                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                      November 17, 2015


       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    STUART F. McCOLL, a married man dealing                         No. 46728-3-II
    with his separate property,

                               Appellant,

          v.

    GEOFFREY ANDERSON, a married man                         UNPUBLISHED OPINION
    dealing   with  his   separate   property;
    ADMINISTRATOR OF THE CLALLAM
    COUNTY DEPARTMENT OF COMMUNITY
    DEVELOPMENT, currently Sheila Miller;1
    and     PROSECUTOR      OF     CLALLAM
    COUNTY, currently Mark Nichols,

                               Respondents.

         MELNICK, J. — Stuart McColl appeals Clallam County Superior Court’s orders granting

summary judgment in Clallam County’s and Geoffrey Anderson’s favor. McColl argues that the

court erred by dismissing his writ of mandamus claim because the prosecutor had a duty to act and

the court certified that McColl had no other administrative or legal remedy. He further argues that




1
 The administrator of the Clallam County Department of Community Development is currently
Mary Ellen Winborn.
46728-3-II


the court erred by dismissing his lawsuit for damages because he has a property right to a view. 2

Any additional issues were not sufficiently briefed, thus we do not consider them. Anderson seeks

attorney fees on appeal.3 Because no genuine issue of material fact existed and Clallam County

and Anderson were entitled to judgment as a matter of law, and to the extent arguments were made

under the Shoreline Management Act of 1971 (SMA) we award attorney fees and affirm the trial

court.

                                              FACTS

         McColl and Anderson are neighbors who live on Lake Sutherland in Clallam County.

Anderson purchased his property in 1978 and it became his full-time residence in the 1990s.

McColl took ownership of his property in 2012.

         When Anderson acquired his property, it included a dock and an old boathouse. In 1983,

he applied for and obtained a permit from Clallam County to rebuild the dock and boathouse. In

2008, Anderson drove pilings that extended the boathouse and adjacent dock six feet towards the

water. Anderson took this action to accommodate a drop in water level following a severe storm


2
  Based on our reading of the brief, McColl raises the above-stated issues. We find support for
this interpretation based on McColl’s arguments when the trial court heard the summary judgment
motions. In McColl’s summary judgment motion, he listed eight issues for the trial court to
consider. But at the motion hearing, McColl stated,

         There are three things that matter to me. It is unacceptable to block my view. It’s
         not acceptable. There’s a bunch of junk in the water right next to my house. It is
         not acceptable. And having a deck where it completely compromises my house, its
         privacy I don’t want a deck sitting in front of me. That annoys me and bothers me.
         Those are the three things that matter to me.

Report of Proceedings (RP) at 18-19.
3
  In addition to attorney fees, Anderson requests in his brief that we dismiss the appeal. He
previously filed a formal motion to dismiss for the same reasons that a commissioner of this court
denied. We also deny his motion to dismiss.



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46728-3-II


in 2007. Anderson also installed a beam inside the boathouse that raised its height seven inches.

Anderson stated that “the word among property owners around the lake was that the County

considered this to be an emergency situation and [property owners] could go ahead and take care

of any necessary repairs.” Clerk’s Papers (CP) at 203. Anderson did not acquire a permit for the

2008 additions.

          By 2012, Anderson had installed stairs that connected the adjacent dock to the top of the

boathouse. He installed railings on top of the boathouse and used it as a deck. Per Anderson, of

the approximately 20 boathouses on the lake, almost all of them used the roof for sunbathing and

jumping into the lake. In 2012, Anderson and his family began to occasionally use a portable

bamboo privacy screen on top of the boathouse. From McColl’s second story deck, this screen,

when used, partially obscured McColl’s view of the lake. Anderson also stored two “floats”4

beside the boathouse, on the side closest to McColl’s house: one for dock repairs and one for

swimming in deeper water and storing water toys. Per McColl, the floats were not there when he

purchased his property.

