Washington State Court Decisions

Current - November 1993

• Washington State Supreme and Appellate Court Decisions
• Washington State Court Decisions published within the last 90 days

Washington State Court Decisions Affecting Cities, Towns and Counties

The following decisions are in reverse chronological order: (This is not a complete list of all new court decisions that affect cities, towns and counties in the State of Washington, but a selection of highlights.)

1997

Phillips v. King County, 87 Wn.App 468 (1997) -- This case involved a claim of inverse condemnation and negligence against a county as a result of its approval of a private development project. Plaintiffs sued King County and a developer seeking damages for surface water runoff from a subdivision adjacent to their property. The drainage system consisted of a storm water detention facility and a dispersal trench and was installed in a county right-of-way adjacent to plaintiffs' property. After final subdivision approval and project completion the county took over the facility and maintained it. The court found that "By exercising its police power to regulate the use of the . . . development, the County effectively appropriated, initially for the benefit of Autumn Wind, a flowage easement over Phillips' property; the county subsequently assumed ownership, maintenance and control of the drainage system and thus appropriated the flowage easement to public use."

Greater Harbor 2000 v. Port of Seattle, 132 Wn.2d 267 (1997) -- In this street vacation case, the Seattle City Council agreed to preliminary approval of a vacation petition. The preliminary approval was challenged, but the court determined that a decision to vacate a street cannot be challenged until the city council adopts an ordinance granting final approval of the petition.

Citizens of Mount Vernon v. City of Mount Vernon, 133 Wn. 2d 861 (December 1997) --In this case a local citizens' group challenged the city's approval of a planned unit development on the grounds that approval of a rezone and the PUD did not comply with the city's comprehensive plan or the underlying zoning. The court construed RCW 36.70B.030(1) to mean that although specific project decisions must conform to the comprehensive plan, "conflicts between a general comprehensive plan and a specific zoning code" must be resolved int he zoning code's favor. The court also held that because the legal effect of approving a PUD is rezoning, PUD approval must be accompanied by a showing of significant changed circumstances.

Kalina v. Fletcher, 522 U.S. 118 (12/10/97) -- The U.S. Supreme Court held that a King County prosecutor was not entitled to prosecutorial immunity against a 42 U.S.C. Section 1983 action arising out of a wrongful arrest in which the prosecutor personally certified the truth of the alleged facts in the arrest warrant.

Okanogan Wilderness League Inc. v. Town of Twisp, 133 Wn. 2d 769 (Dec. 1997) -- In this case the court determined that a municipality can abandon a water right through years of nonuse. This case may mean that the special considerations provided by the legislature for municipal water rights have been limited by Washington courts and the Pollution Control Hearings Board to protecting against claims of relinquishment after 1967.

Wilson v. City of Monroe, 88 Wn. App. 113 (1997) -- Union employees may bring a civil lawsuit on a public policy wrongful discharge claim. Although federal law generally requires union employees to pursue discharge claims exclusively through the grievance and arbitration procedures in their union contracts, there is an exception when the rights asserted by the employee are "non-negotiable, substantive rights," such as those found in public policy, which do not depend upon interpretation of a collective bargaining agreement.

Smith v. Spokane County, 89 Wn.App 340 (November, 1997) -- This was a class action lawsuit against Spokane county and the City of Spokane challenging the fees imposed on water and sewer customers within an aquifer protection area. The court determined that the charge was a lawful regulatory fee imposed under the authority of RCW 36.36 and general police powers conferred by Const. art. XI, Section 11.

Christianson v. Snohomish Health, 133 Wn.2d 647 (November 1997) -- In this case the court was asked to review Snohomish County health district's denial of a construction permit to increase the size of a cabin. The permit was denied because the onsite septic system was inadequate to handle any additional use. The Court held that the health district's decision was supported by substantial evidence and found that a local ordinance requiring full compliance with state mandated sewage disposal standards as a precondition of granting a building permit to make structural additions was not unduly oppressive.

Clean v. City of Spokane, 133 Wn.2d 455 (November 1997) -- This case involved a challenge to the City's decision to provide public financing for renovation and expansion of a privately owned parking garage in the downtown area of the city. The court held that the financing plan and the ordinance under which it was approved satisfied statutory and constitutional requirements, that the public development authority was properly constituted, and that a financial report prepared for the city was exempt from public disclosure. The case deals with a variety of issues of interest to municipal corporations, including gift of credit and municipal authority issues.

Lindberg v. Kitsap County, 133 Wn.2d 729 (November 1997) -- In this public disclosure case, private parties requested a copy of copyrighted site and drainage plans that had been filed with the county in support of a developer's application for plat approval of residential developments. Although the county allowed the documents to be viewed by the parties requesting the documents, they refused to make copies of copyrighted material. The Supreme Court decided that the intended use of the documents -- to prepare for public hearings and appeals on the development proposals -- constituted reasonable fair uses of the copyrighted works. Note also that the Court held that in determining the penalty amount to be awarded under RCW 42.17.340(4) for a public agency's unlawful refusal to fulfill a public disclosure request, a court may consider the agency's good or bad faith in refusing the request.

Newman v. King County, 133 Wn.2d 565 (November 1997) -- In this 5-4 decision, the State Supreme Court concluded that under RCW 42.17.310(1)(d), the entire contents of an active and open criminal investigation file are categorically exempt from public disclosure regardless of the nature of the contents of the file.

