Marc R. Keith v. Ferry County ( 2021 )

FILED
MARCH 30, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
MARC R. KEITH, )
) No. 37526-9-III
Appellant, )
)
v. )
)
FERRY COUNTY, WASHINGTON and ) UNPUBLISHED OPINION
ALL PERSONS CLAIMING ANY )
RIGHT, TITLE OR INTEREST IN THE )
REAL PRORETY DESCRIBED )
HEREIN, )
)
Respondents. )
SIDDOWAY, A.C.J. — Marc Keith appeals the trial court’s order granting summary
judgment dismissal of his complaint seeking a declaratory judgment, an order quieting
title, and compensation for inverse condemnation from Ferry County. We affirm.
No. 37526-9-III
Keith v. Ferry County
FACTS AND PROCEDURAL BACKGROUND
This case arises from a dispute over whether a strip of land located within a lot
owned by Marc Keith is the terminus of Empire Creek Road—a county road—or is
burdened by only a private road easement held by a few neighboring landowners. Mr.
Keith contends there has never been an effective statutory or common law dedication of
the portion of the road located within property that he and his late wife purchased in
2008.
The County contends that there has been an effective dedication, relying first and
foremost on the Wutzke/Schinnell short plat no. 92-003, filed on June 1, 1992, under
Ferry County auditor’s file number 221125. The short plat divides a portion of the S.W.
1/4, section 5, Township 38N, Range 33E, W.M., into four unevenly-sized lots. Mr.
Keith owns lot 1, the southeasterly lot:
2
No. 37526-9-III
Keith v. Ferry County
Clerk’s Papers (CP) at 192 (partial; enlarged).
Lot 1 is depicted on the plat as including “*Empire Cr. Co. Rd. #552.” Id. The
road is depicted by solid lines, enters lot 1 on its eastern border, travels westerly, and
widens to end in a circle—evidently a cul-de-sac. Id. Next to the cul-de-sac is the
notation, “end county maintained road.”
Id. (partial; enlarged). Three other roads are depicted by dotted lines as connecting to
Empire Creek County Road at the lot 1 cul-de-sac:
Id. (partial; enlarged). The roads depicted by dotted lines lead from the cul-de-sac to
locations within lots 2, 3 and 4.
3
No. 37526-9-III
Keith v. Ferry County
The asterisk preceding the label for “Empire Cr. Co. Rd. #552” is associated with
the following inscription: “*The owners, by their consent to this Short Subdivision, grant
to Ferry County a right-of-way for Empire Creek Road as indicated on this plat.” Id.
Id. (partial; enlarged; highlighted).
The Wutzke/Schinnell short plat was approved on May 28, 1992, with a variance
from the minimum road standards provided by section 29.00 of the County’s short
subdivision ordinance, Ordinance No. 72-1. The variance was based on the following
findings:
4
No. 37526-9-III
Keith v. Ferry County
1. Access road to lot 2 and lot 3 are served by a road that is 16% grade,
over a length of approximately 230 feet. No other properties beyond the
plat appear to be served by this road.
2. Access road to Lot 4 is served by a road that is 13% grade, over a
length of approximately 450 feet. James Rave, et al, owner of 140 acres
adjacent maintains an easement through lot 1, thence through southern
adjacent property thence through SW corner of lot 4. Exhibit A(3) Auditor
File 202220.
3. Access for ingress, egress, etc., exists from northern boundary of
property to west boundary of SE 4 of Sec 5. Access does not exist beyond
that point, through Boise property.
CP at 10. Based on those findings, the platting administrator made the following
recommendation:
Attaining 8% grade from Empire Creek Road may not be possible by any
method; if grade could be attained by a new road(s) with switchbacks,
severe degradation of the slope would occur. Recommend that plat is
approved with existing access, and with disclaimer on face regarding
change of status of road, and county liability.
CP at 10. The planning commission recommended approving the variance “with [a]
disclaimer on [the] face of [the] plat,” which is what the platting administrator did. CP at
10. This is the variance appearing on the face of the plat:
5
No. 37526-9-III
Keith v. Ferry County
CP at 192 (partial; enlarged).
Marc Keith and his late wife purchased lot 1 from Harry and Ruth Simenson by a
statutory warranty deed filed March 27, 2008. The deed described the property they were
acquiring as lot 1 of the Wutzke/Schinnell short plat no. 92-003, identified by the county
auditor’s file number.
Beginning no later than June 11, 2013, Mr. Keith began taking actions that
interfered with others’ use of the portion of Empire Creek Road that is located within lot
1. In June 2013, he relocated several neighbors’ mailboxes. He later erected fences and
gates that interfered with the public right-of-way. He continued to make it known to
County employees that he did not believe a public right-of-way existed on his property.
