   Corp.,   176 Wn.2d 198,


206, 289 P. 3d 638 ( 2012). Here both parties presented, and the superior court considered,


5 The superior court issued an alternative writ of mandamus under RCW 7. 16. 180.



                                                                  5
No. 44476 -3 -II



declarations and attached exhibits outside the pleadings. Therefore we review the superior


court' s decision as an order granting summary judgment.

          Summary judgment is appropriate when there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law. We review an order granting summary

judgment de novo, engaging in the same inquiry as the trial court. TracFone Wireless, Inc. v.

Dep 't   of Revenue, 170 Wn.2d 273, 280 -81, 242 P. 3d 810 ( 2010). Thus, we consider the record


and draw all reasonable inferences in the light most favorable to the nonmoving party. Schaaf v.

Highfield, 127 Wn.2d 17, 21, 896 P. 2d 665 ( 1995).


B.        Writ ofMandamus

          Lange primarily argues that the superior court erred by quashing the writ of mandamus.

We affirm the superior court, although in part we do so on alternative grounds.


          Mandamus is an extraordinary writ that may be issued " to compel the performance of an

act which   the law especially        enjoins as a   duty resulting    from    an office."   RCW 7. 16. 160. Walker


v.   Munro, 124 Wn.2d 402, 407, 879 P. 2d 920 ( 1994). "[                  T] he remedy of mandamus contemplates

the necessity    of   indicating the    precise   thing   to be   done."    Walker, 124 Wn.2d at 407.


          Here, Lange' s application requested a writ compelling the County and the Department' s

director " to   enforce    the [ CCC]    by investigating [ Lange' s]       code complaint ...    and provid[ ing] a

written   final decision     within    40 days.    CP at 7. In turn, Lange' s code complaint alleged that ( 1)


Cebelak failed to      obtain   all   required permits     before constructing the     storage   building, ( 2)   the


County authorized Cebelak to construct the storage building in a location violating shoreline

setback requirements, (        3) Cebelak violated the terms of his building permits by renting the

storage   building    to   other people, (   4) Cebelak constructed the bulkhead in a location that the




                                                              6
No. 44476 -3 - II



County' s       1998   permit exemption      had   not approved, (         5) the County improperly issued permits to

Cebelak authorizing repairs to the damaged bulkhead in 2007, and ( 6) Cebelak failed to obtain

other necessary permits before repairing the damaged bulkhead.

          1.    Mandamus Is Not Available To Review Land Use Decisions


          As a threshold issue, the parties dispute whether LUPA' s exclusive remedy provision,

RCW 36. 70C. 030, barred Lange'              s application    for the      writ of mandamus.      RCW 36. 70C. 030( 1)


provides that LUPA " shall be the exclusive means of judicial review of land use decisions,

except    that [LUPA]      does   not   app ly to ... (   b) [ j]udicial     review ofapplications for a writ of

mandamus         or prohibition." (     Emphasis      added.)      Thus LUPA' s exclusive remedy provision did

not bar Lange' s application for the writ of mandamus. Stafne v. Snohomish County, 156 Wn.

App.   667, 687, 234 P. 3d 225 ( 2010),            review granted on other issues and aff'd, 174 Wn.2d 24

 2012).


          However, the method for obtaining the writs of certiorari, mandamus, and prohibition

 does not apply to state agency action reviewable under chapter 34. 05 RCW or to land use

decisions of local jurisdictions           reviewable under [           LUPA]."   RCW 7. 16. 360 ( emphasis added);


see   Evergreen Wash. Healthcare Frontier LLC                      v.   Dep' t of Soc. &   Health Servs.,   171 Wn. App.

431, 452, 287 P. 3d 40 ( 2012) ( considering               state   agency     action),   review denied, 176 Wn.2d 1028


 2013).        Therefore Lange' s application for the writ of mandamus had to be denied to the extent it

challenged land use decisions reviewable under LUPA. See Evergreen, 171 Wn. App. at 452.