Noble Manor v. Pierce County, 133 Wn.2d 269 (October 1997). A developer's submission to the county of a completed short plat application vested in the developer the right to divide and develop the property in the manner disclosed in the short plat application under the land use and zoning laws in effect on the date the application was filed.

City of Seattle v. State of Washington, 87 Wn. App. 715 (September 1997). Asked to decide whether the electrical contractor licensing statute, RCW 19.28.120, encompasses municipalities, the court held that it does. Consequently, a city must obtain an electrical contractor license before engaging in nonutility electrical contracting.

Civil Service Commission v. Kelso, 87 Wn.App 907 (September 1997). The Court of Appeals ruled that a final order rendered by the city's civil service commission on a claim filed by a municipal employee precluded a subsequent arbitration award on an identical claim against the same defendant made by the employee pursuant to the grievance procedure of the collective bargaining agreement governing the employee's work unit.

Fire Protection v. Kitsap County, 87 Wn. App. 753 (September 1997). A boundary review board is not a state agency and is not subject to the state Administrative Procedure Act rules governing judicial review of agency action.

King County Water District No. 90 v. City of Renton, 88 Wn.App. 214 (9/29/97). The Court of Appeals ruled that RCW 28A.335.110 applies to all classifications of cities and only authorizes a school district to sign an annexation petition if the school district's property constitutes all of the property to be annexed. There are additional holdings dealing with indispensable parties and jurisdiction related to appealing annexation decisions.

San Juan Fidalgo Holding Company v. Skagit County, 87 Wn. App. 703 (September 1997). This case involved the late filing of a land use petition to the county auditor's office (approximately 20 minutes after the office had closed on the last day of the 21-day service period for commencing land use appeals under the Land Use Petition Act.) The court determined that "normal office hours" are the hours that the auditor's office is open to the public, not the hours that a deputy might be working in the office outside those hours. Consequently, service of the summons and complaint on the county's deputy auditor approximately 20 minutes after the auditor's office had closed on the last day which service could be validly effected was untimely and did not constitute substantial compliance with the statutory service requirements.

Schneider Homes v. City of Kent, 87 Wn.App. 774 (September 1997). The vesting doctrine, as codified in RCW 58.17.033, vests the right to develop land, not merely to divide it, under the land use regulations in effect at the time a preliminary or short plat application is submitted. When a proposed subdivision is inextricably linked with a planned unit development and cannot be developed without a PUD permit, the submission of a completed application for preliminary plat approval vests the right to have both the plat application and the PUD permit application considered under the land use statutes and ordinances in effect on the submission date. A vested right to develop a parcel of land under existing land use regulations survives a city's subsequent annexation of the land.

Strauss v. City of Sedro-Woolley, 88 Wn. App. 376 (September 1997) -- In this case the owners of a mobile home park sought to convert the park into condominiums without complying with state and local binding site plan regulations. Division One of the Court of Appeals held that property may not be subdivided to create legal lots of record for condominiums unless the property is subdivided pursuant to RCW 58.17.033 and RCW 58.17.060 or a binding site plan is filed.

Crosby v. Spokane County, 87 Wn. App. 247 (August 1997). This case involved review of an adverse land use decision and is a reminder that a writ of review may not be granted under RCW 7.16.040 if the affidavit or verification required by the statute is not filed within 90 days after filing the writ application. If the applicant fails to comply with this requirement, the court does not have jurisdiction to grant the writ.

Galvin v. Employment Sec. Dep't, 87 Wn. App. 634 (August 1997). The court examined the question of when an employee's attendance problems constitute misconduct which disqualifies the individual from unemployment compensation. In this case, an employee of the City of Seattle Parks and Recreation Department was discharged for chronic attendance problems. On review of an administrative decision that she was ineligible for unemployment compensation benefits, the Court of Appeals held that the defendant's failure to obtain her supervisor's approval before taking leave from work constituted misconduct that rendered her ineligible for unemployment compensation benefits.

Phillips v. King County, 87 Wn. App. 468 (August 1997). In this case the plaintiffs claimed that the county had damaged them by negligently approving a drainage system for their subdivision without requiring preparation of an environmental impact statement. The Court held that under the public duty doctrine, a government agency is not liable for negligent conduct unless the duty the agency is alleged to have breached was owed to the plaintiff individually and not to the public in general; and that a government agency's "active participation" in private conduct the agency regulates does not constitute an exception to the doctrine. The Court also held that an inverse condemnation action may be maintained against the county on the basis of damage caused by a use made of neighboring property that is regulated and controlled by a government agency in the exercise of its police powers, and also for damage to property caused by an increased flow of surface water resulting from a privately constructed storm water drainage system approved by the agency and dedicated to the county upon its completion. (The inverse condemnation issues were remanded to the trial court for further proceedings.)

Ravenscroft v. Water Power Co., 87 Wn. App. 402 (August 1997). In this case, the Court of Appeals examined governmental liability under the recreational use statute and the public duty doctrine, for boating injuries incurred when a speedboat hit a submerged tree stump on a lake created by a Washington Water Power dam and regulated for safety by Spokane County. The court held that the public duty doctrine immunizes a governmental entity from liability for breach of a duty that is owed to the public in general; and that the legal status of a recreational user of a state recreational area and the scope of the government's liability for injuries to the user associated with such use are defined by the recreational use statute (RCW 4.24.210).

