Kane v. City of Bainbridge Island, No. 3:2010cv05731 - Document 68 (W.D. Wash. 2011)
Court Description: ORDER granting 30 Defendant's Motion for Summary Judgment; Denying Defendant's request for legal fees; finding as moot 56 Defendant's Alternative Motion for Summary Judgment; finding as moot 67 Stipulated Motion for Continue Trial Date. All of plaintiff's claims against defendant are dismissed. Signed by Judge Ronald B. Leighton.(DN)
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Kane v. City of Bainbridge Island Doc. 68 HONORABLE RONALD B. LEIGHTON 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 9 10 ELYSE KANE, a single person, and ELYSE KANE, d/b/a KANE CONSTRUCTION AND CONSULTING, a sole proprietorship, 12 13 14 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [Dkt. #30] Plaintiff, 11 No. 3:10-cv-05731-RBL v. CITY OF BAINBRIDGE ISLAND, Defendant. 15 16 17 INTRODUCTION THIS MATTER comes before the Court upon Defendant City of Bainbridge Island’s 18 Motion for Summary Judgment. [Dkt. #30]. 19 This is a case about a land use dispute involving Plaintiff’s waterfront property on 20 Bainbridge Island. When Plaintiff bought it, the property could not be developed because it lay 21 completely within a wetland buffer. The City offered a use exception to allow some building on 22 the property. Even when Plaintiff exceeded the limits of the exception by developing the property 23 in an impermissible manner, the City retroactively approved many of the developments anyway. 24 Plaintiff was unsatisfied because the City did not allow all of her uses and other proposed 25 developments. She appealed the City’s decision, claiming it violated her property rights. A 26 Hearing Examiner affirmed the City’s decision. After a circuitous appeal and remand process, 27 28 ORDER - 1 Dockets.Justia.com 1 Plaintiff filed this suit against the City for damages, making a wide variety of claims. The City 2 filed this Motion for Summary Judgment, seeking dismissal of all claims. 3 4 The Court has reviewed the materials submitted in support of and in opposition to the Motion. For the reasons below, the Court GRANTS Defendant’s Motion for Summary Judgment. BACKGROUND 5 6 Plaintiff Elyse Kane is a property developer, former Seattle environmental compliance 7 officer, and the former owner of the Bainbridge Island property at issue in this case (the 8 “Property”). Defendant City of Bainbridge Island is a municipal corporation organized under the 9 laws of the State of Washington. 10 11 1. State and Municipal Law at Issue The City’s municipal code establishes a process to evaluate and adjudicate applications for 12 land use and property development. The Critical Areas Ordinance (CAO) includes requirements 13 for the use and development of parcels within or adjacent to land designated as “critical areas” or 14 “critical area buffers” according to the state’s Growth Management Act (GMA) (Wash. Rev. Code 15 § 36.70A). Wetlands of a certain size and value are considered critical areas under the act. The 16 GMA applies to Kane’s Property because it is located entirely within a designated wetland buffer. 17 Because the Property is waterfront, the state Shoreline Management Act (SMA) (Wash. Rev. Code 18 § 90.58) also applies via the City’s Shoreline Master Plan (SMP). In regulating Kane’s property 19 use, the City applied the more stringent regulations of the CAO rather than the SMP. 20 2. Development of the Kane Property 21 In 2000, Plaintiff purchased four waterfront parcels on Bainbridge Island. In 2004, she 22 sold one parcel to a private purchaser and offered the other three to the City for environmental 23 conservation through its Open Space acquisitions program. After arms-length negotiations, the 24 City purchased two parcels. Kane argues the land she sold to the City was encumbered by an 25 implied non-exclusive access easement for the benefit of the parcel she retained. The City 26 contends Kane did not retain any rights or easements on the two parcels sold to the City. Kane 27 kept the remaining parcel, which is approximately 13,200 square feet in size. That parcel and her 28 development of it is the subject of this action. The Property was entirely subsumed by a wetland ORDER - 2 1 buffer, set aside from development under the state GMA and the City’s CAO. Consequently, Kane 2 filed an application with the City for a Reasonable Use Exception (RUE) to allow residential 3 development on the Property. 4 Over neighborhood opposition, the RUE was granted on June 12, 2004. Several conditions 5 were imposed by the City, including limiting the house’s footprint to 1,085 square feet, 225 square 6 feet for the footprint of an open carport, and a driveway in conformance with the proposed site 7 plan. The City’s administrative decision allowed for 10,900 square feet to be deemed “impact 8 area,” or an area in which development of the Property could occur. To offset development in the 9 impact area, the decision required that a corresponding 10,900 square feet of wetland buffer both 10 on- and off-property be set aside as an undisturbed “enhancement area.” The on-property portion 11 of the enhancement area was determined to be 1,930 square feet. The City also required Kane to 12 obtain an approved building permit “in substantial conformance with the [site] plans” before 13 commencing any construction