          In June 2013, McColl filed a complaint against Anderson seeking declaratory and

injunctive relief for violations of the SMA, the Clallam County Shoreline Management Program,

and additional code violations related to Anderson’s boathouse, as well as a writ of mandamus for

the Clallam County prosecutor’s office. In late 2013, McColl sent a letter to Clallam County

Department of Community Development (the Department) regarding the dock. Then, in January

2014, McColl amended his complaint to add the Department and the Clallam County Prosecutor

(Clallam County) as defendants. McColl sought a writ of mandamus for the Department and the




4
    The “floats” described by the parties are small, floating docks or platforms.


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46728-3-II


prosecutor, as well as damages for “degradation of view, property value, continued nuisance, and

unfettered safe access to the lake.” CP at 98.

In March 2014, McColl again amended the complaint and added a request for injunctive relief

based on public nuisance.

       McColl moved for summary judgment and both Clallam County and Anderson cross-

moved for summary judgment. On September 5, the trial court heard argument on McColl’s and

Clallam County’s motions. It granted Clallam County’s motion. Shortly thereafter, McColl filed

a motion for reconsideration that the trial court denied.

       On September 26, the trial court heard Anderson’s and McColl’s summary judgment

motions. It orally granted Anderson’s motion and denied McColl’s. On October 2, McColl filed

a notice of appeal, which we determined was premature. At McColl’s request, it was held for 60

days. Then, on October 30, the trial court signed the judgment and order granting summary

judgment to Anderson and awarding Anderson partial attorney’s fees and costs on the Shoreline

Management Act claim. The trial court denied McColl’s motion. McColl filed a motion to

reconsider and on November 17, the trial court entered its final order denying the motion for

reconsideration. McColl appeals from both orders granting summary judgment.

                                            ANALYSIS

I.     STANDARD OF REVIEW

       We review an order for summary judgment de novo, engaging in the same inquiry as the

trial court. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002). Summary

judgment is proper if “the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of law.” CR 56(c). We construe



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46728-3-II


all facts and their reasonable inferences in the light most favorable to the nonmoving party. Jones,

146 Wn.2d at 300.

       A party moving for summary judgment bears the burden of demonstrating that there is no

genuine issue of material fact. Atherton Condo. Apartment-Owners Ass'n Bd. of Dirs. v. Blume

Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990). “A material fact is one upon which the

outcome of the litigation depends in whole or in part.” Atherton, 115 Wn.2d at 516. If the moving

party satisfies its burden, the nonmoving party must present evidence demonstrating that a material

fact remains in dispute. Atherton, 115 Wn.2d at 516. If the nonmoving party fails to demonstrate

that a material fact remains in dispute, and reasonable persons could reach but one conclusion from

all the evidence, then summary judgment is proper. Vallandigham v. Clover Park Sch. Dist. No.

400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005).

II.    WRIT OF MANDAMUS

       McColl contends that the trial court erred by denying him a writ of mandamus. We

disagree.

       A writ of mandamus is an extraordinary remedy. Walker v. Munro, 124 Wn.2d 402, 407,

879 P.2d 920 (1994). Mandamus requires the satisfaction of three elements: (1) the party subject

to the writ is under a clear duty to act; (2) the applicant has no plain, speedy and adequate remedy

in the ordinary course of law; and (3) the applicant is beneficially interested. RCW 7.16.170; RCW

7.16.160; Eugster v. City of Spokane, 118 Wn. App. 383, 402, 76 P.3d 741 (2003). At the hearing

for cross-motions on summary judgment between McColl and Clallam County, the trial court




                                                 5
46728-3-II


found that McColl failed to establish the County was under a clear duty to act. We agree with the

trial court.5

        The statutes under which McColl seeks relief are in the Shoreline Management Act. Ch.

90.58 RCW.6 The language over which McColl and Clallam County disagree is as follows:

        Except as provided in RCW 43.05.060 through 43.05.080 and 43.05.150, the attorney
        general or the attorney for the local government shall bring such injunctive, declaratory, or
        other actions as are necessary to ensure that no uses are made of the shorelines of the state
        in conflict with the provisions and programs of this chapter, and to otherwise enforce the
        provisions of this chapter.