State v. Rife, State v. Rife, 133 Wn.2d 140 (8/28/97) decided by the state supreme court. This decision holds that an officer temporarily detaining a person for a non-criminal traffic infraction has authority to do a driver's license record check but absent probable cause cannot detain an individual for a longer period of time in order to do a computer check to see if there are outstanding warrants. The state legislature responded to this case by passing a bill in September, 1997 specifically authorizing law enforcement officers to do warrant checks whenever motorists are stopped for routine traffic infractions.

Swinomish Indian Tribal Community v. Island County, 87 Wn. App 552 (August 1997). Counties are obligated under the Shoreline Management Act to establish procedures protecting buildings, sites, and areas having historic, cultural, educational, or scientific value. Island County violated the statute and its own Shoreline Management Master Plan by issuing sewer repair permits without adopting any procedures protecting known Indian archaeological sites in the area. Implementing protective procedures is especially critical where, in an effort to keep the sites from being looted, only the County knows where the sites are located.

Lester v. Town of Winthrop, 87 Wn. App. 17 (July 1997). This decision concerns a suit by a property developer alleging that a local government's processing of their permit constituted a deprivation of their federal civil rights because of a delay in deleting an unlawful easement condition. The suit also claimed the town was negligent in issuance of the permit and in hiring the permit administrator. The town prevailed, and there is some good language concerning the standard for a substantive due process claim, and on the issue of the public duty doctrine. The final permit for the building was issued less than 75 days after the application was complete, but the delay meant that construction could not begin until the following spring.

Schreiner Farms, Inc. v. Smitch, 87 Wn. App. 27 (July, 1997). Though this case involves a suit against several state governmental defendants, it deals with a "takings" issue and applies the ruling in the Guimont case to some novel facts. Those dealing with "takings" issues should at least review the case.

ACLU v. Blaine School District No. 503, 86 Wn.App. 688 (June 1997). This decision interprets RCW 42.17.270, the public records disclosure provision which states, in part, that "Agencies shall honor requests received by mail for identifiable public records unless exempted by provisions of this chapter." The court concluded that the statute requires public entities to mail responses to public records requests, as long as the records are identifiable and not exempt. The Blaine School District will be paying fines and attorney fees to the ACLU over this attempt to take a narrow reading of the public records disclosure statutes.

Bale v. City of Auburn, 87 Wn. App. 205, (June 1997) decided by Division One of the Court of Appeals 6/30/97, order granting motion to publish entered 8/4/97. This opinion is a good one for cities and towns in Washington. The case holds that a city may cure its procedural defect of failing to publish an ordinance by subsequently reenacting and republishing the ordinance. The decision was crucial in this case because the Auburn ordinance being attacked was an ordinance establishing a Business Improvement Area. The suit sought return of special assessments levied and paid pursuant to the original ordinance which had not been properly published.

Greater Harbor 2000 v. Seattle, 132 Wn.2d 267 (June, 1997). This case discusses the "taxpayer standing" of a non-abutting property owner to challenge a city decision to vacate streets. Though the decision rests on a determination that suit against the city was premature, the discussion of taxpayer standing to challenge official actions of a city should be reviewed (see pp. 286-87).

King County v. Taxpayers, 133 Wn.2d 584 (June 1997) -- King County sought a declaration confirming the validity of a bond sale authorized by the county's legislative authority to finance the construction of a major league baseball stadium. After review, the State Supreme Court held that financing by means of public indebtedness did not constitute an unconstitutional gift of public money to a private organization, that the taxes to pay for the bonds were validly enacted and properly collected, that the county's delegation of decision-making authority to a public facilities district to oversee construction and operation was lawful and proper.

Pasco Police Officer's Association v. City of Pasco, 132 Wn.2d 450 (June 1997) --Collective Bargaining. This case involved a dispute between the city and the police officers' union over whether a management rights proposal addressing the terms and conditions of employment was a mandatory subject of collective bargaining which could be negotiated to impasse and submitted to interest arbitration. The state supreme court determined that the management rights proposal was a mandatory subject of bargaining.

State v. J.D., 86 Wn. App. 501 (June 1997). This is the Bellingham curfew case. If you are advising a city on the constitutionality of such an ordinance, you must read this case. There are varying interpretations of this case and how an ordinance can be drafted which is consistent with the court's holding. The issue of curfew ordinances was a topic of a paper presented at the Fall 1997 WSAMA conference.

Daily Journal v. Daily Journal, 86 Wn. App. 324 (May 1997). The court interpreted RCW 65.16.020, the "official" or "legal" newspaper statute, clarifying the qualifications for a newspaper in which statutorily required notices are published. If your jurisdiction is changing it's official newspaper, review this case if you are considering designation of any newspaper which appeals to a specific segment of the population. The court held that the Washington Journal did not meet the requirements of RCW 65.16.020.

Hubbard v. Dept. of Ecology, 86 Wn. App. 119 (May 1997). This case deals with the priority and superiority of surface water rights over groundwater rights. Once a minimum instream flow has been established for a river or stream, any permit issued for withdrawals of groundwater that has a "significant hydraulic continuity" with the river or stream may be restricted in a way that protects the minimum instream flow.

Ino Ino, Inc. v. Bellevue, 132 Wn.2d. 103 (May 1997). This long awaited ruling upheld the Bellevue adult entertainment ordinance which requires a four foot separation rule for "couch dances" and an eight foot distance rule for stage performed nude dances. The court also upheld the minimum lighting requirements. The court did, however, strike down a provision which required a fourteen day waiting period for issuance of a license. The majority opinion is over forty pages long, and there is a lengthy dissent by Justice Sanders. If you are drafting or amending an adult entertainment ordinance, this is a must read.

