### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II
TAZMINA VERJEE

- VAN, No. 48947

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- II) Appellant, UNPUBLISHED OPINION v. PIERCE COUNTY, a subdivision of the State of Washington; and PLANNING AND LAND SERVICES DEPARTMENT (PALS), a department of Pierce County, Respondents.

B JORGEN , C.J.

— Tazmina Verjee

- Van 1 appeals from a bench trial dismissal of her petition for a writ of mandamus requesting the removal of a pier from adjacent property on one side of her lot and a fence from adjacent property on the other. She argues that the superior court improperly dismissed her mandamus action because (1) Pierce County (County) had a clear duty to act under the circumstances of this case , (2) Verjee

- Van had no plain, speedy , and adequate remedy in the ordinary course of law , and (3) re view of the structures that she claims are in violation of the Pierce County C ode are not precluded under the doctrine of finality. The County also (4) requests costs on appeal in the event it is the substantially prevailing party. We hold that the superior court properly dismissed Verjee

- Van’s petition for a writ of mandamus and that the County is entitled to appellate costs as the substantially prevailing party on review. Consequently, we affirm the superior court.

1 Tazmina Verjee

- Van is also referred to in the record as Tazmina Esmail. Filed Washington State Court of Appeals Division Two December 27, 2017No. 48947

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2 FACTS A. Borgert Pi er 2 At some point before or during April 1998, Kelly Winne and Julie Helmka

- Winne 3 constructed a pier on their Lake Tapps property without acquiring a shoreline exemption or submitting an application for permit. Soon after, the property owners submitted a request for a shoreline exemption and an application for a building permit for the pier as constructed. On Ju ne 22 , the County issued a building permit for the pier , with the permit becoming final on July 9

. On June 13, 2001, the County approved the re quested shoreline exemption for the pier. The building permit and shoreline exemption were never appealed. On December 29, 2003, Neil Borgert purchased the property from Winne and Helmka

- Winne

. B. Verjee

- Van Activity On May 1, 1999, Verjee

- Van purchased a lot bordered on one side by what would eventually be the Borgert lot and on the other side by a lot that would eventually be owned by Dan and Phyllis Abercrombie . All three lots are on the shoreline of Lake Tapps. Prior to purchasing the property, Ver jee

- Van inspected the location, observed the Borgert pier constructed on the Winne/ Helmka

- Winne property, and filed a complaint with the County regarding the alleged improper installation of the pier. Although no action was apparently taken on her complaint regarding the pier, Verjee

- Van purchased the property. On November 8, 2006, Verjee

- V an sought a shoreline exemption in order to construct an 8

- foot by 30

- foot pier on her property. On February 20, 2007, the County denied the requested

2 In the record, the words “dock” and “pier” are used interchangeably.

3 Julie Helmka

- Winne is also referred to in the record as “Julie Winne.” Additionally, in some records “Helmka” is spelled as “Helmke.”No. 48947

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3 exemption because the proposed construction was not in compliance with the Pierce County C ode (PCC) . De spite the lack of a permit or exemption, Verjee

- Van constructed a pier on her property on or about May 12, 2007. The Verjee

- Van pier was constructed within 10 feet of the side boundary of her lot and “actually crossed over on top of Mr. Borgert’s [pier].” C lerk’s
P apers (CP) at 33. On July 3, 2007 the County sent a n otice and o rder to c orrect to Verjee

- Van, explaining that the pier violat ed PCC 20.56.030.A.1.C. ( 4 ) 4 because it had been built within 10 feet of a side property line. On July 17, Verjee

- Va n appealed the notice and order to the Pierce County hearing examiner

. On November 5 , the examiner determined that Verjee

- Van had failed to demonstrate that the July 3 notice and order was clearly erroneous and ordered Verjee

- Van to remove her pier

. Verj ee - Van did not appeal t he examiner’s ruling.
C. Abercrombie Fence On April 2, 2012, Verjee

- Van filed a complaint regarding a fence constructed by her other next

- door neighbors, the Abercrombie s . She claimed that the Abercrombie fence was constructed within the 15

- foot shoreline setback area. On June 4 , Yvonne Reed, a c ounty code enforcement supervisor, e

- mailed Verjee

- Van in response to the complaint , stating that the Abercrombie fence did not viola te the PC C

. No party appealed the County’s determination that the Abercrombie fence did not violate PC C requirements.
D. Verjee

- Van’s Petition for Writ of Mandamus On June 23, 2014, Verjee

- Van filed a petition for a writ of ma n damus in superior court , maintaining that the Borgert pier and the Abercrombie fence violat ed the PC C

