* Kurt Kanam, Appellant V. Peter Kmet, Et Al, Respondents

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
KURT KANAM, No. 55861-1-II
Appellant,
v. PART-PUBLISHED OPINION
PETER KMET, CITY OF TUMWATER,
Respondents.
WORSWICK, J. — Kurt Kanam appeals a superior court order dismissing his declaratory
judgment action for lack of standing. Kanam sued the City of Tumwater and Mayor Peter Kmet
(collectively the City), seeking declaratory judgment to declare invalid two City ordinances and
enjoin their enforcement. The superior court dismissed Kanam’s lawsuit because he was not a
resident, taxpayer, or property owner in Tumwater.
In the published portion of this opinion, we hold that (1) Kanam does not have taxpayer
standing because he is not a resident or property owner in Tumwater and that the City’s growth
management plan with Thurston County does not confer standing on Kanam. In the unpublished
portion, we hold that (2) the City did not concede the allegations in Kanam’s complaint by filing
a CR 12(b) motion instead of an answer to the complaint, and (3) the court did not display
prejudice or violate the appearance of fairness doctrine by not rescheduling a hearing after he
twice failed to appear. Accordingly, we affirm.
Filed
Washington State
Court of Appeals
Division Two
May 3, 2022
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FACTS
Kanam is a resident of Thurston County, but he does not live in Tumwater.1 In
September 2019, Kanam wrote a letter to the City stating he desired to purchase a building
located at 240 Custer Way in Tumwater. Kanam requested the City confirm that the building
could be used for storage. The City promptly responded by letter, stating that use of the building
for storage would be a non-conforming use due to zoning changes in 2014. The City cited
Tumwater Municipal Code (TMC) section 18.54.70, and said that should Kanam purchase the
building and desire to seek a non-conforming use, he could apply for a conditional use permit
under chapter 18.56 TMC. Kanam did not purchase the building.
In September 2020, Kanam sent a letter to the Attorney General’s Office (AGO),
requesting that the office “take action to prevent any expenditure of public funds to enforce or
defend the Tumwater Municipal Code 18.54.070.” Clerk’s Papers (CP) at 43. The AGO did not
take action on Kanam’s request.
In December, Kanam filed a complaint for declaratory and injunctive relief. Kanam
claimed he had standing as a taxpayer and as “Private Attorney General.” CP at 2. He argued
1 Kanam lists an Olympia address in his complaint and states he is a “Thurston County citizen
and tax payer” in his amended complaint.
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that TMC 18.54.0702 and TMC 18.56.0203 were invalid because “they conflict with the United
States and Washington State Constitution, the Thurston County/Tumwater joint comprehensive
plan, RCW 43.21, RCW 19.27.095, and are an illegal expenditure of public funds.”4 CP at 3.
The City did not file an answer, but filed a motion to dismiss under CR 12(b), in which it
argued that Kanam lacked standing to bring a taxpayer derivative action because he did not
allege that he was a Tumwater taxpayer.5 The City also argued that the private attorney general
doctrine does not apply in Washington.
2 TMC 18.54.70 provides:
A nonconforming use shall be deemed abandoned by having been discontinued for
a period of two years, unless otherwise specified in the applicable zoning district
text, and any subsequent future uses of such land or building shall be a use closer
in conformity to the spirit and intent of the subject zone district, or in conformity
with the provisions of this title. Determination of a proposed replacement
nonconforming use, closer to the spirit and intent of the subject zone district, shall
be pursued by the application for a conditional use permit as set forth in TMC
Chapter 18.56.
Br. of Resp’t, Appendix A.
3 TMC 18.56.020 provides:
A request for a conditional use permit shall be submitted on an application form
available at the Tumwater community development department. Each application
shall be accompanied by a site plan, floor plan, building elevations, and a fee
established by resolution of the city council to help defray the cost of handling the
application, no part of which fee is refundable. Additions or deletions to the
contents of the application may be made by the administrative official.