on the Property. [Decl. of Larry Frazier, Dkt. #31 at 8]. Kane did 14 not challenge or appeal the conditions imposed by the administrative decision accompanying the 15 RUE. 16 After the City issued the RUE, Kane built a home and developed her Property. Among 17 other things, she constructed a driveway that diverged from the site plan and involved travel over 18 the neighboring property. Using concrete pavers, Kane constructed a patio that was not on the site 19 plan. She utilized a parking area inconsistent with the site plan. Kane also installed a shed and 20 propane tank and parked a recreational vehicle on the Property. None of these improvements were 21 explicitly permitted in the approved RUE and site plan. 22 23 3. Disputes and Amendments to the RUE Kane’s development and use of her Property led her neighbors to complain to the City, 24 registering their concern about unlawful development. Rather than pursue code enforcement, the 25 City allowed Kane to file an application to amend her existing RUE. The purpose was to obtain 26 post hoc City approval for the disputed developments. 27 28 Kane now contends she filed the application to amend under duress. She alleges that City officials threatened code enforcement actions against her for uses of her Property she believes ORDER - 3 1 were legal. She notes that the RUE’s original application form required identification of only the 2 “structures” and “impervious surfaces” planned for construction. [Decl. of Elyse Kane, Ex. 16, 3 Dkt. #44 at 36]. Kane argues that the RUE did not restrict the patio, parking area, shed, propane 4 tank, or RV, because they were not were not “structures” or impervious surfaces. She also argues 5 that an easement existed to allow access via a pre-existing driveway. Nevertheless, Kane filed an 6 application to amend the RUE in October 2006, without challenge or objection. 7 Among other things, Kane’s proposed modified site plan included changes to the existing 8 approved driveway, inclusion of the cement-paver patio, and retention of the RV parking area and 9 storage shed. The City’s response memorandum approved most of the proposed amendments, 10 including the patio. However, the City did not approve permanent RV parking or the shed. After 11 receiving City approval for driveway modifications, Kane asserted that the approved driveway 12 plan was insufficient. She appealed the City’s decision to the Bainbridge Island Hearing Examiner 13 on March 15, 2007. She contested several administrative decisions. She challenged the City’s 14 refusal to allow RV storage and shed. She challenged her obligation to move the propane tank as 15 close to the residence as possible and contested the requirement that she remove the gravel parking 16 area behind the home and to replace it with native vegetation. 17 On April 27, 2007, the Hearing Examiner stayed the appeal so Kane could file a second 18 application to amend the RUE. On February 27, 2008, she filed a second amendment, requesting 19 relocation of the existing access and driveway to cross the adjacent parcel. Kane expressed 20 concerns about driveway safety and a desire to comply with city code. She proposed transitioning 21 the carport to storage use and building a replacement two-car garage on the landward side of the 22 existing structure in order to accommodate parking off the new access area. On July 25, 2008, the 23 City rejected these proposals. In its denial, the City said that the proposed amendment took for 24 granted property rights Kane had sold away (namely, an access easement across the adjacent lot). 25 It also noted that the house’s footprint would exceed the maximum lot coverage permitted in the 26 Code and that the proposals exceeded what was necessary under the RUE ordinance. Kane timely 27 appealed the second decision as well. 28 ORDER - 4 1 2 3 4. Procedural Background a. Appeal to the Bainbridge Island Hearing Examiner In a consolidated appeal of the two denied amendment proposals, Kane and the City were 4 represented by counsel during a three-day administrative hearing. Both parties called lay and 5 expert witnesses and developed a substantial record. 6 On December 2, 2008, the Hearing Examiner issued an order affirming the City’s decision 7 and denying Kane relief. [Decision of the Hearing Examiner, Dkt. #39 at 15]. The Examiner 8 concluded that Kane was barred by res judicata from contesting the denied amendments because 9 she had not appealed the original approved RUE in 2004. [Dkt. #39 at 25]. The Examiner noted 10 that res judicata would not apply if Kane could show a “substantial change” in the application 11 conditions. However, the Examiner found no substantial change that would affect Kane’s appeal, 12 particularly rejecting Kane’s argument that the existing driveway was unsafe. [Dkt. #39 at 25–26]. 13 14 b. Appeal to Kitsap County Superior Court On December 23, 2008, Kane petitioned the Kitsap County Superior Court for review 15 under the state Land Use Petition Act (LUPA) (Wash. Rev. Code § 63.70C). She argued that the 16 City misapplied the CAO to her property. The City responded that Kane’s LUPA petition is 17 procedurally barred because she failed to appeal the initial RUE in 2004. The court determined 18 that Kane’s petition could not be resolved by “the technical nuances of the CAO, [or] by the City’s 19 insistence that the RUE amendment process . . . is wholly insulated from judicial review.” 