. She further

4 “(4) Floats, piers, and docks shall be loc ated not closer than ten feet to a side property line except for docks intended for joint use.”No. 48947

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4 alleged that the County had “a clear duty to follow the law,” and sought a writ of mandamus to compel the County to “direct the immediate removal of such structures. ” CP at 8

- 9. On March 25, 2015, th e mandamus case was stayed pending a decision on Verjee

- Van’s application for a permit to construct a pier on her property. On March 30, 2016, the superior court filed its decision lifting the stay on these proceeding s and dismissing the petition for a writ of mandamus. The court ruled that even if the Borgert pier and Ambercrombie fence violat ed the PC C, the code did not require the County to seek removal of those improvements. The court further determined that Verj ee - Van would have had a plain, speedy , and adequate remedy in the ordinary course of law if she had appealed the County’s determinations regarding the Borgert pier and Abercrombie fence. On April 13, Verjee

- Van filed a notice of appeal with our court , appealing the March 30, 2016 superior court decision dismissing her petition for a writ of mandamus. ANALYSIS I. S TANDARD OF R EVIEW O ur review of a decision regarding a writ of mandamus is subject to two standards of review , depending on the question examined

. Cost M gmt. Serv s. , Inc. v. City of Lakewood , 178 Wn.2d 635, 648

- 49, 310 P.3d 804 (2013). First, we review de novo whether “a statute specifies a duty such that mandamus may issue,” as a question of law. Id . at 649. Second, we review

“ ‘ [w]heth er there is a plain, speedy, and adequate remedy in the ordinary course of the law, ’ ” for an abuse of discretion as a question of fact. Id

. (quoting River Park Square, LLC v. Miggins , 143 Wn.2d 68, 76, 17 P.3d 1178 (2001)) . A court abuses its discretion if its decision is manifestly unreasonable or rests on untenable grounds or untenable reasons. State v. Rohrich , 149 Wn.2d 647, 654, 71 P.3d 638 (2003). A decision is based on untenable grounds or made for untenableNo. 48947

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5 reasons if it rests on facts unsupport ed by the record or was reached by applying the wrong legal standard. Id

. A decision is manifestly unreasonable if the court, despite applying the correct legal standard to the supported facts, reaches an outcome that is outside the range of acceptable

c hoices, such that no reasonable person could arrive at that outcome. Id

. Verjee

- Van argues that the superior court “treated the County’s motion to dismiss as a motion for summary judgment,” and that therefore our review should be exclusively de novo.
Br . of App ellant at 6. She cites no authority for this proposition. A court has discretion to have any material question of fact resolved by a jury in a mandamus case . RCW 7.16.210. In the absence of material issues of fact, the court may decide the matt er on argument by the parties. RCW 7.16.250. Therefore we review the superior court’s denial of the mandamus under the
two

- part standard of review articulated above.

II. T HE P RESENCE OF A P LAIN , S PEEDY , AND A DEQUATE R EMEDY AT L AW R EQUIRES D ISMISSAL OF THE M ANDAMUS A CTION In Eugster v. City of Spokane , we held that an applicant for a w rit of mandamus must
prove three elements. 118 Wn. App. 383, 402, 76 P.3d 741 (2003). First, the party that is the subject or target of the writ must be und er a clear duty to act. Id . Second, the applicant must have no plain, speedy , and adequate remedy in the ordinary course of law. Id

. Third, the applicant must be beneficially interested. Id. In this case, the parties dispute the first and second elem ents, the duty to act and the lack of an adequate remedy in the ordinary course of law. The party seeking a mandamus bears the “burden of proving all three elements justifying mandamus.” Id . at 403. Verjee

- Van claims that she d id not have a plain, spee dy, and adequate remedy in the ordinary course of law. In a mandamus action, for a remedy to be inadequate “ ‘ [t]here must be something in the nature of the action that makes it apparent that the rights of the litigants will notNo. 48947

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6 be protected or full redres s will not be afforded without the writ [of mandamus]. ’ ” Eugster , 118 Wn. App. at 414 (quoting City of Kirkland v. Ellis , 82 Wn. App. 819, 827, 920 P.2d 206 (1996))

. The Eugster court reasoned that “the remedy issue turns on whether the duty the plaintiff seeks to enforce ‘ cannot be directly enforced ’ by any means other than mandamus.” Id