RCW 90.58.210(1). Furthermore, McColl quotes a section from the relevant chapter of the

Clallam County Code that addresses Clallam County’s Shoreline Management Program.

Regarding enforcement, the code states:

        The Clallam County Prosecuting Attorney shall bring such injunctive, declaratory, or other
        actions as are necessary to ensure that no uses are made of the shorelines of the County in
        conflict with the provisions and programs of this chapter or the Shoreline Management Act
        of 1971, and to otherwise enforce the provisions of this chapter and the Shoreline
        Management Act of 1971.

Clallam County Code (CCC) 35.01.130(2).

        McColl argues that the word “shall” in the above statute and ordinance requires the Clallam

County Prosecutor to prosecute. We review questions of statutory construction de novo, looking




5
  Although McColl argued to the trial court that the Shoreline Management Act creates a clear
duty to act for both the county prosecutor and the Department, on appeal, McColl only addresses
the prosecutor’s duty to act. Therefore, we only address the prosecutor’s duty to act. RAP 10.3(a);
State v. Olson, 126 Wn.2d 315, 320-21, 893 P.2d 629 (1995).

6
  The Shoreline Management Act applies to all the counties of Washington State. RCW 90.58.030.
Under the Act, each city and county must prepare and adopt a shoreline master program tailored
to the specific geographic, economic, and environmental needs of the community. RCW
90.58.080.



                                                 6
46728-3-II


to the statute’s plain language in order to give effect to legislative intent. Asche v. Bloomquist,

132 Wn. App. 784, 790, 133 P.3d 475 (2006). “When faced with an unambiguous statute, we

derive the legislature's intent from the plain language alone.” Asche, 132 Wn. App. at 790. Courts

must generally give words in a statute their plain and ordinary meaning. Erection Co. v. Dep't of

Labor & Indus., 121 Wn.2d 513, 518, 852 P.2d 288 (1993). The word “shall” in a statute is

presumptively imperative and operates to create a duty. Crown Cascade, Inc. v. O'Neal, 100

Wn.2d 256, 261, 668 P.2d 585 (1983). Whether an ordinance creates a clear duty to act is a

question of law we review de novo. River Park Square, LLC v. Miggins, 143 Wn.2d 68, 76, 17

P.3d 1178 (2001).

       The language in RCW 90.58.210(1) and CCC 35.01.130(2) is not ambiguous. McColl

correctly states that the Shoreline Management Act is to be interpreted broadly to give full effect

to its objective and purpose, to protect the shorelines. RCW 90.58.020, .900.

However, McColl’s legal interpretation of the statute and ordinance is incorrect. The “shall”

language he references relates to the prosecutor’s office’s duty to bring actions it deems necessary.

It does not mandate the prosecuting attorney’s office to take action regardless of its prosecutorial

discretion.

       A writ of mandamus is appropriate where the plaintiff shows there is a clear duty to act and

the duty is ministerial, not discretionary. Seattle Times Co. v. Serko, 170 Wn.2d 581, 588-89, 243

P.3d 919 (2010).     Prosecuting violations of the law is generally recognized as a “highly

discretionary” act. Walker, 124 Wn.2d at 411. Interpreting the statute and ordinance in the manner

McColl suggests would remove a prosecutor’s discretion to act. Based on a plain reading of the

statute and ordinance, the prosecutor’s office has discretion to take action against a violation of

the Shoreline Management Act when it determines it is necessary to ensure the shoreline’s



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46728-3-II


protection. McColl did not establish that the prosecutor had a clear duty to act; therefore, he cannot

satisfy the first element for obtaining a writ of mandamus. Because Clallam County had no duty

to act, we do not reach the issue of whether McColl had another adequate legal remedy. McColl

is not entitled to a writ. The trial court properly granted summary judgment for Clallam County.