Smoke v. City of Seattle, 132 Wn.2d 214 (May 1997). This case applies and interprets RCW 64.40.020 and .030, and resulted in a holding against the City of Seattle on a 42 U.S.C. 1983 substantive due process claim. The court held that a letter sent by a City of Seattle DCLU land use specialist was a final decision of the city and satisfied the "exhaustion of administrative remedies" provision in RCW 64.40.030 even though the letter outlined an administrative process to challenge the DCLU determination.

Ward v. County Commissioners, 86 Wn. App. 266 (May 1997). The Court of Appeals reviewed RCW 36.70C.060 and held that standing to bring a land use petition requires that the appellant first exhaust all administrative remedies. The court applied the well established doctrine of exhaustion of administrative remedies, finding that there was nothing in the legislative record to indicate that there was an intent to abrogate those common law principles in regard to LUPA proceedings.

Hayes v. City of Seattle, 131 Wn.2d 706 (April 1997). Seattle lost on this land use case. The court held that a judgment rendered in an action for judicial review of the validity of an agency decision incident to an application for a building permit does not preclude a later action for damages against the agency by the applicant under RCW 64.40.020 based on the agency's decision being arbitrary, capricious, or unlawful. The city conditioned approval of a project for a mixed-use apartment building on reducing the length of the multifamily building, but the city council's findings of fact to justify the mitigation were, according to the trial court and appellate court, merely conclusory. Though the city eventually issued the permit as originally applied for, the court allowed this subsequent suit for damagesandd attorney fees.

City of Kennewick v. Benton County, 131 Wn.2d 768 (April 1997). This case holds that property jointly owned by a local government entity and a private party is exempt from property taxation under Article VII, Section 1 of the state constitution and RCW 84.36.010 only to the extent of the government's beneficial interest in the property and the degree that a public purpose is served by the ownership structure of the property.

Moore v. Wayman, 85 Wn. App. 710 (April 1997). This suit against Pierce County (and others, initially) deals with the public duty doctrine and the liability of a local government for negligent building code inspection. The court held that the county's inspection of the residence for building code compliance constituted a nonproprietary governmental function and that the county did not have a special relationship with the subsequent purchasers that would subject the county to liability for negligent inspection.

Rental Owners v. Thurston County, 85 Wn.App. 171 (February 1997). In this challenge to a county's regulations and fees imposed pursuant to its regulation of sceptic systems, the court upheld the county Board of Health regulations and fees, reiterating the three factors (outlined in the 1996 Covell case) to be considered in determining whether a charge imposed by a governmental entity is a tax or a regulatory fee. There is good language concerning the broad scope of local government police powers and challenges to those powers.

Amren v. City of Kalama, 131 Wn.2d 25 (January 1997). This case deals with a public disclosure request for a report addressing complaints made about the city's chief of police. The court held that RCW 42.17.295 (which exempts from disclosure certain documents related to allegations of employee misconduct) does not apply to local governments, only to state agencies. The court decision also deals with damage awards under RCW 42.17.340(4) in a way which should make cities pause to carefully review all denials of disclosure.

Munns v. Martin, 131 Wn.2d 192 (January, 1997). This case involving a Walla Walla ordinance provides an additional warning to cities concerning the application of landmarks preservation regulation to church structures. There is a detailed analysis of the "free exercise of religion" constitutional provision. Along with the three First Covenant decisions (1990, 1991 & 1992) and the more recent First United Methodist Church decision (1996), be forewarned that these are troubled waters.

Ord v. Kitsap County, 84 Wn.App 602 (January 1997). The court held that RCW 76.09.060(3)(b)(i) of the Forest Practices Act of 1974, which authorizes cities and counties to impose six-year building permit moratoriums on forest land for which a clear cut permit has been issued, is self-executing: local enabling legislation is not a prerequisite to a local government's imposition of a six-year moratorium under the statute.

White v. State, 131 Wn.2d I (January 1997). Though this case involves an employee of a state-run nursing home, the rulings are applicable to local governments. The court held that a public employee's claim of retaliation in employment based on the exercise of a 1st Amendment right is not actionable unless the employee establishes that the speech or conduct (1) is protected by the 1st Amendment and (2) was a substantial or motivating factor in the adverse employment decision. The court also held that a public employee's employment-related speech is not protected by the 1st Amendment unless (1) the speech involves a matter of public concern and (2) the employee's free speech interest outweighs the employer's interest in efficiently providing the public services it performs through its employees.

1996

Rabon v. City of Seattle, 84 Wn.App. 296 (1996). The court held that the Seattle dangerous dog ordinance, which was more restrictive than the state statutes (Chapter 16.08 RCW), did not conflict with the state statutes. The court quoted from Lenci v. Seattle (1964): "The fact that a city charter provision or ordinance enlarges upon the provisions of a statute by requiring more than the statute requires, does not create a conflict unless the statute expressly limits the requirements." There is additional wording which confirms the authority of a city to enact more restrictive regulations as long as the regulation is not expressly prohibited or conflicting with the state enactment on the subject.

Clean v. Slate, 130 Wn.2d 782 (Dec. 1996). This opinion, running in excess of 75 pages, examines in detail the "gift clause" of the state constitution and the extent to which a governmental entity can contribute money to a private cause. The case upholds a trial court rejection of a challenge to the legislation passed by the state legislature in special session to provide a financing package for construction of a new professional baseball stadium in King County. The case helps to clarify what is a proper governmental purpose, the broad scope of "police powers," and the use of an emergency clause.

The Children's Alliance v. City of Bellevue, 950 F. Supp. 1496 (1997). On January 8, 1997, the federal district court held that Bellevue's Ordinance No. 4861 violates both the Fair Housing Act and the Washington Law Against Discrimination. Judge Zilly ruled that the ordinance, which classified group care facilities into two separate classifications, violates 42 U.S.C. 3604 due to its disparate treatment, and entered summary judgment holding that disparate treatment was evident from the wording of the ordinance. Any city which has an ordinance making it more difficult to site group homes if they have "problem" residents should review this case. The court also found invalid the occupancy limits triggered by the number of non-related individuals residing together.

Dick Enterprises, Inc. v. King County, 83 Wn. App. 566 (1996). A bidder on a public works project sought to enjoin the performance of the contract by the winning bidder, alleging that the winning bid did not meet set-aside goals for minority and women business enterprises. The court of appeals held that injunctive relief was not available to the disappointed bidder on the basis of a violation of the competitive bidding process after the contract had been signed. The court pointed out that after the contract was signed with the other party it was too late to bring an action to enjoin the creation of the contract. The court also held that the plaintiff could not argue the case as a taxpayer suit because that cause of action was not stated in the complaint, nor did the plaintiff allege facts sufficient to support standing for a taxpayer suit.

Vintage Construction Co. v. Bothell, 83 Wn. App. 605 (1996). A land developer sought to recover fees paid to a city in lieu of dedication of land that were imposed on the developer as a condition of subdivision approval. The court held that the city's failure to determine, in a site-specific manner, the value of the land the developer could have been required to dedicate rendered the fees in lieu of dedication invalid. This case provides a clarification of two earlier cases concerning impact fees: Henderson Homes v. Bothell, 124 Wn.2d 240, 877 P.2d 176 (1994) and Trimen Development Co. V. King County, 124 Wn.2d 261, 877 P.2d 187 (1994).

Marquis v. Spokane, 130 Wn.2d 97 (1996). In this discrimination case involving a golf professional hired as an independent contractor to run one of the city's golf courses, the state supreme court ruled that an independent contractor may bring an action for discrimination in the making or performance of a contract for personal services where the alleged discrimination is based on sex, race, creed, color, national origin or disability.

Foster v. King County, 83 Wn.App. 339 (1996). In this SEPA case the court reviewed the appeal options and timing for appeal of an administrative threshold determination that an EIS was required. The project under consideration was a water ski pond, with alleged irrigation purposes. The court determined that the project was not categorically exempt because it had a mixture of exempt and non-exempt activities, and the court denied the request for a constitutional writ, which can only be granted when a petitioner's allegations, if true, clearly demonstrate that the hearing officer's actions were arbitrary, capricious or contrary to law.

Kiewit Construction Group v. Clark County, 83 Wn.App. 133 (1996). In this SEPA case the appellate court upheld the superior court ruling, which had upheld the Board of County Commissioners' decision in regard to SEPA review of a proposed asphalt plant at a quarry site along the Columbia River. The Board had ruled that the EIS was inadequate, because it failed to adequately disclose and discuss traffic concerns, particularly safety hazards posed by truck traffic from the asphalt plant which would cross a proposed bicycle trail and increase truck traffic on a one mile stretch of a designated "scenic route." The Board ordered either preparation of a supplemental EIS, or construction of access ramps so the trucks could directly access a nearby state highway, thus avoiding the "scenic route" and the crossing of the proposed bicycle trail. The court rejected a Dolan challenge, ruling that the access ramp alternative was merely an alternative, not a requirement. The court noted that the board had reasonably concluded that further information was needed before deciding if additional traffic mitigation was necessary.

Schroeder v. Bellevue, 83 Wn.App. 188 (1996). The appellate court upheld a trial court decision which reversed a hearing examiner's decision that a proposed residential addition did not meet the city's code requirements concerning "minor structural element." The court reviewed the city's definition of "minor structural element" and noted that because the city code allowed "bay windows" to extend into the required setback, and because the city did not define "bay window," any interpretation which restricted the size of a bay window was an unarticulated standard, and it was not reasonable to expect architects and other professionals to comply with unarticulated standards.

Lindberg v. Kitsap County, 82 Wn. App. 566 (decided July 12, 1996). We now finally have a case which discusses the right of the public to inspect and copy site, drainage and building plans submitted by a project applicant to a local governmental body (in this case, Kitsap County). The court reviews the "fair use" exception and federal copyright protection, stating:

• To determine whether the fair use doctrine applies, a court evaluates the nature of the copyrighted work, the purpose and character of the use, the amount and substantiality of the work used, and the use's effect upon the potential market for the work. It "is an equitable rule of reason...and each case raising the question must be decided on its own facts." Key Maps, Inc. V.J.J. Pruitt, 470 F. Supp. 33, 37 (S.D. Tex. 1978).

Ruling in favor of the individuals who requested to copy the drainage and site plans, the court also remanded the case to the trial court for review of the damages and attorney fees awarded to the successful plaintiffs, implying that because access was denied to a number of specific records, the penalties should not be combined.