On July 25, 2016, acting on complaints from other property owners, the Ferry
County Commissioners passed Resolution No. 2016-21, which states:
WHEREAS, In 1992 the Wutzke/Schinnell Short Plat #92-003 was created
and approved by the Ferry County Planning Department; and
WHEREAS, The Short Plat recognizes a long standing practice of the Ferry
County Road Department in maintaining Empire Creek Road #5520 up to
and including the cul-de-sac.
NOW THEREFORE BE IT RESOLVED the Ferry County Board of
Commissioners formally recognize that Ferry County had accepted the
6
No. 37526-9-III
Keith v. Ferry County
Empire Creek Road as County Road # 5520 as it is recorded in the
Wutzke/Schinnell Short Plat #92-003 in 1992.
CP at 26 (boldface omitted). Upon adopting the resolution, the commissioners sent Mr.
Keith a letter notifying him of the resolution. The letter asserted that a right-of-way had
been granted for the portion of Empire Creek Road depicted on the short plat and had
been continuously maintained by the County road department. The letter demanded that
he cease and desist obstructing the road and interfering with mail delivery.
In April 2017, Mr. Keith filed a complaint for declaratory judgment, to quiet title,
and for inverse condemnation, which he amended a month later. He contended that the
County never accepted the dedication of the extension of Empire Creek Road into lot 1 in
light of the variance language conditioning acceptance on “bring[ing] these roads up to
county road standards.” CP at 5.
In August 2019, Mr. Keith moved for summary judgment. The County opposed
his motion and cross moved for dismissal of his claims. The trial court considered the
cross motions on the basis of the written submissions and granted the County’s motion to
dismiss. Mr. Keith appeals.
ANALYSIS
“Dedications are classified as either statutory or common law.” Sweeten v.
Kauzlarich, 38 Wn. App. 163, 165, 684 P.2d 789 (1984). “To find a dedication, two
7
No. 37526-9-III
Keith v. Ferry County
elements must be present: ‘(1) An intention on the part of the owner to devote his land, or
an easement in it, to a public use, followed by some act or acts clearly and unmistakably
evidencing such intention; and (2) an acceptance of the offer by the public.’” Id.(quoting City of Seattle v. Hill, 23 Wash. 92, 97, 62 P. 446 (1900)). The party claiming a
public right to use property as a public street bears the burden of establishing these
elements. Id. at 166. “Generally, certain formalities of execution and recording are
required to find an express dedication, and when an express or statutory dedication fails
to meet these formalities, it is treated as a common-law dedication.” Id. at 167.
Washington statutorily defines dedication as “the deliberate appropriation of land
by an owner for any general and public uses, reserving to himself or herself no other
rights than such as are compatible with the full exercise and enjoyment of the public uses
to which the property has been devoted.” RCW 58.17.020(3). Under the statute,
The intention to dedicate shall be evidenced by the owner by the
presentment for filing of a final plat or short plat showing the dedication
thereon; and, the acceptance by the public shall be evidenced by the
approval of such plat for filing by the appropriate governmental unit.
RCW 58.17.020(3). Ferry County Ordinance 72-1, § 03.07, likewise provides that the
intention to dedicate is evidenced by presenting for filing a short plat that includes the
8
No. 37526-9-III
Keith v. Ferry County
dedication; acceptance is evidenced by approval of the plat in the manner provided by the
ordinance.
Mr. Keith contends that the offer and acceptance required for a statutory
dedication did not occur. He argues that the variance on the face of the plat reveals that
the County made a conditional counteroffer rather than accept the dedication, and that the
conditions of its counteroffer have never been satisfied.
Standard of Review
Summary judgment orders are reviewed de novo, with this court engaged 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 appropriate only if the pleadings, affidavits,
depositions, and admissions on file demonstrate the absence of any genuine issues of
material fact and that the moving party is entitled to judgment as a matter of law.
CR 56(c).
When construing a plat, the intent of the dedicator controls. Roeder Co. v.
Burlington N., Inc., 105 Wn.2d 269, 273, 714 P.2d 1170 (1986). That intention is to be
determined from all the marks and lines appearing on the plat. Id. Plats, like other
writings, are interpreted as a whole and no part of the plat should be rendered
meaningless if it can be avoided. Cummins v. King County, 72 Wn.2d 624, 627, 434 P.2d
588 (1967).