Br. of Resp’t, Appendix A.
4 There is no chapter 43.21 RCW. Chapters 43.21A-43.21K RCW contain a wide breadth of
various environmental statutes. RCW 19.27.095 contains requirements for building permit
applications.
5 The City did not specify a subsection of CR 12(b).
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In January 2021, Kanam filed a response to the City’s motion to dismiss and moved to
amend his complaint. In his response, Kanam argued that he had standing as a Thurston County
taxpayer because Tumwater entered into a joint comprehensive plan with Thurston County,
which made the Tumwater ordinances Thurston County processes. The City stated it would not
oppose Kanam’s amendment so long as the superior court was willing to consider the City’s
pending motion to dismiss, which was scheduled for April 9. In his amended complaint, Kanam
reiterated his request for declaratory judgment, removed all reference to the private attorney
general doctrine, and stated that he was a “Thurston County citizen and tax payer” and that he
was proceeding with a taxpayer derivative lawsuit. CP at 167.
The City filed an amended motion to dismiss in March. The City argued that to have
standing to bring a taxpayer derivative action, Kanam must first allege facts that he is a taxpayer.
And because Kanam did not allege he was a taxpayer of Tumwater, he did not allege facts
sufficient to show that he was a proper party to invoke judicial resolution of the dispute.
Kanam failed to appear for the April 9 hearing.6 The court set over the hearing to April
16, when the court had scheduled a hearing on Kanam’s motion for declaratory judgment and
injunctive relief. Kanam again failed to appear. The court denied Kanam’s motion for
declaratory and injunctive relief, noting that Kanam failed to appear for the hearing.
The court also granted the City’s motion to dismiss. The court explained,
Review of the plaintiff’s complaint reveals that Mr. Kanam alleges standing to
challenge the City of Tumwater ordinances at issue based solely upon the City of
Tumwater’s refusal to permit a particular use of a building that Mr. Kanam is
interested in purchasing in the City of Tumwater. Mr. Kanam does not allege any
6 The court had ordered the hearing to take place remotely via Zoom.
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No. 55861-1-II
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current ownership interest in the building, nor does allege that he resides in, or pays
taxes to, the City of Tumwater.
CP at 230-31.
The court continued:
The Court finds: to request judicial review in this case Kanam must first request
action by the attorney general and that request must be refused. . . . And while no
showing of injury to the alleged taxpayer serves as an absolute bar, the law still
requires a request to the attorney general first.
CP at 231.
Kanam filed a motion for reconsideration on April 27. He argued that the superior court
erred because he had requested action from the attorney general before filing suit and that recent
changes were made to the Thurston County/Tumwater joint comprehensive plan before the
court’s ruling. On March 31, the joint comprehensive plan had been updated to include a policy
goal that states: “Ensure the processing of applications for development permits in a timely and
fair manner, and coordinate processing between the City of Tumwater and Thurston County to
enhance predictability.” CP at 263. Kanam argued that this clause, added since his amended
complaint, made Tumwater permit processes Thurston County processes, and that he therefore
had standing as a Thurston County resident. He further argued he was not given fair notice of
the hearings and learned of them only on the day they were scheduled.
The City responded that Kanam had contacted its offices two days before the April 9
hearing to inquire whether the hearing would be in person or held remotely. The City informed
Kanam that the hearing would be held remotely and provided him the call-in information. The
City also argued that the Thurston County/Tumwater joint comprehensive plan and its associated
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changes did nothing to confer standing on Kanam because the joint comprehensive plan does not
make him a Tumwater taxpayer. The court denied Kanam’s motion for reconsideration.
Kanam appeals the order granting the City’s motion to dismiss and the order denying
reconsideration.
ANALYSIS
TAXPAYER STANDING
Kanam argues that he has taxpayer standing as a Thurston County taxpayer to challenge
Tumwater City ordinances because the Thurston County/Tumwater joint comprehensive plan
converted Tumwater City building permit processes into Thurston County processes. Kanam
does not allege that he is a Tumwater taxpayer, resident, or property owner, or that he has any
interest in the building on Custer Way, other than a speculative one. We hold that Kanam does
not have taxpayer standing to sue the City.
A. Legal Principles
“Standing is a ‘party’s right to make a legal claim or seek judicial enforcement of a duty
or right.’” State v. Link, 136 Wn. App. 685, 692, 150 P.3d 610 (2007) (quoting BLACK’S LAW
DICTIONARY (8th ed. 2004)). Taxpayer standing requires a plaintiff to be a taxpayer, in addition
to making a request to the attorney general to take action, and have that request denied. Lee v.
State, 185 Wn.2d 608, 615, 374 P.3d 157 (2016). A mere disagreement with governmental
action is not enough to confer standing. Lee, 185 Wn.2d at 615.
In his amended complaint, Kanam requested declaratory judgment under the Uniform
Declaratory Judgments Act (UDJA), chapter 7.24 RCW, and alleged a taxpayer derivative
lawsuit. Although Kanam purported to assert two causes of action, “a ‘taxpayer derivative suit’
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is not a separate cause of action pursuant to which a party can seek declaratory relief.” Pasado’s
Safe Haven v. State, 162 Wn. App. 746, 752, 259 P.3d 280 (2011). The UDJA is the sole cause
of action by which a plaintiff may seek declaratory judgment. Pasado’s Safe Haven, 162 Wn.
App. at 752. “Rather than creating a separate cause of action, taxpayer standing principles
simply provide a means to establish standing to bring such a claim.” Pasado’s Safe Haven, 162
Wn. App. at 752-53; see also State ex rel. Tattersall v. Yelle, 52 Wn.2d 856, 861, 329 P.2d 841
(1958). “The two means of establishing standing do not equate to there being two different
causes of action.” Nw. Animal Rights Network v. State, 158 Wn. App. 237, 247 n. 9, 242 P.3d
891 (2010). Thus, Kanam brought only one cause of action and sought a single remedy: the
invalidation of provisions of the TMC. See Pasado’s Safe Haven, 162 Wn. App. at 753.
B. Motion to Dismiss
Kanam argues that the superior court erred when it dismissed his lawsuit for lack of
standing. He argues that he has standing as a taxpayer to challenge provisions of the City’s
municipal code. We disagree.
We review de novo an order dismissing a case for lack of standing under CR 12(b)(6).
Deegan v. Windermere Real Estate/Ctr.-Isle, Inc., 197 Wn. App. 875, 884, 391 P.3d 582 (2017).
Dismissal under CR 12(b)(6) is proper where “it appears beyond doubt that the plaintiff can
prove no set of facts consistent with the complaint that would entitle him or her to relief.”
Larson v. Snohomish County, 20 Wn. App. 2d 243, 263, 499 P.3d 957, 970 (2021). We take the
plaintiff’s allegations in the complaint as true and consider hypothetical facts outside the record.
Deegan, 197 Wn. App. at 884. “Because de novo review is based on the complaint and
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hypothetical facts, findings of fact by the trial court are superfluous.” Deegan, 197 Wn. App. at
884.
To bring a taxpayer suit, the complaint must allege both the taxpayer’s cause of action
and facts supporting taxpayer status. Friends of N. Spokane County Parks v. Spokane County,
184 Wn. App. 105, 122, 123-24, 336 P.3d 632 (2014); Dick Enters., Inc. v. Metro. King County,
83 Wn. App. 566, 572-73, 922 P.2d 184 (1996). “It is the responsibility of the complainant
clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the
dispute and the exercise of the court’s remedial powers.” Warth v. Seldin, 422 U.S. 490, 518, 95
S. Ct. 2197, 45 L. Ed. 2d 343 (1975); Friends of N. Spokane County Parks, 184 Wn. App. at 115.
Where a complainant is not a taxpayer, however, any claims based on taxpayer standing must be
dismissed. See Friends of N. Spokane County Parks, 184 Wn. App. at 123-24; Dick Enters.,
Inc., 83 Wn. App. at 572-73.