III.   PROPERTY RIGHT TO A VIEW

       McColl argues that he was denied access to damages because he has a property right to a

particular view. He claims this right exists by way of case law, statute, and the U.S. Constitution.

We disagree.

       A.      PROPERTY RIGHT THROUGH CASE LAW

       McColl first argues that the trial court’s grant of summary judgment in favor of Anderson

unjustly denied him his right to sue for damages. His argument focuses on the loss of damages;

however, he seems to also contend that a conclusion of law in Dep't of Ecology v. Pacesetter

Constr. Co., 89 Wn.2d 203, 571 P.2d 196 (1977), creates a cause of action. He states, “An illegal

and un-permitted shoreline structure, as is the case here, Ecology v. Pacesetter, and Hunt v.

Anderson[, 30 Wn. App. 437, 635 P.2d 156 (1981)], that blocks a valuable view, allows a Plaintiff

to pursue the violator for damages.” Br. of Appellant at 11-12. McColl seems to argue that he has

a property right to a particular view of the lake and that the trial court prohibited him from

enforcing this right.

       In Pacesetter, our Supreme Court considered whether a section of the Shoreline

Management Act violated the takings clause of the state constitution. 89 Wn.2d at 205. The court

quoted one of the trial court’s conclusions of law in the case stating, “If one house sits far ahead

of the others, then for that one person’s financial benefit, he would be allowed to cause a drastic

invasion into the aesthetics of the neighborhood and a tremendous financial loss to all of his



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46728-3-II


neighbors.” Pacesetter, 89 Wn.2d at 208. McColl argues that this conclusion of law entitles him

to damages. McColl takes the quote out of context; the conclusion of law articulated in Pacesetter

does not establish a separate cause of action that would entitle McColl to damages in this case.7

McColl cites no other authority to support his claim.

       McColl alleges that the “judge in this case here refused to read or acknowledge the

Plaintiff’s citation to this conclusion of law in open court or to address the conclusion of law in

his written opinions and memorandum although the Plaintiff repeated[ly] demanded he do so.”

Br. of Appellant at 11. The trial court judge did not disregard Pacesetter, but instead disagreed

with McColl’s interpretation. The conclusion of law in Pacesetter did not create a cause of action

for McColl and his claim is not otherwise supported by citation to case law; therefore, his argument

is without merit. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549

(1992) (we do not consider arguments that are unsupported by citation to the record or authority).

       B.      STATUTORY AND CONSTITUTIONAL RIGHT TO A VIEW

       McColl also argues that the Clallam County Code and the Shoreline Management Act grant

him a property right to pursue damages. He contends that because he relied on zoning ordinances

when he purchased his property, he has a right to the view that he expected on purchase.

       Generally, there is no property right to a view across a neighbor’s property. Collinson v.

John L. Scott, Inc., 55 Wn. App. 481, 485, 778 P.2d 534 (1989). However, a zoning ordinance

can create a property right. Asche, 132 Wn. App. at 797-98; see also Veradale Valley Citizens'

Planning Comm. v. Bd. of County Comm'rs of Spokane County, 22 Wn. App. 229, 232, 588 P.2d


7
 McColl also cites Hunt v. Anderson in which the court analogizes to Pacesetter. Hunt, 30 Wn.
App. at 440-41. McColl states that Hunt “restates” the conclusion of law in Pacesetter. Br. of
Appellant at 11. This assertion is incorrect. The court in Hunt affirmed the trial court’s order to
move a mobile home where the trial court had found a specific violation of the Shoreline
Management Act. Hunt, 30 Wn. App. at 442. There has been no such finding in this case.


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46728-3-II


750 (1978). “A property right is protected by the United States Constitution when an individual

has a reasonable expectation of entitlement deriving from existing rules that stem from an

independent source such as state law.” Asche, 132 Wn. App. at 797. In Asche, a specific zoning

ordinance existed to regulate building height and building over the specific height would be

approved only if it did not impact neighboring views. Asche, 132 Wn. App. at 798. This zoning

ordinance created a property right. Asche, 132 Wn. App. at 798. No such view easement exists

here.

