John Postema Et Ano.,appellants V. Snohomish County

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JOHN POSTEMA and MARIJKE POSTEMA, husband and wife, No. 88748-3-I

Appellants, DIVISION ONE v. UNPUBLISHED OPINION

SNOHOMISH COUNTY and PETER CAMP, in his official capacity as Hearing Examiner for Snohomish County,

Respondents.

HAZELRIGG, C.J. — John and Marijke Postema appeal from the order of the superior court that denied and dismissed without prejudice their petition for a writ of prohibition against the Snohomish County hearing examiner. The Postemas sought the writ in order to prohibit the hearing examiner from reaching a determination on an alleged land use code violation issued against them by Snohomish County until the superior court entered a ruling that identified the parties’ respective property interests in the real estate underlying the violation. Because such a determination is not necessary to decide the question of the county code violation, the superior court did not err when it rejected their petition, and accordingly, we affirm.

FACTS

In October 2024, the Snohomish County Department of Planning and Development Services issued a notice of violation to John and Marijke Postema that alleged, as relevant here, they violated the Snohomish County Code (SCC) by placing fencing and vegetation within the right-of-way of a public road on certain real estate located in Snohomish County that the County alleged it owned. 1 The Postemas appealed the notice of violation to the Snohomish County hearing examiner and argued that the County’s property interest in the real estate “was only an easement for constructing a road,” they could “use the area in any manner that d[id] not interfere with the County’s use,” and the County had “obtained the right to place a road on those 30 feet but failed to do so”; on those bases, they contended that the County had not opened its right-of-way as provided in Snohomish County Code. 2 In addition to those factual disputes, the Postemas argued that resolution of their appeal of the notice of violation would “require determination of the County’s and the Postemas’ rights in the right[-]of[-]way based on the deeds and proof of where the alleged occupations allegedly occurred.” Such a determination, they continued, required a ruling as to the title and possession of real property, an issue within the original jurisdiction of the superior court. Therefore, they averred, the hearing examiner was without authority to consider the Postemas’ appeal of the notice of violation.

1 The notice of violation contained four additional violations, but the parties agreed to bifurcate their appeal of those allegations from the one at issue here.

2 The relevant provisions of the Snohomish County Code are analyzed infra.

3

The County responded by arguing that although it believed that it was conveyed fee title to the right-of-way in question,

resolution of that issue [wa]s not necessary to the authority of the Department of Public Works to cite Appellants for obstruction of an open right[-]of[-]way. If the right[-]of[-]way in question is open, any fence or vegetation within said right[-]of[-]way is subject to regulation under Ch. 13.50 SCC and requires a permit regardless of whether the County holds fee title or merely an easement for public right of way.

The hearing examiner, however, did not resolve the factual dispute of whether the County opened the right-of-way. Rather, the examiner adopted the Postemas’ premise that resolution of the title and possession of real estate issue was required to resolve the County’s alleged land use violation. In adopting the premise supplied by the Postemas, the examiner did not address or mention the portion of the County’s argument that resolution of the jurisdictional issue was not required to resolve whether the County had opened the right-of-way. Instead, the examiner mischaracterized the County’s contention as only “arguing the county owns the property by deed rather than being allowed to use the property due to an easement.” Consequently, the examiner ruled that he “lack[ed] subject matter jurisdiction to entertain a constitutional objection to the notice of violation.” The parties subsequently filed a proposed stipulation and order that, as relevant here, stayed the hearing examiner proceedings on the right-of-way occupation violation, which the hearing examiner signed.

The Postemas then filed a petition for a writ of prohibition in Snohomish County Superior Court against both Snohomish County and the hearing examiner. Their petition requested that the court issue a writ “prohibiting the Snohomish

4

County [h]earing [e]xaminer from any proceeding involving [the Postemas] and questions as to title and possession of real property unless those questions are resolved by a Superior Court.” 3 The Postemas’ briefing in support of their writ, and the County’s responses thereto, reiterated the parties’ arguments made before the hearing examiner. 4 Following a hearing, the court denied the Postemas’ request, dismissed their petition without prejudice, and remanded the matter to the hearing examiner for further proceedings.

The Postemas timely appealed.

ANALYSIS

The Postemas assert that the superior court erred when it denied their petition for a writ of prohibition. We disagree.

RCW 7.16.290 sets forth that

[t]he writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board or person.

(Emphasis added.) The subsequent statutory provision, RCW 7.16.300, establishes that a writ of prohibition

may be issued by any court, except district or municipal courts, to an inferior tribunal, or to a corporation, board or person, in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law.

(Emphasis added.)

3 The hearing examiner filed a response in the superior court taking no position on this

matter beyond confirming certain background facts.

4 The County also filed a counterclaim that set forth a quiet title action regarding the right-

of-way, which the superior court later dismissed without prejudice.

5

We have recognized that a “‘writ of prohibition is a drastic remedy.’” In re Jurisdiction of King County Hr’g Exam’r, 135 Wn. App. 312, 318, 144 P.3d 345 (2006) (quoting City of Olympia v. Thurston County Bd. of Comm’rs, 131 Wn. App. 85, 91, 125 P.3d 997 (2005)). Its issuance is proper only when “‘(1) it appears the body to whom it is directed is about to act in excess of its jurisdiction and (2) the petitioner does not have a plain, speedy, and adequate remedy in the ordinary course of law.’” Id. (emphasis added) (quoting City of Olympia, 131 Wn. App. at 91). If a party seeking the issuance of such a writ does not establish either requirement, their claim fails. Id. We review a trial court order regarding such a writ for abuse of discretion. Id. at 319.