Here, Kanam does not allege facts sufficient to demonstrate that he has standing to
dispute the TMC ordinances. Kanam does not allege that he is a Tumwater taxpayer, only that
he is a citizen and taxpayer of Thurston County, in which Tumwater is located. Indeed, Kanam
does not even supply a Tumwater address in his court filings. Moreover, Kanam does not allege
that he owns any real property in Tumwater or that his interest in the building on Custer Way is
more than speculative; he has no legal interest in the building as either owner or tenant. Because
Kanam is not a Tumwater taxpayer, resident, or property owner, he lacks standing to challenge
TMC ordinances.
Kanam argues that he has standing under the Thurston County/Tumwater joint
comprehensive plan because the agreement makes Tumwater processes Thurston County
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processes. Kanam cites no authority to show that Thurston County adopted the Tumwater
ordinances or to show that joint comprehensive plans make city municipal processes binding on
counties or county residents. Nor does Kanam show that the mere existence of a city-county
joint plan confers taxpayer standing on county residents to sue a city. “Where a party does not
cite to such authority, we assume there is none.” Peterson v. Dep’t of Labor & Indus., 17 Wn.
App. 2d 208, 237, 485 P.3d 338 (2021). Instead, Kanam cites to the language of the joint
comprehensive plan itself to argue it confers standing on him. Accordingly, his argument fails.
Kanam cites two of the thirteen policy goals the joint comprehensive plan puts forth to
comply with the Growth Management Act, chapter 36.70A RCW:
7. Permits. Application for both State and local government permits should
be processed in a timely and fair manner to ensure predictability.
. . . .
13. Historic preservation. Identify and encourage the preservation of lands,
sites, and structures that have historical or archaeological significance.
The City of Tumwater and Thurston County have historic preservation programs
which provide processes for designation of local historic sites for protection.
Similar programs are conducted at the State and national levels. The Joint Plan
land use element contains goals and policies encouraging consistency with and
support for these programs. (Goal #12, Policies 12.1 & 12.2).
CP at 68, 70; Br. of Appellant at 19, 21.
These statements are policy goals with no operative force. Policy declarations in statutes
serve as an important guide to us, but they have no operative force. Puget Soundkeeper All. v.
Dep’t of Ecology, 102 Wn. App. 783, 790, 9 P.3d 892 (2000). Moreover, nothing in them shows
that the Tumwater ordinances, TMC 18.54.070 and TMC 18.56.020, may be enforced by the
county. TMC 18.54.070 states that a nonconforming use of a building for two years may result
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No. 55861-1-II
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in the building being deemed abandoned. TMC 18.56.020 details the requirements for
applications for a conditional use permit. The joint comprehensive plan does not adopt these
requirements. Instead, the passages of the joint comprehensive plan encourage
intergovernmental cooperation in urban planning.7
Kanam makes no showing that TMC 18.54.070 and TMC 18.56.020 are connected in any
way to the joint plan. As stated above, nothing in the joint comprehensive plan universally
adopts or even cites TMC 18.54.070 and TCM 18.56.020. The fact that there is joint planning to
coordinate growth between Thurston County and Tumwater has no bearing on a non-taxpayer’s
standing to challenge the ordinances of a municipality that he does not inhabit. Just because the
planning process is “joint” does not mean that both Thurston County and Tumwater jointly
enforce Tumwater municipal ordinances. Kanam cannot show that he is affected by TMC
18.54.070 and TCM 18.56.020 in any material way.
CONCLUSION
Because Kanam does not allege facts sufficient to show that he is a Tumwater taxpayer,
resident, or property owner, we hold that he lacks standing. We further hold that nothing in the
Thurston County/Tumwater joint comprehensive plan makes Kanam a Tumwater taxpayer. We
affirm.