20 [Revised Memorandum Opinion, Dkt. #1 at 50]. The court determined that the dispute must be 21 resolved according to the provisions of the SMA rather than the GMA. [Dkt. #1 at 50]. 22 Two state court opinions clarified which statute governed land use regulations of a 23 property, such as Kane’s, that fell under both the GMA and SMA. After the City denied Kane’s 24 second amendment application but before the Hearing Examiner had ruled on Kane’s appeal, the 25 Washington Supreme Court decided Futurewise v. W. Wash. Growth Mgmt. Hearing Bd., 164 26 Wash.2d 242 (2008). Then, while Kane’s petition was pending before the Superior Court, the 27 Washington Court of Appeals handed down Kitsap Alliance of Prop. Owners v. Cent. Puget Sound 28 Growth Mgmt. Hearing Bd., 154 Wash. App. 190 (2009) (KAPO). ORDER - 5 1 In Futurewise, the Court’s narrow plurality opinion held that waterfront property was 2 governed only by the SMA. It cited the legislature’s finding that “critical areas within the 3 jurisdiction of the [SMA] shall be governed by the SMA.” Id. at 245. In KAPO, the appellate 4 court restated the narrowest plurality holding in Futurewise. It held that real property regulated 5 under the SMA is regulated only by the SMA. KAPO, 154 Wash. App. at 198. 6 The Superior Court requested supplemental briefing to decide what impact KAPO had on 7 the Kane matter. The City again argued that reaching the merits of Kane’s LUPA petition would 8 be impermissible because Kane did not appeal the original RUE. The City further argued that the 9 SMP incorporates the CAO by reference, rendering KAPO moot. Kane agreed with the City on 10 this point, arguing that the CAO and SMP cross-references suggest that “the protection of wetlands 11 is the same under either law.” [Dkt. #1 at 52]. 12 The court disagreed. It determined that, were a conflict to arise like it did here, the City’s 13 CAO would effectively trump the SMP. The court viewed the CAO as contradicting KAPO: “. . . 14 KAPO seems to dictate that it would be an erroneous application of law for the City’s CAO to 15 impose greater restrictions on Ms. Kane than those required by the SMP.” [Dkt. #1 at 52]. 16 The Superior Court found KAPO controlling. The court found that the Hearing Examiner 17 erred in applying the GMA rather than the SMA after the Supreme Court rendered its Futurewise 18 plurality opinion. It also found that the Examiner’s application of the GMA constituted a failure to 19 follow a prescribed legal process. The Superior Court vacated the Hearing Examiner’s prior order 20 and remanded the case, giving the City an opportunity to apply the SMA. The court specifically 21 did not revisit or reverse any of the Hearing Examiner’s findings and conclusions. [Dkt. #1 at 56]. 22 23 c. Action for Damages Plaintiff then filed this action for money damages in Kitsap County Superior Court, 24 disregarding the court’s remand order. The City removed the matter to Federal Court pursuant to 25 28 U.S.C. §§ 1441 and 1446. Plaintiff asserts the following claims: federal claims under 42 U.S.C. 26 § 1983 for violation of her Fourteenth Amendment rights; state claims under Wash. Rev. Code § 27 64.40 for acts of an agency that are arbitrary, capricious, unlawful, or exceed lawful authority; 28 common law tortious interference with business expectations; negligence, including negligent ORDER - 6 1 supervision of employees and negligent infliction of emotional distress; promissory estoppel; and a 2 partial taking. 3 4 The Defendant moves for summary judgment against Plaintiff on all claims and seeks attorneys’ fees, as the prevailing party, under Wash. Rev. Code § 64.40.020(2). DISCUSSION 5 6 7 1. Summary Judgment Standard Summary judgment is appropriate when, viewing the facts in the light most favorable to the 8 nonmoving party, there is no genuine issue of material fact which would preclude summary 9 judgment as a matter of law. Fed. R. Civ. P. 56(c). Once the moving party has satisfied its burden, 10 it is entitled to summary judgment if the non-moving party fails to present, by affidavits, 11 depositions, answers to interrogatories, or admissions on file, “specific facts showing that there is a 12 genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). In other words, 13 summary judgment should be granted where the nonmoving party fails to offer evidence from 14 which a reasonable fact finder could return a decision in its favor. Triton Energy Corp. v. Square 15 D Co., 68 F.3d 1216, 1220 (9th Cir. 1995). It is not the role of this Court “to scour the record in 16 search of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) 17 (quoting Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)). 18 19 20 2. Federal Law § 1983 Claims a. Substantive Due Process Claim Plaintiff asserts a § 1983 claim, arguing that the City’s property use restrictions violated her 21 substantive due process rights under the Fourteenth Amendment. She contends that a protectable 22 property interest was created by the issuance of the RUE and that any subsequent restrictions 23 (viewed by the City as code enforcement) violated that interest. The City argues that its actions do 24 not constitute “most egregious” official conduct required under the law. 25 To establish a substantive due process claim against the government for land use 26 restrictions, a plaintiff must show “egregious or arbitrary government conduct,” Cuyahoga Falls v. 27 Buckeye Cmty. Hope Found., 538 U.S. 188, 198 (2003), that is “clearly arbitrary and 28 unreasonable.” Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 395 (1926). Only “the most ORDER - 7 1 egregious official conduct” can be considered arbitrary in the “constitutional sense.” County of 2 Sacramento v. Lewis, 532 U.S. 833, 845–46 (1998). To support a claim, government action must 3 “lack any rational relationship to the public health, safety, or general welfare.” Crown Point v. Sun 4 Valley, 506 F.3d 851, 855–56 (9th Cir. 2007). 5 Plaintiff has failed to present any evidence that the City’s conduct meets this standard, even 6 viewed in the light most favorable to her. Where the City discovered non-conforming property 7 developments, Plaintiff had the opportunity to amend the RUE to account for them rather than be 8 subject to code enforcement. Such government conduct is manifestly reasonable and does not 9 constitute the egregious official conduct necessary to sustain Plaintiff’s claim. Defendant’s 10 Motion for Summary Judgment on Plaintiff’s substantive due process claim is GRANTED. 11 12 b. Procedural Due Process Claim Plaintiff asserts a § 1983 claim for violation of her Fourteenth Amendment procedural due 13 process rights. Plaintiff argues that the City revoked property rights it previously gave her without 14 offering her the chance to appeal under the municipal code. She argues that RUE enforcement 15 during her appeal constituted a violation of her due process rights. The City argues that Kane has 16 no right to a permit. It argues that Kane simply couches in due process language a desire to do 17 whatever she wants with her restricted parcel. Defendant argues this is not a constitutional issue. 18 To demonstrate a violation of her procedural due process rights, Plaintiff must show the 19 existence of an interest protected by the Constitution’s due process clause and an inadequacy of 20 available procedures to challenge the government’s actions. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 21 526 U.S. 40, 59 (1999). Plaintiff has offered no evidence that the property rights she claims 22 actually belonged to her. She fails to present evidence that the appellate procedures she pursued 23 were inadequate. The issue in her dispute was not about a deprivation of her property rights but 24 whether or not her development was in conformity with the RUE. The City was within its rights to 25 regulate her property use, and Kane was within hers to appeal. No procedural due process 26 violation exists. Defendant’s Motion for Summary Judgment on Plaintiff’s procedural due process 27 claim is GRANTED. 28 ORDER - 8 1 2 c. Equal Protection Claim Plaintiff asserts a § 1983 claim for violation of her Fourteenth Amendment equal protection 3 rights. Kane argues she was treated differently than other similarly situated parties who had been 4 granted residential use of their property that abutting the adjacent wetlands. Kane also argues that 5 neighboring vehicles were permitted to park on city property without threat of prosecution. She 6 notes that responses to her questions regarding the parking situation yielded the cryptic response 7 that “‘arrangements’ had been made” with her neighbors. [Dkt. #42 at 25]. The City argues that 8 there is no evidence regarding who the other individuals similarly situated are, what their situations 9 entailed, and how their cases differed from Kane. Without such evidence, the City argues Kane 10 11 cannot support an equal protection claim. If Plaintiff cannot show intentional discrimination, the claim fails. N. Pacifica, LLC v. City 12 of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). Additionally, if Plaintiff cannot show she has been 13 “intentionally treated differently from others similarly situated and that there is no rational basis 14 for the difference in treatment,” Willowbrook v. Olech, 528 U.S. 562, 564 (2000), her claim 15 similarly fails. 16 In this case, Plaintiff has provided no evidence of intentional discrimination and has failed 17 to present evidence of others similarly situated whose treatment differed. The City rightly points 18 out, echoing Justice Breyer (Olech, 528 U.S. at 565 (Breyer, J., concurring)), that Kane’s situation 19 is unique to her Property, her RUE, and her plan for developing that Property. Finding others who 20 meet the “similarly situated” requirement is not easy, and Plaintiff has failed to offer such 21 evidence. Defendant’s Motion for Summary Judgment on Plaintiff’s equal protection claim is 22 GRANTED. 23 24 3. State Law § 64.40 Claim Plaintiff seeks recovery under Wash. Rev. Code § 64.40 for arbitrary, capricious, or 25 unlawful regulatory actions by the City. Kane claims the City’s administrative decisions were 26 unlawful and exceeded the City’s authority, thereby depriving her of property rights to which she 27 was lawfully entitled. The City argues, on the other hand, that the regulatory actions challenged by 28 ORDER - 9 1 Plaintiff do not constitute “acts” under the meaning of the statute and therefore are not subject to 2 liability. 