Methodist Church v. Hearing Examiner, 129 Wn.2d 238 (May, 1996). In this crucial landmarks preservation case the state supreme court held that a governmental regulation burdens a church's free exercise of religion if the regulation results in a significant administrative or financial burden to the church. A government's designation of a church building as a landmark, whereby no alterations or significant changes can be made to the church building without governmental approval, is invalid under the free exercise of religion clause of the First Amendment and Constitution article I, chapter 11, which protects religious freedom, if the landmark designation results in sever administrative or financial burdens to the church.

Christianson v. Snohomish Health District, 82 Wn.App. 284 (May, 1996). This case involves a county health district, but it contains a good discussion of the standard for determining when a land use regulation violates a property owner's right of substantive due process, and a discussion of the factors to consider when determining whether a land use regulation is unduly oppressive. In this case, the court upheld a health district's denial of construction clearance for expansion of a lake-side cabin due to inadequacies of the existing septic system.

Recall of Pearsall-Stipek, 129 Wn.2d 399 (June 1996). This case holds that the statutes mandating the form of recall petitions and providing for judicial review of the sufficiency of charges in a recall petition are valid exercises of legislative authority. The case also upholds the constitutionality of RCW 4.96.041(3), which gives cities the option to pay the expenses of city officials in defending against recall charges. Finally, the case has helpful language requiring that recall charges be backed up by sufficiently detailed supporting facts, not purely conjectural statements.

Noble Manor v. Pierce County, 81 Wn.App. 141 (1996). This "vested rights" case holds that developers of land are entitled to have their land development proposals processed under the regulations in effect at the time a fully completed building permit or land division application is submitted, regardless of subsequent changes in zoning or other land use regulations. Pierce County passed an interim zoning ordinance after the developer had submitted a completed short plat application. Pursuant to that interim zoning, the county issued stop work orders on tow of the three duplexes which the developer planned on constructing.

Sprint Spectrum v. City of Medina, 94 F. Supp. 1036 (5/3/1996). The federal district court in Seattle upheld a Medina ordinance which imposed a six month moratorium on issuance of permits for additional wireless communications facilities (such as antenna towers) within its boundaries. The court ruled that the ordinance did not violate section 704 of the Telecommunications Act of 1996 or the Omnibus Budget Reconciliation Act of 1993.

OPAL v. Adams County, 128 Wn.2d 869 (1996). This SEPA case deals with a challenge to the adequacy of an EIS, and it provides guidance regarding how to determine whether a project is "public" or "private." (If private, the EIS need not include a discussion of offsite alternatives; if public, offsite alternatives must be addressed.) The case also discusses phased environmental review, and ex parte contacts between a member of an administrative quasi- judicial decision making body and an interested party.

Philadelphia II v. Gregoire, 128 Wn.2d 707 (1996). This case involves a state-wide initiative, but is applicable to city initiatives. The supreme court held that a court may review a proposed initiative before its submission to the voters to determine if it is within the scope of the initiative power established by Article II, Ch. 1 of the state constitution. Initiatives must be legislative in nature and within the scope of authority of the jurisdiction in which it is to apply.

In Re Beasley, 128 Wn.2d 419 (1996). This case examines the specificity needed for a recall petition. The case deals with an attempted recall of school board members and discusses the evidentiary basis needed to support the facts recited in a recall petition.

DOE I v. Washington State Patrol, 80 Wn. App. 296 (1996). This case points out the need to provide a written response within five days when there is a public disclosure request and the city does not intend to make the disclosure within five days. The case also provides a good example of how a city can utilize the procedure outlined in RCW 42.17.330 to obtain a court review of a disclosure issue when there is a third party potentially impacted by the disclosure.

Whatcom County v. City of Bellingham, 128 Wn.2d 537 (1996). Washington State Supreme Court, decided February 1, 1996. The court held that the city's repeal of most, but not all, of its criminal code, so as to make the county responsible for criminal justice costs, brings it within the requirements of RCW 3.50.800. This statute, which applies when a city repeals its criminal code "in its entirety," requires the city to either reach an agreement with the county for payment of the reasonable costs associated with the prosecution, adjudication, and sentencing in criminal cases or, if agreement cannot be reached, to submit the issue to arbitration. The court concluded that the repeal of a significant portion of a municipal code that defines crimes effects a "de facto repeal" that is equivalent to a repeal of the criminal code in it entirety. The result is the same: the city's criminal justice costs are shifted to the county. RCW 3.50.800 requires that the city compensate the county for that result.

1995

State v. Williams, 128 Wn.2d 341 (decided 12/21/95). The court held that local ordinance defining intoxication for purposes of driving while intoxicated at less than .10 grams per 210 liters of breath violates the uniformity requirements of RCW 46.08.020 and .030, and is invalid.

Vancouver School District v. Service Employees International Union, 79 Wn.App. 905 (December, 1995). The court held that a discharged employee cannot prevail on a claim that the discharge was in retaliation for conduct protected by collective bargaining rights unless the employee establishes, by a preponderance of the evidence, that (1) the employee engaged in protected union activity and (2) retaliation for such activity was a substantial or motivating factor in the employer's decision to discharge the employee. Also, the court ruled that employee activity otherwise protected by collective bargaining rights loses that protection if the activity is unreasonable.

Saldin Sec. v. Snohomish County, 79 Wn.App 932 (December, 1995). The court of appeals reversed the trial court, holding that a party may not seek judicial review of a threshold procedural determination under SEPA until the decision making agency has taken final action to either approve or disapprove the development proposal. The court also held that a writ of certiorari should not be issued under Const. Article IV, chapter 6 to review administrative action unless the action was arbitrary and capricious.