          As mentioned above, Lange' s code complaint made six allegations. Five of these


allegations challenged the County' s land use decisions related to either construction of the




                                                                   7
No. 44476 -3 - II


                                                                        6
storage   building   in 1997   or repairs   to the bulkhead in 2007.        First, Lange' s code complaint


alleged that, in issuing the building permit for Cebelak' s storage building, the County ( 1)

incorrectly exempted the storage building from certain requirements and ( 2) incorrectly

determined that the storage building' s location complied with shoreline setback requirements.

Second, Lange' s code complaint further alleged that the County erroneously permitted repairs to

Cebelak' s bulkhead because ( 3) Cebelak failed to originally construct the bulkhead in the

location that the    County    had   approved   in 1998, (   4) the County improperly issued permits

authorizing Cebelak to repair the damaged bulkhead in 2007, and ( 5) Cebelak failed to obtain

other necessary permits before repairing the damaged bulkhead. Because Lange' s mandamus

application challenged these five land use decisions, we hold that mandamus was unavailable


under RCW 7. 16. 360.


          But Lange' s code complaint also alleged that Cebelak improperly used his storage

building as a rental property after obtaining building permits premised on his representation that

he would personally use it. This allegation does not challenge a land use decision. See RCW


6 RCW 36.70C. 020( 2) provides in part:
       Land use decision" means a final determination by a local jurisdiction' s body or
          officer with the highest level of authority to make the determination, including
          those with authority to hear appeals, on:
                a)   An application for a project permit or other governmental approval
          required by law before real property may be improved, developed, modified, sold,
          transferred, or used ... ;

                b) An interpretative or declaratory decision regarding the application to a
          specific    property    of   zoning    or   other   or rules regulating the
                                                                 ordinances

          improvement, development, modification, maintenance, or use of real property;
          and

                c)   The enforcement by a local jurisdiction of ordinances regulating the
          improvement, development, modification, maintenance, or use of real property.




                                                             8
No. 44476 -3 - II



36. 70C. 020( 2);    see also Samuel' s Furniture, Inc. v. Dep' t ofEcology, 147 Wn.2d 440, 456, 54

P. 3d 1194 ( 2002) ( LUPA            does not bar an action alleging that a person violated the conditions of
a permit).   Therefore we review Lange' s application for a writ of mandamus requiring the

County to investigate whether Cebelak' s use of the storage building violated the terms of his

building permit.

          2. Mandamus Is Not Appropriate Because the County Lacked a Clear Duty To Act

          To support an application for a writ of mandamus, the applicant must show ( 1) the


official subject     to the   writ   has   a clear   duty to   act; (   2) the applicant has no other plain, speedy, and

adequate remedy in the ordinary course of law; and ( 3) the applicant is beneficially interested in

performance of the official duty. Eugster v. City ofSpokane, 118 Wn. App. 383, 402, 76 P. 3d

741 ( 2003);   see   RCW 7. 16. 160, .        170. Because we decide as a matter of law that the County had

no clear duty to act, we do not reach the other elements.

          Lange asserts that the County, through the Department' s director, had a clear duty to act

by investigating his allegation that Cebelak violated the terms of his permit and by making a

final   enforcement     decision.' We disagree.


          An applicant for a writ of mandamus must show that the party subject to the writ has a

clear duty to act, and this duty must be ministerial rather than discretionary. Seattle Times Co. v.

Serko, 170 Wn.2d 581, 588 -89, 243 P. 3d 919 ( 2010). The writ of mandamus will not issue to


compel the performance of a discretionary act in the absence of arbitrary and capricious

7 Lange claims that the County did not argue below that there was no clear duty to act on the
code complaint. But Lange is mistaken. The County' s motion to quash argued that any duty to
investigate .
            was merely discretionary. We note that the County' s response brief does not make
this argument. Regardless, we may affirm the judgment below on any ground supported by the
record.    RAP 2. 5(   a).
No. 44476 -3 - II


           8
conduct.        Walker, 124 Wn.2d              at   410; State    ex rel.   Pac. Bridge Co.   v.   Wash. Toll Bridge Auth., 8


Wn.2d 337, 342 -43, 112 P. 2d 135 ( 1941).                        Prosecuting violations of the law is generally

recognized as a "      highly discretionary"               act.   Walker, 124 Wn.2d at 411.