A majority of the panel having determined that only the foregoing portion of the opinion
will be printed in the Washington Appellate Reporters and that the remainder shall be filed for
public record in accordance with RCW 2.06.040, it is so ordered.
7 City and county planning is governed by the Growth Management Act. Challenges to county
or city planning are properly brought before the Growth Management Hearings Board. RCW
36.70A.280.
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UNPUBLISHED TEXT FOLLOWS
Next, Kanam argues that the superior court abused its discretion when it denied his
motion for reconsideration.8 Kanam also argues that the City conceded all of the issues in his
complaint on the merits because it responded to his complaint with a motion to dismiss and did
not file an answer. Kanam then argues that the superior court violated the appearance of fairness
doctrine when it did not reschedule the hearing on his motion for declaratory judgment after he
twice failed to appear for hearings on the City’s motion to dismiss. Each of Kanam’s arguments
fail.
I. MOTION FOR RECONSIDERATION
Kanam argues that the superior court abused its discretion when it denied his motion for
reconsideration. He argues that the trial court erred because he showed in his motion for
reconsideration that the updated joint comprehensive plan conferred standing on him. We
disagree.
We review the superior court’s decision granting or denying a motion for reconsideration
for abuse of discretion. City of Longview v. Wallin, 174 Wn. App. 763, 776, 301 P.3d 45 (2013).
A trial court abuses its discretion where its ruling is manifestly unreasonable or based on
untenable grounds, which includes those that are unsupported by the record or result from
applying the wrong legal standard. Gilmore v. Jefferson County Pub. Transp. Benefit Area,
8 Kanam also assigns error to the superior court’s order denying his motion for declaratory and
injunctive relief. However, he did not appeal this order, and he does not argue this issue in his
brief. Thus, we do not consider the assigned error. Greensun Grp., LLC v. City of Bellevue,
7 Wn. App. 2d 754, 780 n. 11, 436 P.3d 397 (2019).
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190 Wn.2d 483, 494, 415 P.3d 212 (2018). CR 59 governs motions for reconsideration and
provides, in relevant part,
(a) Grounds for New Trial or Reconsideration. On the motion of the party
aggrieved, a verdict may be vacated and a new trial granted to all or any of the
parties, and on all issues, or on some of the issues when such issues are clearly and
fairly separable and distinct, or any other decision or order may be vacated and
reconsideration granted. Such motion may be granted for any one of the following
causes materially affecting the substantial rights of such parties:
(4) Newly discovered evidence, material for the party making the application,
which the party could not with reasonable diligence have discovered and produced
at the trial.
Kanam argues that the trial court erred when it found that he did not seek action from the
AGO. The City concedes that Kanam sought action from the AGO and the AGO refused. But
we need not analyze the superior court’s findings to the contrary because they are superfluous.
Deegan, 197 Wn. App. at 884. The City argues that Kanam lacks standing, notwithstanding his
request for AGO action, because Kanam did not allege sufficient facts to show he was a City
taxpayer. We agree.
In his motion for reconsideration, Kanam relied on “newly discovered evidence” a policy
goal from the March 2021 update to the joint comprehensive plan that stated: “Ensure the
processing of applications for development permits in a timely and fair manner, and coordinate
processing between the City of Tumwater and Thurston County to enhance predictability.” CP
at 263. On appeal, Kanam cites a different policy goal from the updated joint comprehensive
plan:
GOAL #l
Ensure that the Joint Plan Land Use Element is implementable and coordinated with
all applicable City of Tumwater and Thurston County plans and regulations and the
plans of other jurisdictions in the Thurston region.
CP at 262, Br. of Appellant at 17.
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Policy goals to “coordinate” Tumwater and County plans with other jurisdictions do not
join the municipal ordinances of all affected municipalities. Nothing in the language of either of
these passages shows that Thurston County adopted Tumwater processes or confers standing on
Kanam as a Tumwater taxpayer. Moreover, these passages are policy declarations with no
operative force. Puget Soundkeeper All., 102 Wn. App. at 790. Although the superior court was
mistaken in finding that Kanam did not contact the AGO, that finding has no impact on his lack
of standing. Accordingly, we hold that the superior court did not abuse its discretion when it
denied Kanam’s motion for reconsideration because none of his “newly discovered evidence”
established that he had taxpayer standing.