Matson v. Clark Board of Commissioners, 79 Wn.App 641 (1995). Division Two, decided November 1, 1995. The court upheld a county moratorium and interim zoning control, discussing the relationship between vested rights, the Growth Management Act, and interim zoning controls enacted pursuant to RCW 35.63.200. The court also clarified the standard when reviewing emergency enactment of moratoriums, requiring that emergency legislation include a statement of the underlying emergent facts; a mere declaration of an emergency is not sufficient.

Vashon Island v. Boundary Review Bd., 127 Wn.2d 759 (1995). The court ruled that in counties required or choosing to plan under the Growth Management Act incorporation of territory lying outside of an urban growth boundary is prohibited by RCW 36.93.150(2).

Servais v. Port of Bellingham, 127 Wn.2d 820 (1995). The Supreme Court upheld the prior Court of Appeals decision in this case, but more narrowly defined the term "research data" as it is used in the public disclosure exemption found at RCW 42.17.310(1)(h).

Sunderland Family Treatment Services v. City of Pasco, 127 Wn.2d 782, (1995). Wash. Supreme Court., 10/19/95. In the first appellate ruling on the Washington Housing Policy Act the state Supreme Court has ruled that the anti- discrimination statute's fair housing protections for the handicapped do not extend to "troubled youth" staying in a "crisis residential center" located in a residential neighborhood.

Covell v. City of Seattle, 127 Wn.2d 874, (1995). Washington Supreme Court, decided Nov. 2, 1995. This case declares unconstitutional Seattle's street utility ordinance, adopted pursuant to state legislation passed in 1990 to provide another source of revenue for transportation improvements and expenses. The court held that the revenues raised constitute a property tax, and thus violate Art. 7, Chapter 1, because the tax is not uniform.

White v. State, 78 Wn. App. 824, (1995). This 42 USC 1983 action dealt with a state employee, but the holding would also apply to city employees. The court held that a public employee is entitled to reinstatement for a discharge which infringes on the employee's constitutionally protected interest in freedom of speech. The opinion outlines a four step analysis to determine if the public employer has violated an employee's right to free speech.

Bjarnson v. Kitsap County, 78 Wn. App. 840, (1995). Among other issues, this rezone case dealt with an appearance of fairness issue. The Court held that any appearance of fairness problems arising from allegedly improper conduct by a member of a decision making board are cured if the remaining members of the board who are entitled to act conduct a rehearing and there is no question of bias or the appearance of bias of the remaining members.

Bothell v. Gutshmidt, 78 Wn.App 654 (1995). This opinion deals with challenges to a city's DWI ordinance due to procedural irregularities in the clerk's authentication and recording duties when the city adopted the MTO. The court held that any irregularity in the nondiscretionary or ministerial duties of authenticating and recording by the city clerk cannot invalidate an ordinance enacted by the authorities vested with discretionary legislative powers. There is a good summary of the basic presumption that ordinances are validly enacted. A person challenging the validity of an ordinance has the burden of showing that the action was improper, and thus rebut the presumption.

Sundberg v. Evans, 78 Wn.App 616 (1995). This case deals with a county employee who allegedly gave incorrect zoning information to property owners considering a property purchase. Though the case deals with governmental immunity and the public duty doctrine, it does not provide much analysis, nor change any of the established principals. Nevertheless, if you want to keep abreast of these issues, you should at least give the case a quick read. The underlying facts are all too common: a public employee provides zoning information which is either incorrect, or misunderstood by a property owner.

Goodman v. Boeing, 127 Wn.2d 401 (August 1995). The state supreme court ruled that the exclusive remedy provisions of the Industrial Insurance Act do not bar recovery of damages against an employer for physical injuries or emotional distress in a negligence action arising from handicap discrimination associated with an industrial insurance-compensable disability caused by a workplace injury. The duty of an employer to reasonably accommodate an employee's handicap arises when the employee gives notice of a disability and physical limitation.

Leonard v. Spokane, 127 Wn.2d 195 (July 1995). The court held that the Community Redevelopment Financing Act of 1982, Chapter 39.88 RCW, is unconstitutional. This is the long awaited ruling on what is called "tax increment financing." (When the Seattle commons project was first being discussed several years ago, tax increment financing was proposed as a way to possibly fund the project.)

JJR Inc. v. Seattle, 126 Wn.2d 1, (1995) decided 3/23/95, by the Washington Supreme Court. The court declared a portion of the Seattle adult entertainment ordinance violated the State Constitution. The court held that Article I Sec. 5 requires that an administrative revocation or suspension of an adult entertainment license be stayed pending judicial review of the administration action. Check to see if your city's statute provides for a mandatory stay pending judicial appeal of a decision adverse to a licensee.

Cranwell v. Mesee, 77 Wn.App 90 (Feb. 1995). This case examined Seattle's inspection program. The court dealt with tenant authority to consent to search of leased space and common areas.

Methodist Church v. Hearing Examiner, 76 Wn.App 572 (1995). This is, hopefully, the last in a series of cases dealing with Seattle's Landmarks Preservation Ordinance. The court has upheld the ordinance except insofar as it places restrictions on changes to or the use of church property that is being used primarily for religious purposes. [Problems are anticipated as the regulation still requires that the city determine what are "religious purposes."] Cities contemplating preservation of historic church structures should carefully read this case and the cases cited within the opinion.