9
No. 37526-9-III
Keith v. Ferry County
If a plat is unambiguous, the intent, as expressed in the plat, cannot be
contradicted by parol evidence. Selby v. Knudson, 77 Wn. App. 189, 194, 890 P.2d 514(1995) (citing Olson Land Co. v. City of Seattle, 76 Wash. 142, 145, 136 P. 118 (1913)).
An instrument is ambiguous when its terms are uncertain or it is capable of being
understood as having more than one meaning. M.K.K.I., Inc. v. Krueger, 135 Wn. App.
647, 654, 145 P.3d 411 (2006). In that event, we may look beyond the plat and consider
surrounding circumstances in order to determine the applicant’s intention. Id. An
instrument is not ambiguous simply because the parties suggest opposing meanings,
however. Shafer v. Bd. of Trs. of Sandy Hook Yacht Club Ests., Inc., 76 Wn. App. 267,
275, 883 P.2d 1387 (1994); Mayer v. Pierce County Med. Bureau, Inc., 80 Wn. App. 416,
421, 909 P.2d 1323 (1995).
I. THERE IS NO GENUINE ISSUE OF DISPUTED FACT THAT THE EMPIRE CREEK ROAD
RIGHT-OF-WAY LOCATED IN LOT 1 WAS STATUTORILY DEDICATED IN 1992
A. The intent to dedicate the right-of-way is clear from the plat
The County contends, and we agree, that the plat’s depiction of “Empire Cr. Co.
Road” within lot 1, and the associated language, “The owners, by their consent to this
Short Subdivision, grant to Ferry County a right-of-way for Empire Creek Road as
indicated on this plat,” is effective as an offer. CP at 192.
10
No. 37526-9-III
Keith v. Ferry County
Mr. Keith argues that the variance on the face of the plat gives rise to ambiguity,
however, because it indicates the County conditioned acceptance of the right-of-way for
Empire Creek Road on it being brought up to county road standards.
The variance on the face of the plat makes clear that it applies to the access roads
to lots 2, 3 and 4:
VARIANCE from Minimum Road Standards
The access roads to Lots 2 and 3 (16% grade) and Lot 4 (13%
grade) do not meet the minimum road standards in Section 29:00 of the
Ferry County Short Subdivision Ordinance No. 72-1. The Ferry County
Planning Commission has granted a variance to such road standards,
finding that the public use and interests will be served.
The developers, lot purchasers, or any other parties with an interest
in the lots, shall at their sole expense bring these roads up to county road
standards prior to acceptance of such roads as county roads. The question
of whether the roads meet county road standards shall be within the sole
discretion of the Ferry County Engineer.
Id. (emphasis added). Mr. Keith argues that the variance is capable of being understood
as having the meaning he suggests, but we disagree. Mr. Keith suggests an opposing
meaning, but that is not the same as identifying a reasonable alternative meaning.
Other markings on the plat make even clearer the different intent for the right-of-
way for Empire Creek Road, which is dedicated, and the access roads, which are not.
The asterisked language granting the right-of-way (“The owners, by their consent to this
Short Subdivision, grant to Ferry County a right-of-way for Empire Creek Road”) makes
the intended dedication clear. Id. In addition, lot 1 is marked on the plat as consisting of
11
No. 37526-9-III
Keith v. Ferry County
3.30 acres “(less Co. R/W),” which is reasonably construed as “less County right-of-
way.”
Id. (partial; enlarged). Lines as well as words may be considered. Kiely v. Graves, 173
Wn.2d 926, 934, 271 P.3d 226 (2012). The right-of-way is demarked by solid lines and
labeled “Empire Cr. Co. Rd.,” whereas the access roads are demarked by dotted lines and
labeled as easements.
Mr. Keith advances a final argument based on RCW 58.17.165 and this court’s
decision in Bunnell v. Blair, 132 Wn. App. 149, 152, 130 P.3d 423 (2006), but the statute
and the case do not help him. In Bunnell v. Blair, the Blairs defended against a lawsuit
seeking to enjoin them from using an allegedly private road. They pointed to RCW
58.17.165, which provides that “[r]oads not dedicated to the public must be clearly
marked on the face of the plat,” and argued that the road their neighbors contended was
private was not clearly marked as private on the relevant plats. They also pointed to the
Benton County Code, which required that private easements on a plat be labeled as
“Private Road Easement,” and the fact that the allegedly private road was not labeled as a
12
No. 37526-9-III
Keith v. Ferry County
private road easement. Bunnell, 132 Wn.2d at 152. Nevertheless, this court, relying on
testimony of the original owners, the surveyor, and language on the face of the plats that
“‘Benton County will not construct nor maintain access easement[s],’” concluded that
“reasonable minds could reach but one conclusion: that a private road was intended from
the outset.” Id. at 153 (alteration in original).