3 Section 64.40 allows plaintiffs to sue the government for actions “which are arbitrary, 4 capricious, unlawful, or exceed lawful authority” provided that such actions are unlawful or exceed 5 lawful authority. Wash. Rev. Code § 64.40.020(1). Relief is only available if “the final decision 6 of the agency was made with knowledge of its unlawfulness or that it was in excess of lawful 7 authority, or it should reasonably have been known to have been unlawful or in excess of lawful 8 authority.” Id. An agency “act” is “a final decision by an agency which places requirements, 9 limitations, or conditions upon the use of real property in excess of those allowed by applicable 10 11 regulations.” Wash. Rev. Code § 64.40.010(6). Plaintiff asserts that her damages action under § 64.40 contains inherent issues of fact 12 which must be resolved to determine whether the government’s actions meet the statutory 13 requirements for arbitrariness, capriciousness, or unlawfulness. She raises examples of unresolved 14 issues such as the City’s threat of pursuing civil code enforcement against what Kane characterizes 15 as legal uses of her property. Kane cites as issues of fact the requirement that she submit an RUE 16 amendment application and also cites denial of those applications. However, Defendant is correct 17 that these are not “acts” under the statute because they are not final determinations, nor were they 18 appealed. Though Plaintiff may cite situations in which she felt the City did not follow proper 19 procedures, she did not appeal or challenge them at the time. The questions she raises as issues of 20 fact cannot be catalogued as “acts” under the statute. 21 The City correctly identifies the Hearing Examiner’s final decision as the only “act” in this 22 case subject to § 64.40 liability. As designed, the statute grants relief only where an “act” is 23 appealed to conclusion. Brower v. Pierce County, 96 Wash. App. 559, 564 (1999). Viewing the 24 facts in the light most favorable to Plaintiff, there is simply nothing to show that the Hearing 25 Examiner acted arbitrarily, capriciously, or with knowing illegality. Furthermore, there is no fact 26 presented to show that the Hearing Examiner’s decision itself was unlawful or exceeded lawful 27 authority. The Superior Court found that the Hearing Examiner erred in applying the GMA rather 28 than SMA. However, Defendant is correct that her error was ultimately a lack of awareness of the ORDER - 10 1 Supreme Court’s non-binding plurality opinion in Futurewise. Notwithstanding that oversight, the 2 Superior Court did not revisit or reverse any of the Examiner’s findings of fact or conclusions of 3 law. The Examiner’s error does not satisfy the statute’s requirements of arbitrariness, 4 capriciousness, or unlawfulness.1 Defendant’s Motion for Summary Judgment on Plaintiff’s § 5 64.40 claim is GRANTED. 4. Tortious Interference with Business Expectations Claim 6 7 Plaintiff claims damages against the City for tortious interference with business 8 expectations. Kane cites as her valid business expectancy the construction and sale of a single 9 family residence on the Property. Plaintiff argues that delay and legal expenses resulting from the 10 City’s restriction of her property rights adversely impacted her ability to market and sell the 11 Property once developed. She claims the City’s actions made her unable to meet financing 12 obligations, forcing a sale of the Property at a loss. The City argues that Plaintiff cannot establish 13 a tortious interference claim, because the City exercised its legal interest in good faith. The City 14 claims its interference was justifiable. To establish a claim of tortious interference, a Plaintiff must show that a valid contract or 15 16 business expectancy exists, that Defendant had knowledge of it, that Defendant intentionally 17 interfered causing termination of the expectancy by an improper purpose or means, and must show 18 damages. Commodore v. Univ. Mech. Contractors, Inc., 120 Wash.2d 120, 136 (1992). “A valid 19 business expectancy includes any prospective contractual or business relationship that would be of 20 pecuniary value.” Newton Ins. Agency & Brokerage, Inc. v. Caledonian Ins. Grp., Inc., 114 Wash. 21 App. 151, 158 (2002). “Exercising in good faith one’s legal interests is not improper interference.” 22 Leingang v. Pierce Cnty. Med. Bureau, 131 Wash.2d 133, 157 (1997). A privilege to interfere 23 may be established “if the interferor’s conduct is deemed justifiable.” Cherberg v. Peoples Nat’l 24 Bank of Wash., 88 Wash.2d 595, 604–05 (1977). To determine whether conduct is justifiable, a 25 court will consider the nature of the interferor’s conduct, the character of the expectancy, the 26 27 1 28 It is worth comment that Plaintiff disregarded the Superior Court’s remand when it filed this action for damages. The Hearing Examiner has not had the opportunity to revise her decision in accordance with the Superior Court’s findings. This Court will not reward Plaintiff’s haste, since her grievances may well have been resolved on remand. ORDER - 11 1 relationship between the parties, the interest advanced by the interferor, and the social desirability 2 of protecting the expectancy or the interferor’s freedom of action. Id. 3 The City has the authority to regulate property development within the bounds of the law. 4 Its duties exist not only in relation to Kane’s property