. (quoting Bd. of Liquidation v. McComb , 92 U.S. 531, 536, 23 L. Ed. 531 (1875)) . The United Stat es Supreme Court has also reasoned that [t]he general principle which governs proceedings by mandamus is, that whatever can be done without the employment of that extraordinary remedy, may not be done with it. It only lies when there is practically no ot her remedy. Ex parte Rowland , 104 U.S. 604, 617, 26 L. Ed. 861 (1881). Under PCC 1.22.090 A , “ [ a ] ny person aggrieved, or any officer, department, board, agency, district or bureau of the County or State affected by any final decision of an administrative official, as set forth in PCC 1.22.080B, may file a notice of appeal,” to have a dispute heard by a hearing examiner. PCC 1.22.080B .1. f and g , respectively, include disputes relating to application s for permits under the County’s Shoreline Management Use Regulations and “[a]ppeals from any final administrative order or decision related to the administration, interpretation or enforcement of the Pierce County Code” among matters the hearing examiner is authorized to decide. On June 12, 2001, the County a pproved the shoreline exemption allowing the Borgert pier. Verjee

- Van could have appealed this determination to the hearing examiner under PCC 1.22. 090B , but she did not. Similarly, Verjee

- Van could have appealed the County ’ s June 4, 2012 rejection of her complaint about the Abercrombie fence to the examiner, but she did not. Had Verjee

- Van appealed the County’s determinations regarding the Borgert pier and the Abercrombie fence , the hearing examiner would have been able t o afford her plain, speedy , andNo. 48947

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7 adequate relief had she prevailed in that adjudication. Under PCC 1.22.090 H , “ [ t ] he Examiner may reverse or affirm, wholly or in part, or may modify the Administrative Official’s order, requirement, decisions or determinati on.” Given these broad powers, the e xaminer would have had authority to order the removal of the Borgert pier and Abercrombie fence, if illegal. I ndeed, in Verjee

- Van’s 2007 appeal before the e xaminer, the e xaminer ordered Verjee

- Van to remove her pier b ecause the examiner found that it violated PC C requirements. That these are prior remedies makes no difference. In Bock v. State , 91 Wn.2d 94, 95, 586 P.2d 1173 (1978), Bock filed a petition for a writ of mandamus to compel the s tate Board of Pilotage Com missioners (Board) to issue a pilot license after the Board determined that he failed his pilot examination. In holding mandamus unavailable, the c ourt explained: [T]he statutes governing the extraordinary writs of mandamus and prohibition allow the issua nce of those writs only “whe re there is not a plain, speedy [ , ] and adequate remedy in the ordinary course of law.” Appellant’s loss of the remedy provided by the APA [Administrative Procedure Act] through failure to file a timely petition for review does not render that remedy inadequate, or give rise to a right to extraordinary writs . Therefore, if APA review was available, the extraordinary writs are not. Id . at 98 (emphasis added) (internal citations omitted) (quoting RCW 7.16.170, .300)

. Similarly, in considering whether a party may seek a writ of mandamus because an otherwise available cause of action was precluded due to the statute of limitations, our Supreme Court held: The fact that relator has slept upon her rights, and permitted the period to lapse in which she could have brought an action for damages, thus depriving herself of a legal right, does not protect her in seeking to make use of mandamus to obtain the same relief for which, had she proceeded in time , her right in law would have been a mple. State v. City of Spokane , 92 Wash. 667, 669, 159 P. 805 (1916) (emphasis added). Because she had a plain, speedy , and adequate remedy in the ordinary course of law, the superior court did not abuse its discretion by determining that Verjee

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8 writ of mandamus. With this resolution, we need not consider whether the other necessary elements of a mandamus action are present.
III. A LLOWING V ERJEE

- V AN TO O BTAIN A W RIT OF M ANDAMUS A FTER F AILING TO P URSUE

A DEQUATE R EMEDIES W OULD O FFEND P RINCIPLES OF

F INALITY IN L AND U SE L AW Verjee

- Van argues that the trial court erred in its reliance on principles of finality in dismissing her petition for mandamus. She argues that because the c ounty administrative decisions against her were n ot final, she could not have appeal ed them to the hearing examiner and thus had no adequate remedy to pursue. She also argues that the general principles of finality in land use law do not preclude her mandamus action

. We disagree.
A gency action is fina l “ ‘ when it imposes an obligation, denies a right, or fixes a legal relationship as a consummation of the administrative process. ’ ” Evergreen Washington Healthcare Frontier LLC v. Dep ’t of Soc

. & Health Serv s. , 171 Wn. App. 431, 449, 287 P.3d 40 (2012) (internal citations omitted) (quoting Wells Fargo Bank, N.A. v. Dep’t of Revenue , 166 Wn. App. 342, 356, 271 P.3d 268 (2012)) . Our Supreme Court has stated that “[a] final agency action ‘ implies a definitive act of the agency, action which is binding unt il and unless it is set aside by a court. ’ ” Jones v. Dep ’t of Health , 170 Wn.2d 338, 357, 242 P.3d 825 (2010) (quoting Charles H. Koch, Jr., A DMINISTRATIVE L AW AND P RACTICE § 13.20, at 335 (2d ed. 1997)) . Our Supreme Court has also explained that “ ‘[ a ] l etter from an agency will constitute a final order if the letter clearly fixes a legal relationship as a consummation of the administrative process, ’ ” but only if the letter is clearly understandable as a final determination of rights. Smoke v. City of
Se attle , 132 Wn.2d 214, 222, 937 P.2d 186 (1997) (internal quotations marks omitted) (quoting Valley View Indus. Park v. City of Redmond , 107 Wn.2d 621, 634, 733 P.2d 182 (1987))

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9 In this case, the 2001 approval of the shoreline exemption for the Borgert pier and the 2012 e

- mail to Verjee

- Van regarding the Abercrombie fence each constitute d final agency actions that could have been appealed. County records show that a shoreline exemption was approved on June 13, 2001 for what would eventually be Borgert’s “5 x 24 as built [pier].” CP
at 52. The County’s approval of the exemption request indicates that the County determined that the pier comported with applicable c ounty regulations. Additionally , the 2012 e

- mail to Verjee

Van plainly state d that the Coun ty ha d determined that the Abercrombie fence did not violate the
P C C and that the County would not be taking further action with respect to the fence. Although Verjee

- Van points out that “no authority exists to suggest that a final decision could be issued by way of an e [

- ] mail communication,” she does not cite any author ity suggesting that such a communication is otherwise improper. Br. of App ellant at 16. To the contrary, because an agency letter may constitute a final agency action, Smoke , 132 Wn.2d at 222 , the mere assertion that an agency e

- mail cannot be a final ag ency action is unpersuasive. Because the 2001 shoreline exemption and the 2012 e

- mail regarding the Abercrombie fence each communicated a definitive act of an agency fixing a legal relationship, each act was a final administrative action that Verjee

- Van c ould have appealed. A more general application of principles of finality also supports the superior court’s decision. In Chelan County v. Nykr ei m , the County attempted to revoke land use decisions 14 months after they had been made because they had been erroneously approved. 146 Wn.2d 904, 914

- 915, 52 P.3d 1 (2002). Our Supreme Court held that even if the original land use decision was erroneous, the judicial “policy of finality of land use decisions,” and the provisions of the Land Use Petition Act (LU PA), chap ter 36.70C RCW, precluded further review of that decisionNo. 48947

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10 through a declaratory judgment action after the deadline for an appeal under LUPA had passed. Id . at 932

- 33. The court explained that it has: [R] ecognized a strong public policy supporting administrative finality in land use decisions. In fact, this court has stated that “ if there were not finality [ in land use decisions ] , no owner of land would ever be safe in proceeding with development of his p roperty. . . . To make an exception . . . would completely defeat the purpose and policy of

. . . making a definite time limit. ” Id . at 931

- 32 (alterations in original) (quoting Wenatchee Sportsmen Ass’n v. Chelan County , 141 Wn.2d 169, 181

- 82, 4 P.3d 12 3 (2000))

. A final local government decision on a request for a shoreline exemption may be challenged under LUPA, Dep artment of Ecology v. City of Spokane Valley , 167 W n . App. 952, 964, 275 P.3d 367 (2012), as may a final interpretive decision such as th e County’s decision on the Abercrombie fence. RCW 36.70C.020(2)(c). Consequently, the same policies favoring finality in Nykr ei m are also at play in this setting. Therefore, because the County issued final land use decisions regarding the Borgert pier and the Abercrombie fence, those decisions may not be reviewed in the absence of a timely appeal under the se principles of finality. Verjee

- Van appealed neither the shoreline exemption permit regarding the Borgert pier nor the County determination of comp liance regarding the Abercrombie fence. As such, the superior court properly determined that none of the alleged errors associated with these two improvements could be reviewed under the principles of finality applicable to land use decisions

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5 Because we hold that Verjee

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11 III. A P PELLATE C OSTS The County requests costs on appeal as the prevailing party under RAP 14.2

. Based on our analysis above, the County is the substantially prevailing party in this appeal and is entitled to costs under RAP 14.2 and RAP 14.3

. CONCLUSION Verje e - Van was not entitled to a writ of mandamus because she had plain, speedy , and adequate remedies to challenge the actions she complains of and because allowing her to obtain a writ after failing to pursue those remedies would offend principles of finality in land use law. Therefore, w e affirm the superior court. 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.

B JORGEN , C.J. We concur:

M ELNICK , J.

S UTTON , J.