         Lange claims that the County had a mandatory duty to investigate the allegation in his

land use complaint under provisions of the Clallam County Home Rule Charter and under

chapter' 20. 08 CCC. We disagree.


         Whether an ordinance creates a clear duty to act is a question of law reviewed de novo.

See River Park Square, LLC                v.   Miggins, 143 Wn.2d 68, 76, 17 P. 3d 1178 ( 2001).                 The rules of


statutory interpretation apply equally to                    ordinances.       World Wide Video, Inc. v. City of Tukwila,

117 Wn.2d 382, 392, 816 P. 2d 18 ( 1991).                         Thus when construing an ordinance, our fundamental

objective      is to carry   out   the   legislative       body' s   intent.   Dep' t   of Ecology   v.   Campbell & Gwinn,


LLC, 146 Wn.2d 1, 9, 43 P. 3d 4 ( 2002).                     When an ordinance has a plain meaning, we give the

plain   meaning     effect.    Campbell &             Gwinn, 146 Wn.2d at 9. To determine the plain meaning of

an ordinance, we look to all that is written in the ordinance and in related ordinances that

discloses the legislative intent               of   the   provision   in   question.    Campbell & Gwinn, 146 Wn.2d at


11.   Presumptively, use of the word " shall" denotes an imperative and creates a mandatory duty.

Clark   County Sheriff v. Dep' t           of Soc. & Health Servs., 95 Wn.2d 445, 448, 626 P. 2d 6 ( 1981).




8 Lange appears to claim that the director' s refusal to investigate his 2012 complaint was
arbitrary and capricious. We disagree. Arbitrary and capricious action means action that is
willful and unreasoning, taken in disregard of the facts and circumstances. Freeman v. State,
178 Wn.2d 387, 402, 309 P. 3d 437 ( 2013).                         Here, the director declined to investigate Lange' s
2012 complaint because ( 1) the issues it presented were already being litigated in Lange' s
lawsuit against Cebelak and ( 2) the County inspected Cebelak' s property when considering his
applications for permits. Because the director' s refusal considered the facts and circumstances, it
was not arbitrary and capricious.




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No. 44476 -3 -II



          a. The County' s Home Rule Charter

          Lange first asserts that section 4.25 of the Clallam County Home Rule Charter imposes a

clear duty to enforce code violations by investigating all complaints. Lange is mistaken.

          Section 4. 25 provides in part:


          The Director of the Department of Community Development shall administer,
          enforce and advise the County Commissioners on all laws, except health, with
          respect   to   the   environment,    natural     resources,   and    land   and   shoreline

          development, including, but not limited to, zoning, land divisions, environmental
          policy, building and fire codes, forest management, mining, agriculture,
          watershed planning, and floodplains.

Clallam    County   Home Rule Charter § 4. 25.


          When read together with a related section, this provision clearly vests the Department' s

director with powers and does not create a clear duty to act. The related section provides in part:

    The executive power of the county shall be vested in the Board of Commissioners except those
                                                                                                        9
powers assigned     to other elected   officials and other elected   boards   and commissions   by law. "

Clallam    County   Home Rule Charter § 2. 30. 20. Thus section 4. 25 vests the Department' s


director with power that otherwise would remain vested in the County' s board of commissioners.

Contrary to Lange' s assertion, the plain meaning of section 4.25 does not require the director to

investigate every alleged violation of any law related to the environment, natural resources, and

development.


          b. CCC 20. 08. 060


          Lange additionally claims that CCC 20. 08. 060 imposes a clear duty to enforce code

violations by investigating his complaint. Again we disagree.