ownership. The City has a duty to the 5 interests of her neighbors in seeing that the City’s environmental regulations are upheld. In terms 6 of the City’s conduct, it offered to forgo code enforcement in response to developments that 7 arguably violated the RUE. It allowed Kane to file amendment proposals, most of which the City 8 approved. The nature of the expectancy is unclear. Viewing the facts in a light most favorable to 9 the Plaintiff, she did not make clear to the City whether her intention was to sell the home or 10 maintain it as a personal residence. Even so, the City’s relationship with Kane is balanced by its 11 relationship with her neighbors and other residents of Bainbridge Island. The City had a duty to 12 all, which it pursued via enforcement of land use regulations. The interest advanced by the City 13 was to respond to citizen complaints about Kane’s property development and reasonably enforce 14 its interpretation of the municipal code. It is manifestly certain that Kane’s interest in developing 15 her Property cannot outweigh the City’s interest in ensuring enforcement of its land use laws. The 16 City’s interference was justifiable. 17 Defendant had a right to interfere for the purposes of protecting a wetland area and 18 enforcing its own laws. Its interference did not constitute tortious behavior. The City’s Motion for 19 Summary Judgment on Plaintiff’s tortious interference claim is GRANTED. 20 21 5. Negligence Claim Plaintiff asserts a negligence claim against the City, arguing that it negligently 22 implemented its land use regulations. Kane argues the City erroneously advised her regarding its 23 authority to regulate her land use rights. She contends that the City had a special relationship with 24 her, owing a duty to provide guidance regarding the application of city code. She claims the City 25 failed that duty repeatedly. Defendant argues that the City is not liable for negligent permitting 26 and that no special relationship exists. Furthermore, the City argues that Plaintiff has failed to 27 identify any standard of care owed to applicants in a permitting process. 28 ORDER - 12 1 A duty of care may arise where a public official with a responsibility to provide accurate 2 information fails to correctly answer a plaintiff’s question when the plaintiff intended to benefit in 3 some way from the information. Taylor v. Stevens County, 111 Wash.2d 159, 171 (1988); see also 4 Rogers v. City of Toppenish, 23 Wash. App. 554 (1979) (holding that a special relationship existed 5 where a zoning administrator erroneously informed a property owner that his property was zoned 6 for apartments). The special relationship exception requires direct contact between the public 7 official and injured plaintiff, that an express assurance was given by the public official, and that 8 the plaintiff justifiably relied. Babcock v. Mason Cnty. Fire Dist. No. 6, 144 Wash.2d 774, 786 9 (2001). However, a government duty cannot arise from implied assurances. Id. at 789; see also 10 Vergeson v. Kitsap County, 145 Wash. App. 526, 538 (2008) (a government duty arises where a 11 direct inquiry made by an individual is met with incorrect information clearly set forth by the 12 government). 13 Plaintiff fails to identify specific instances of express assurances relied upon in dealing 14 with the City and its land use code. Even with respect to the RUE amendment process, Kane has 15 not offered evidence of an express assurance given by the City creating a special relationship. On 16 that ground, general negligence claims fail. Additionally, Defendant is correct that Plaintiff has 17 not identified a breach of any particular standard of care. That provides further grounds for 18 dismissal of general negligence claims. See, e.g., Gurno v. Town of La Connor, 65 Wash. App. 19 218, 228 (1992) (affirming directed verdict after plaintiff failed to present evidence of an 20 applicable standard of care and its breach). Defendant’s Motion for Summary Judgment on 21 Plaintiff’s negligence claim is GRANTED. 22 23 6. Negligent Supervision Claim It is unclear whether Plaintiff asserts a negligent supervision claim against the City. 24 Plaintiff’s Response to Defendant’s Motion for Summary Judgment [Dkt. #42] does not address 25 Defendant’s arguments supporting summary dismissal of this claim. To the extent that Plaintiff 26 intends to assert negligent supervision, that claim fails. 27 28 An employer is vicariously liable for acts of its employees that are within the scope of employment. See Rahmann v. State, 170 Wash.2d 810, 815 (2011). A cause of action for ORDER - 13 1 negligent supervision only arises when an employee acts outside the scope of employment. Briggs 2 v. Nova Servs., 135 Wash. App. 955, 966 (2006). 3 Plaintiff offers no evidence that any agent of the City was acting outside the scope of 4 employment during their interaction. Without such evidence, a negligent supervision claim fails. 5 Defendant’s Motion for Summary Judgment on Plaintiff’s negligent supervision claim is 6 GRANTED. 7 8 7. Negligent Infliction of Emotional Distress Claim Plaintiff seeks damages for negligent infliction of emotional distress. She claims the City’s 9 arbitrary and capricious actions—including denial, delay, stonewalling, and allowing agents to 10 execute municipal code without proper experience—caused her emotion distress. Kane claims 11 medical expenses resulting from this distress. The City argues that Kane does not meet the 12 necessary standard to establish a negligent infliction of emotional distress claim. 