Luxembourg v. Snohomish County, 76 Wn.App. 502 (1995). The single headnote to this case is brief and to the point: A local government may not condition approval of a subdivision on the dedication of property under RCW 58.17.110(2) unless the need for dedication arises from the development of the property. A dedication requirement that would not remedy any problem caused by the subdivision effects an unconstitutional taking of property without compensation.

1994

Whatcom County v. Brisbane, 125 Wn.2d 345 (1994). The Supreme Court decided December 8, 1994, that referendum rights of a home rule county are subordinate to the express statutory requirements of the Growth Management Act. The case involves county referendum rights. Though the public has statutory rights to participate in the planning process, the powers of initiative and referendum do not extend to ordinances enacted to implement the requirements of the Growth Management Act.

PAWS v. U.W., 125 Wn.2d 243 (1994). This lengthy case concerns disclosure of unfunded grant proposals at University of Washington. However, the case contains broad language concerning interpretation of disclosure exemptions in RCW 42.17.310, and it contains an interesting footnote #7, concerning Dawson v. Daly, 120 Wn.2d 782 (1993), which is forcefully rejected by Justice Brachtenbach in a strong dissent.

Castle Homes v. Brier, 76 Wn.App 95 (1994). The court held that under RCW 82.02.020, mitigation fees paid by a developer as part of a voluntary agreement cannot be for the purpose of funding improvements to mitigate problems which are not the direct consequence of the development. The local government has the burden of showing that the improvements are reasonably necessary to mitigate the direct impact of the development.

Seattle v. McCready, 124 Wn.2d 300 (1994). This case along with the same parties' prior trip to the Supreme Court--see Seattle v. McCready, 123 Wn.2d 260 (1994)--seriously impacts the abilities of cities to obtain civil warrants to inspect buildings and property suspected of harboring health or safety code violations. These cases must be read before the city code enforcement officer or building inspector attempt any nonconsensual searches. The broad language of the Uniform Building Code does not provide adequate authority for nonconsensual intrusions into private property. MRSC has an article by Miriam Reed of the Seattle Law Department which analyzes the impact of the McCready cases. ("Administrative Warrants after McCready," by Miriam Reed, Legal Notes, MRSC Information Bulletin No. 488, 1994.)

Trimen Development Co. v. King County, 124 Wn.2d 261 (July, 1994). The Washington Supreme Court held that a statue requiring developers to pay a fee if they decide not to dedicate or reserve land for open space prior to obtaining subdivision approval is not an illegal tax.

Weyerhaeuser v. Pierce County, 124 Wn.2d 26 (May,1994). This case deals with the adequacy of an EIS for a sanitary landfill. The court also discusses the need for findings of fact and conclusions of law which are detailed, not conclusory, and which provide an adequate basis for review. Findings are inadequate if they state general conclusions after summarizing the parties' positions and the evidence presented. Note that the court required detailed consideration of alternative sites for the landfill, because even when a private company is seeking the permit, solid waste disposal is a governmental function.

Erickson & Associates v. McLerran, 123 Wn.2d 864 (1994). This case involves vesting rights under Seattle's Master Use Permit ordinance. Though the case interprets Seattle's ordinance and procedure, there is a discussion of the vested rights doctrine which affirms a city's right to enact their own vesting schemes to suit local needs.

Fire Protec. Dists. v. Housing Authority, 123 Wn.2d 819 (May, 1994). The court held that public housing authorities, authorized pursuant to RCW 35.82, are required by statute to contract for fire protection and emergency medical services, and that housing authorities are liable for the payment of benefit charges for those years in which they did not contract with the fire protection districts.

State v. Volkmer, 73 Wn.App. 89 (Feb. 1994) This case explains the limited circumstances when the council in a town can hire an independent attorney, and have the town pay the cost. (Though this holding of the case is limited to towns, the court would probably rule similarly in code cities.) Also, the court held that a town mayor does not have a duty to sign an invalid ordinance under RCW 35.27.290, which provides that every town ordinance shall be signed by the mayor.

Rivett v. Tacoma, 123 Wn.2d 573 (1994). The Court held unconstitutional a Tacoma ordinance which attempted to transfer liability of the city for improper maintenance of sidewalks to the adjoining property owner. The abolition of governmental immunity precludes requiring the adjoining property owner to immunize the city for negligence in sidewalk maintenance.

Seattle v. McCready, 123 Wn.2d 260 (Feb. 1994). The Wn. Sup. Ct. ruled that a search warrant cannot issue on less than probable cause unless authorized by statute or court rule, and there is no such statute or rule concerning issuance of warrants to enforce building code violations. A superior court does not have subject matter jurisdiction to issue warrants to enforce municipal ordinances. The uniform building codes adopted by the state and city do not contain authorization for issuance of search warrants.

1993

Cox v. Lynnwood, 72 Wn.App 1 (Dec. 1993). This land use case is a must read for all involved in the process. Lynnwood denied a boundary line adjustment even though the request met the technical requirements of the city's code. The court found that the city official had acted arbitrarily and capriciously, held that a 42 U.S.C. section 1983 action for denial of substantive due process was appropriate, and held that the city was liable for lost profits and attorney fees.

King County v. Washington State Boundary Review Board, 122 Wn.2d 648, decided November, 4, 1993. This lengthy case deals with the interrelationship of the boundary review boards, SEPA, and the Growth Management Act. It should be reviewed by all counsel dealing with annexation issues. The court held that a proposed land- use related action (annexation) is not insulated from full environmental review simply because there are no immediate land- use changes which will flow from the proposed action. which will flow from the proposed action.