9
 The director of the Department of Community Development is an elected official. Clallam
County Home Rule Charter § 4. 10.



                                                      11
No. 44476 -3 - II


        CCC 20. 08. 060 states:


        The Director shall determine, based on information derived from such sources as
        field observations, the statements of witnesses, relevant documents, and available
        data   systems,     following elements have been established. All elements must
                           if the
        be established to determine that a civil code violation has occurred or is occurring.
                    1) The Director shall identify the person responsible for code compliance
        as defined in this title.
                    2)
                     The Director shall identify the specific provision of the relevant
        ordinance, permit condition, notice and order, or stop work order that has been or
        is being violated.
                    3) The Director shall determine whether there are reasonable grounds to
        believe that the acts or omissions that constitute the violation did occur or are
        occurring.       Such grounds may be established either by personal observation or by
        reliable evidence from witnesses.


        Lange asserts that CCC 20. 08. 060 requires the director to investigate each complaint of


code violations     because " the   word ` shall'   is   repeated at    least four times."   Br. of Appellant at 19.


But we look to all that is written in the ordinance and in related ordinances that discloses

legislative intent. Campbell & Gwinn, 146 Wn.2d                  at   11.   Read as a whole, CCC 20. 08. 060


requires the director to make certain determinations ifshe finds a civil code violation, but it does

not require the director to investigate a complaint in the first place.

        Further, Lange ignores two other provisions of chapter 20. 08 CCC that disclose a


legislative intent not to require the director to investigate. First, in establishing guidelines and

enforcement priorities for the Department' s director, CCC 20. 08. 050 explicitly acknowledges the

existence of "times when not all potential code violations can be investigated due to lack of

resources or otherwise."        Thus CCC 20. 08. 050 implies that the director does not have a


mandatory duty to investigate every complaint. Second, CCC 20. 08. 030( 6) states,

        The provisions of this title detailing departmental administration of code
        compliance procedures are intended only for the purpose of providing guidance to
        Clallam County employees and are not to be construed as creating a basis for
        appeal or a defense of any kind to an alleged violation.


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No. 44476 -3 -II




Thus chapter 20. 08 CCC provides guidance to the County without creating a clear duty to

investigate every complaint.

         Moreover, nothing in chapter 20. 08 CCC imposes a clear duty to take both of the two

precise actions specified in Lange' s application for the writ: investigation of Lange' s code

complaint and       issuance   of a " written   final decision      within   40 days."      CP at 7. In light of all the


legislative body has said in chapter 20. 08 CCC., we hold that the County' s ordinances do not

impose on the Department' s director a clear duty to act by investigating or rendering a final

decision on each code complaint received. Therefore the superior court did not err by quashing

its writ of mandamus and dismissing this case.

C.       Attorney Fees

             Lange further assigns error to the superior court' s dismissal of his " claim for attorney' s

fees. " 10    Br. of Appellant at 2. Because the superior court properly dismissed Lange' s

application for the writ of mandamus, the superior court did not err by refusing to award him

reasonable or statutory fees.

             Lange further claims that he is entitled to an attorney fee award under RCW 90. 58. 230.

This claim lacks merit.


             RCW 90. 58. 230 creates a civil cause of action for violations of the Shoreline

Management Act and authorizes a trial court, in its discretion, to award attorney fees and costs to

the prevailing party. But Lange did not bring a cause of action under RCW 90. 58. 230. His


 10 Lange' s application for a writ of mandamus also requested an award of (1) reasonable costs
                                                               law                         in the   alternative, ( 2)
including       reasonable   attorney fees "   pursuant   to         and   equity"   or,

statutory      costs and   attorney fees. CP at 7.




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No. 44476 -3 -II



petition stated allegations supporting only his application for the writ of mandamus, and it did

not allege that the County violated the Shoreline Management Act. The superior court did not

err by refusing to award attorney fees to Lange.

        Affirmed.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




We concur:




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