13 The tort of negligent infliction of emotional distress is a judicially-created, narrowly- 14 tailored cause of action allowing recovery for family members who witness the injury or death of a 15 loved one shortly after a physical accident. Hegel v. McMahon, 136 Wash.2d 122, 125–26 (1998); 16 Gain v. Carroll Mill Co., 114 Wash.2d 254, 261 (1990). The tort presumes a traumatic event, such 17 as witnessing a “crushed body, the bleeding, the cries of pain, and, in some cases, dying words 18 which are really a continuation of the event.” Colbert v. Moomba Sports, 163 Wash.2d 43, 55 19 (2008). Injuries must be manifested by objective symptoms. Id. at 50. 20 Plaintiff offers no evidence to support this claim. There was no physical accident, no 21 traumatic event. She has presented no evidence of a dead or injured loved one. Without such 22 evidence, her claim fails. Defendant’s Motion for Summary Judgment on Plaintiff’s negligent 23 infliction of emotional distress claim is GRANTED. 24 25 8. Promissory Estoppel Claim Plaintiff claims the City is liable on a theory of promissory estoppel for retroactively 26 retracting her property rights. Kane argues that she relied upon City officials’ representations and 27 promises to develop her Property and in pursuing the RUE amendment process. She maintains 28 that the City violated its promises by restricting her Property development and by denying several ORDER - 14 1 of her proposed RUE amendments. The City argues that Plaintiff is unable to offer specific 2 evidence of representations on which she relied and argues that, even if she could cite a specific 3 promise, there is no justifiable reliance. The City also maintains that there is no evidence of a 4 promise revoked or a change in position. 5 Promissory estoppel applies where a promise is made which the promisor should 6 reasonably expect to induce action or forbearance on the part of the promissee. Greaves v. Med. 7 Imaging Sys., Inc., 124 Wash.2d 389, 398 (1994). The promise must induce such action or 8 forbearance. Id. Promissory estoppel applies where injustice can be avoided only by enforcement 9 of the promise. Id. Courts are slow to apply estoppel principles to government entities when 10 acting in their official capacities. See, e.g., State v. Charlton, 71 Wash.2d 748 (1967) (evidence 11 must present unmistakable justification for imposition of the doctrine when a municipality has 12 acted in its governmental capacity); see also Bennett v. Grays Harbor County, 15 Wash.2d 331, 13 341 (1942) (estoppel must be clearly necessary to prevent an obvious injustice). No person is 14 entitled to rely on representations of law. Bennett, 15 Wash.2d at 341 (“the public . . . cannot be 15 estopped by unauthorized, illegal, or fraudulent acts or statements on the part of their officers and 16 agents . . . .”). 17 There is no evidence to support Kane’s argument that promissory estoppel applies to the 18 City’s regulation of her non-conforming property developments. There is no evidence of a 19 promise that her non-conforming developments would be acceptable under the RUE. 20 Additionally, she presents no evidence that any city official promised that her proposed 21 amendments would actually be accepted. Even if such a promise were made, the government 22 agent would not have been authorized to make it, and Kane would not have been entitled to rely on 23 it as a representation of law. There is no evidence here of a specific promise, let alone injustice 24 requiring enforcement of one. For these reasons, Defendant’s Motion for Summary Judgment on 25 Plaintiff’s promissory estoppel claim is GRANTED. 26 9. Partial Taking Claim 27 Plaintiff asserts a claim against the City for a temporary taking of her Property by land use 28 regulation. Kane argues that she was denied reasonable use of her Property from the time the City ORDER - 15 1 threatened to pursue code enforcement for her non-conforming developments. She argues that a 2 temporary taking resulted in the need to sell before the Property was fully developed. Defendant 3 counters that the City’s regulations were not so severe as to cause a taking. Arguing that no total 4 taking occurred, the City contends that the Kane Property was not devalued as a result of City 5 action, but rather increased in value. The City argues that a profitable use could be made of the 6 parcel, and that Plaintiff’s taking claim therefore fails. 7 This Court’s threshold inquiry is whether or not the City’s land use regulations denied 8 Kane a “fundamental attribute of ownership.” Guimont v. Clarke, 121 Wash.2d 586, 602 (1993). 9 If Plaintiff fails to show a per se taking, the analysis shifts to determine whether the regulation is 10 intended to safeguard the public interest, health, safety, environment, or fiscal integrity of an area, 11 or whether the regulation seeks to provide a public benefit rather than prevent a public harm. Id. at 12 603. If the regulation seeks to safeguard a public interest or confer a public benefit, a court will 13 then consider whether the regulation advances a legitimate state interest. If so, the court will 14 balance the state interest against the adverse economic impact on the property owner. Id. Here, 15 the Penn Central factors must be considered: first, the economic impact on the property; second, 16 the interference with investment-backed expectations; third, the character of the government 17 action. Penn. Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978). Under federal and 18 state law, a land use regulation which affords an economic use—even after diminishing value—is 19 not considered a taking. See, e.g., Euclid, 272 U.S. at 389–90; see also Carlson v. City of 20 Bellevue, 73 Wash.2d 41 (1986). 21 There was no physical taking of the Kane Property. The issue, then, is whether, the land 22 use regulations themselves constitute an effective taking. First, the City code did not deny Kane a 23 fundamental attribute of ownership. She retained the right to possess, to exclude, to dispose, and 24 to make some pecuniary use of her Property. That is evidenced by her development and lease of 25 the Property. Because no per se taking exists here, this analysis will proceed to the second level of 26 inquiry, following Guimont. The land use regulations at issue here are by their very nature 27 designed to protect the environment. They serve a legitimate state interest in ensuring the natural 28 surroundings remain healthy and that important ecosystems are not destroyed. The state’s passage ORDER - 16 1 of numerous environmental protection laws reinforces the notion that a legitimate state interest is 2 at play. Therefore, the question becomes whether the regulations meet the Penn Central standard. 3 When Kane purchased her Property it was completely encumbered by a wetland buffer, 4 foreclosing any development. The administrative decisions Kane challenges here are subsequent 5 issues arising from an initial RUE. Without that exception, Kane would have been prohibited from 6 building on the Property. However, the exception granted by the City allowed Kane to develop her 7 parcel. The ensuing conflict centered on whether or not property development had exceeded the 8 bounds of the RUE. Plaintiff wants to claim adverse economic impact not only by the regulations 9 but also by the delay resulting from the dispute over her non-conforming uses. That posture is 10 inappropriate. The land use regulations themselves imposed no great loss of property value. If 11 this protracted struggle led to an economic loss, it is an unfortunate result which nevertheless has 12 no bearing on this Court’s takings analysis. Similarly, the environmental regulations’ interference 13 with investment-backed expectations is negligible. Finally, the character of the City’s action is in 14 conformity with any government seeking to ensure its code is enforced or accommodated. Given 15 that the City permitted an exception to the prior use restrictions, and given that Kane had the 16 opportunity to amend the RUE, the City’s action cannot be deemed over-burdensome. 17 Even after the regulations were imposed and the dispute carried forward, Kane was able to 18 rent her Property, then sell it. Whether or not she took a loss does not alter the fact that she was 19 able to make financial use of a parcel that would otherwise have been undevelopable. Even where 20 an owner faces an economic loss, it is not enough to sustain a taking claim. Defendant’s Motion 21 for Summary Judgment on Plaintiff’s taking claim is GRANTED. 22 23 10. Attorneys’ Fees The City seeks fees as the prevailing party on Plaintiff’s § 64.40 claim. Wash. Rev. Code § 24 64.40.020(2) provides that “the prevailing party in an action brought pursuant to this chapter may 25 be entitled to reasonable costs and attorney’s fees.” (Emphasis added). 26 The statute provides no guidance as to when fees may be awarded and when they may not 27 be. Nor do any reported cases interpreting the statute provide any such guidance. Perhaps 28 recognizing that the statute could be read to allow fees (only) to a prevailing plaintiff, the City ORDER - 17 1 cites Callfas v. Dep’t of Constr. & Land Use, 129 Wash. App. 579 (2005) for the proposition that a 2 prevailing defendant may be awarded fees. In Callfas, the Washington Court of Appeals awarded 3 fees to the prevailing defendant, stating without analysis: “Because the City is the prevailing party 4 in this action, we grant its request for attorney’s fees pursuant to RCW 64.40.020(2).” Id. at 598. 5 While the Plaintiff’s claims are dismissed and are without merit, the City does not argue 6 and this Court does not find that they are frivolous. The Court appears to have unfettered 7 discretion in the matter under the statute, but there is no compelling reason to award fees in this 8 case. The court will not award fees under this statute. CONCLUSION 9 10 Defendant’s Motion for Summary judgment on all of Plaintiff’s claims [Dkt. #30] is 11 GRANTED. Defendant’s request for legal fees pursuant to Wash. Rev. Code § 64.40.020(2) is 12 DENIED. The City’s alternate Motion for Partial Summary Judgment [Dkt. #56] and the Parties’ 13 stipulated Motion to Continue the Trial Date [Dkt. #67] are DENIED as moot. The matter is 14 terminated. 15 16 IT IS SO ORDERED. 17 Dated this 2nd day of December, 2011. 18 19 20 21 22 A RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 ORDER - 18
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