Mr. Keith likens the plats’ disclaimer of the county’s interest in the roads in
Bunnell to the variance on the face of the Wutzke/Schinnell short plat. But as we have
already concluded, the variance applies only to the access roads to lots 2, 3, and 4.
Bunnell actually supports the County’s position, not Mr. Keith’s, in recognizing that a
lack of clarity on a plat suggests that a road is public, not private.
B. Undisputed evidence establishes acceptance by the County
By statute and by ordinance, acceptance of the dedication by the public is
evidenced by the approval of the plat for filing by the appropriate governmental unit.
RCW 58.17.020(3); Ferry County Ordinance 72-1, § 03.07. Undisputed documents in
the record demonstrate that the Wutzke/Schinnell short plat was approved for filing.
Mr. Keith baldly asserts that to prove acceptance of the dedication, the County
was also required to prove, and failed to prove, that the short subdivision was approved in
compliance with other Ferry County ordinances. He provides no persuasive authority or
argument. RCW 58.17.030 provides that “[e]very short subdivision as defined in this
chapter shall comply with the provisions of any local regulation adopted pursuant to
13
No. 37526-9-III
Keith v. Ferry County
RCW 58.17.060.” But it does not say that a short subdivision applicant’s failure to
comply with any local regulation renders an otherwise-effective dedication ineffective.
Case law recognizes that only “certain formalities of execution and recording are
required to find an express dedication.” Sweeten, 38 Wn. App. at 167.
Further, as the County points out, RCW 58.17.180 provides that decisions
approving or disapproving plats are reviewable under chapter 36.70C RCW, and under
RCW 36.70C.040 review is barred unless a petition is filed and served on the necessary
parties within 21 days of a challenged land use decision. Mr. Keith responds that the
County did not plead the affirmative defense that his action was time-barred,1 but his
claim is not time-barred. He is entitled to pursue his claim that a right-of-way in his
property was never effectively dedicated. His complaint does not seek a declaratory
judgment that the plat was not validly approved—if it did, that claim would be time-
barred. The almost 30-year-old plat is final and unreviewable. See Yorkston v. Whatcom
County, 11 Wn. App. 2d 815, 826, 461 P.3d 392, review denied, 195 Wn.2d 1020, 464
P.3d 202 (2020) (because there was no timely objection, “the validity of the 1884
commission decision is beyond challenge. Yorkston is free to seek a declaration as to the
effect of that valid decision.”).
1
The County would likely have been allowed to amend its answer and assert a
limitations defense had this been perceived as an obstacle to summary judgment. See,
e.g., Greenhalgh v. Dep’t of Corr., 170 Wn. App. 137, 282 P.3d 1175 (2012).
14
No. 37526-9-III
Keith v. Ferry County
There is no genuine issue of material fact, and the County was entitled to summary
judgment dismissal of Mr. Keith’s request for a declaration that the road claimed by the
County to be public is in fact private. Having found that the road was created by a
statutory dedication, we need not address the County’s alternative argument that the
evidence also establishes a common law dedication.
III. MR. KEITH’S COMPLAINT WAS PROPERLY DISMISSED IN ITS ENTIRETY
At oral argument, Mr. Keith’s counsel initially acknowledged that if we were to
hold that the county road right-of-way was statutorily dedicated in 1992, as we do, then
all three of his claims for relief were properly dismissed. Wash. Court of Appeals oral
argument, Keith v. Ferry County, No. 37526-9-III (Mar. 9, 2021), at 1 min., 59 sec. to 2
min., 16 sec. (on file with court). He later argued that Mr. Keith’s inverse condemnation
claim remains viable, however, at least in part, based on his alleged payment of property
taxes on the portion of his property burdened by the Empire Creek Road right-of-way.
Id. at 26 min., 41 sec. to 28 min., 19 sec.
We have carefully reviewed Mr. Keith’s amended complaint and find no claim
that remains viable. His alleged payment of taxes is raised only as evidence of the
allegedly private character of the road and the County’s alleged nonacceptance of the
right-of-way. The only claim for “compensation” made in connection with the inverse
condemnation claim is for interference, taking, or injury to his “ownership interest” in
15
No. 37526-9-III
Keith v. Ferry County
real property. Use of the road, since it is a public road, is not a basis for inverse
condemnation.
If Mr. Keith has a claim for overpayment of taxes, it was not asserted in this
action. Subject to any defenses, it will survive dismissal of his complaint.
Affirmed.
A majority of the panel has determined 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.
_____________________________
Siddoway, A.C.J.
WE CONCUR:
_____________________________
Staab, J.
_____________________________
Fearing, J.
16