        McColl argues that a level boathouse deck and a screen atop said boathouse deck violate

the Clallam County Code Shoreline Management Program because it requires a sloped roof on

boathouses. He cites CLALLAM COUNTY SHORELINE MASTER PROGRAM § 5.18(C)(1)(d) at 64 (rev.

June 16, 1992), which states, “Where permitted, boathouses shall have sloped roofs with a

minimum pitch of 3:1 (horizontal to vertical).”

        First, during the motions hearing, McColl informed the trial court that the privacy screen

and the floats are “the only two things we’re looking for for damages and everything else is outside

the Statute of Limitations. I have conceded that and put that into my reply.” RP at 17. Thus,

McColl waived his argument relative to the boathouse. Second, the section McColl cites relates

to boathouses and not the regulation of removable bamboo screens; therefore, it is not applicable

to McColl’s appellate claim.8 The two parties do not disagree on the material facts. The trial court

properly applied the law to the facts of this case and Anderson was entitled to a judgment as a

matter of law. Summary judgment was proper.




8
  The parties seem to disagree as to whether the Shoreline Management Program is an ordinance.
Based on our resolution, that the provision cited by McColl is inapplicable, we need not decide the
issue.


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46728-3-II


IV.       ISSUE WAIVED –WARRANT OF ABATEMENT FOR NUISANCE

          McColl states that the court erroneously dismissed his nuisance claim and request for a

warrant of abatement under RCW 7.48.020. A warrant of abatement may be issued by the superior

court if after complaint or action, a person is adjudged guilty of a nuisance. RCW 7.48.260.

          For an issue to be considered on appeal, an appellant must raise the issue in the assignments

of error, present an argument on the issue, and provide some legal citation. RAP 10.3(a)(3); Olson,

126 Wn.2d at 320-21. An appellant waives an issue when he fails to argue it in his appellate brief.

Cowiche Canyon Conservancy, 118 Wn.2d at 809. If the argument is laid out for the first time in

the reply brief, it is too late to warrant consideration. Cowiche Canyon Conservancy, 118 Wn.2d

at 809.

          Apart from a general assignment of error and issue statement, McColl fails entirely to lay

out an argument for warrant of abatement for nuisance. McColl generally assigns error by stating

that the trial court erred “in dismissing the Plaintiff’s entire case without applying the applicable

statutes, codes, and case law that grant the Plaintiff access to . . . warrant of abatement.” Br. of

Appellant at 4. However, McColl mentions warrant of abatement in only one place in the argument

section of his brief. It is in a footnote and only by reference to the section of the RCW. He also

does not argue nuisance law in his brief. Because he does not argue this issue and does not provide

legal citation to support his claim, we do not consider it.

V.        ATTORNEY FEES

          RAP 18.1 provides for attorney fees and costs on appeal if “applicable law grants to a party

the right to recover” and the fees and costs are properly requested in the parties’ opening briefs.

RAP 18.1(a)-(b). A party requesting attorney fees must “devote a section of its opening brief to

the request for the fees or expenses.” RAP 18.1(b). Under the Shoreline Management Act, RCW



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46728-3-II


90.58.230 provides for reasonable attorney fees to the prevailing party. The prevailing party is

only entitled to fees directly associated with the Shoreline Management Act claims. Cowiche

Canyon Conservancy, 118 Wn.2d at 823.

       Anderson was granted attorney fees at the trial court level and in his response brief on

appeal, again requests the same. Anderson identified attorney fees as an issue in his brief and

devoted a section to his request; thus, as the prevailing party, Anderson is entitled to attorney fees

incurred from defending the Shoreline Management Claim only.

       We affirm both orders granting summary judgment.

       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.




                                                              Melnick, J.

We concur:




       Worswick, J.




       Johanson C.J.




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