II. CONCESSION ON THE MERITS
Kanam argues that the City conceded each and every issue on the merits or waived them
on appeal because the City did not file an answer to his complaint. We decline to consider
Kanam’s concession arguments on their merits.
Kanam argues that the City conceded all the points he raised in his complaint and
amended complaint because the City filed a motion to dismiss and did not file an answer. By
this logic, Kanam argues, we should hold that he prevails on the merits. But this is not the rule.
Defendants are not required to file an answer if they file a motion under CR 12(b).
CR 12(a) mandates the time within which a defendant shall serve an answer on a
plaintiff. However, under CR 12(a)(4):
The service of a motion permitted under this rule alters these periods of time as
follows, unless a different time is fixed by order of the court.
(A) If the court denies the motion or postpones its disposition until the trial
on the merits, the responsive pleading shall be served within 10 days after notice of
the court’s action.
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(B) If the court grants a motion for a more definite statement, the responsive
pleading shall be served within 10 days after the service of the more definite
statement.
Motions to dismiss are allowed under CR 12(b). Accordingly, the City was required to
file an answer only if the court denied or postponed its motion to dismiss. In re Marriage of
Owen and Phillips, 126 Wn. App. 487, 503, 108 P.3d 824 (2005); Campbell v. Scannell, 32 Wn.
App. 346, 348, 647 P.2d 529 (1982). Because the superior court granted the City’s motion to
dismiss, the City was not required to file an answer. Thus, we hold that the City did not concede
any arguments or waive its ability to respond on appeal.
III. FAILURE TO APPEAR
Kanam argues that the superior court was biased against him because it did not
reschedule the hearing for the motion for declaratory judgment. Kanam does not argue that the
court erred in entering the order dismissing his motion for declaratory judgment after he twice
failed to appear, but instead argues that the superior court violated the appearance of fairness
doctrine when it did not reschedule the hearing on his motion for declaratory judgment after he
failed to appear.
Under RAP 2.5(a), an “appellate court may refuse to review any claim of error which was
not raised in the trial court.” We generally refuse to consider appearance of fairness issues raised
for the first time on appeal because it is not considered a constitutional claim of error. Tacoma S.
Hosp., LLC v. Nat’l Gen. Ins. Co., 19 Wn. App. 2d 210, 220 n. 2, 494 P.3d 450 (2021), review
denied, 198 Wn.2d 1041, 502 P.3d 862 (2022); State v. Morgensen, 148 Wn. App. 81, 91, 197
P.3d 715 (2008).
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The superior court set a hearing date of April 9, 2021, to hear argument on the City’s
motion to dismiss. Kanam failed to appear. The court set over the hearing until April 16, when
the court had scheduled a hearing on Kanam’s motion for declaratory judgment and injunctive
relief. Kanam again failed to appear. The court denied Kanam’s motion for declaratory and
injunctive relief, noting that Kanam failed to appear for the hearing. Kanam made no motion to
reschedule the hearing and filed no affidavit of prejudice.
On appeal, Kanam appears to argue that the court should have known from his first
failure to appear that he was not receiving proper notice of the hearings and that not setting over
the hearings a second time demonstrates the court was biased against him. But Kanam cannot
use his own failures to appear as a sword on appeal. We decline to consider this argument.
CONCLUSION
We do not examine Kanam’s claims on their merits and hold that the City did not
concede any claims. We do not reach Kanam’s argument that the superior court violated the
appearance of fairness doctrine because Kanam raises this argument for the first time on appeal.
RAP 2.5. Accordingly, we affirm.
Worswick, P.J.
We concur:
Maxa, J.
Veljacic, J.
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