The Postemas contend that the hearing examiner’s resolution of the County’s notice of violation as to the right-of-way obstruction would result in the examiner acting in excess of his authority. They are mistaken.

To establish the first requirement for the issuance of a writ of prohibition, “[i]t must be clear and inarguable that the body to which a writ of prohibition is directed entirely lacks jurisdiction.” Id. at 318.

As a threshold matter, the Postemas correctly conceded at oral argument in this matter that it is within the county hearing examiner’s authority to interpret and apply the county code. 5 Therefore, if all that remained for the hearing examiner to decide in order to resolve the County’s notice of violation allegation referenced herein was to interpret and apply the code to the facts before him, then

5 Postema v. Snohomish County, No. 88748-3-I (July 16, 2026), at 5 min., 24 sec., video

recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/division-1- court-of-appeals-2026071141/.

6

it is undisputed that such a decision would plainly be well-within the examiner’s authority.

Next, the parties’ concessions herein reflect that the County possesses a property interest that is sufficient for the hearing examiner to address their remaining dispute regarding the violation at issue. Here, the County’s notice of violation that the Postemas appealed to the hearing examiner alleged that they had engaged in the following:

Right of Way Occupation:

Allowing any structure, object, or feature to be unlawfully placed or maintained within the right-of-way of 200th STREET SE, in violation of Snohomish County Code, Section 13.01.040(1). The Identified structure, object or features are:

1. Wood fence placed or maintained along the north side of 200th STREET SE, from Broadway Ave extending east to the end of the cul-de-sac.

2. Trees placed along 200th STREET SE, from Broadway Ave. extending east to the end of the cul-de-sac.

The right[-]of[-]way known as 200th Street SE was recorded under recording # 241552 Volume 924 Page 43 on November 28, 1975.

This recording shows the conveyance and quit claim to Snohomish County for thirty (30) feet of right[-]of[-]way along the south property lines.

(Boldface omitted.) The county code provision mentioned in that violation stated as follows:

It shall be unlawful to place or maintain any structure, object or feature within the right-of-way except where done pursuant to a contract with the county, permission granted by the department pursuant to this chapter, or other specific legal authority.

SCC 13.01.040(1) (emphasis added).

The county code defined “right-of-way” as meaning

all property in which the county has any form of ownership or title and which is held for public road purposes, regardless of whether or not

7

any road exists thereon or whether or not it is used, improved, or maintained for public travel.

SCC 13.02.340 (emphasis added). The code further differentiated between two types of rights-of-way, with a “opened” right-of-way defined as a “county right-of- way that contains improvements maintained by the county constructed for the purpose of public use,” SCC 13.02.342, and an “unopened” right-of-way as a “right- of-way that is not maintained by the county and may or may not contain improvements constructed for the purpose of public use.” SCC 13.02.345.

As relevant here, it is undisputed that the County had a property interest granting it a right-of-way for a public road on the property in question; at oral argument in this matter, the Postemas agreed that the county code defines right- of-way. 6 See SCC 13.02.340. They further conceded that pursuant to the code’s definition of a county right-of-way as “all property in which the county has any form of ownership or title,” a qualifying property interest included an easement interest. 7 See SCC 13.01.040(1), 13.02.340. And both parties agreed that the County had, at a minimum, an easement interest in the property in question. 8 It is also undisputed that the parties disagreed as to whether the County has opened its right-of-way since the property interest was conveyed to it. However, whether the county has done so involves a question of fact and interpretation and application of county code provisions, squarely within the examiner’s authority. Specifically, at oral argument in this matter, the Postemas agreed that the county code sets forth definitions for opened right-of-way and

6 Id. at 5 min., 12 sec.

7 Id. at 5 min., 33 sec.

8 Id. at 1 min., 26 sec.; 5 min. 53 sec.; 10 min., 5 sec.

8

unopened right-of-way. 9 See SCC 13.02.342, .345. Moreover, the County does not meaningfully dispute that if its right-of-way is unopened, its alleged right-of-way obstruction violation would fail. Conversely, the Postemas indicate on appeal that “if the County owned only an easement and wanted to open that portion of the right-of-way for public travel, the Postemas are willing to remove anything they have placed that interferes with that use.” Given all of that, the hearing examiner plainly has the authority to resolve the parties’ dispute regarding the alleged right- of-way obstruction.

Nevertheless, the Postemas assert that such resolution also requires that the examiner reach a determination about the parties’ respective ownership interests with regard to the real property on which the alleged obstruction is located. This assertion fails. As they conceded at oral argument, 10 the hearing examiner could assume without deciding that the Postemas held title to the land in question and proceed to issue a ruling as to the notice of violation in question; that is, whether the County had opened its right-of-way and whether the Postemas’ use therein obstructed the County’s use. Thus, a determination by the examiner of the parties’ specific property rights was not material to the notice of violation before him. Therefore, the Postemas do not establish that the examiner was about to act in excess of his jurisdiction, one of the two prerequisites for relief in the form of a

9 Id. at 5 min., 12 sec.

10 Id. at 8 min.

9

writ of prohibition. Accordingly, the trial court did not abuse its discretion when it denied their petition for writ of prohibition.

Affirmed.

WE CONCUR: